State of Iowa v. Jarrod Dale Majors

IN THE SUPREME COURT OF IOWA
No. 18–0563

Filed March 6, 2020

STATE OF IOWA,

Appellee,

vs.

JARROD DALE MAJORS,

Appellant.

Appeal from the Iowa District Court for Taylor County, John D.

Lloyd, Judge.

Defendant appeals from a second resentencing order imposing a

mandatory minimum sentence for attempted murder committed as a

juvenile. AFFIRMED.

Bradley Bender, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, and Clinton L. Spurrier, County Attorney, for appellee.
 2

WATERMAN, Justice.

In this appeal, we must decide whether the district court abused its

discretion by imposing a seventeen and one-half-year mandatory

minimum prison term before parole eligibility on the defendant’s second

resentencing for attempted murder during a home invasion and whether

defense counsel provided constitutionally deficient representation. The

defendant was age seventeen at the time of the crime in 2002, and he has

been resentenced twice as our caselaw on juvenile sentencing evolved. See

State v. Majors, 897 N.W.2d 124, 127 (Iowa 2017) (remanding for

resentencing in light of State v. Roby, 897 N.W.2d 127 (Iowa 2017)

(plurality opinion), decided the same day). The defendant, now age thirty-

five, appeals his latest resentencing, contending that the district court

failed to follow our court’s 2017 mandate to apply Roby and that his

counsel was ineffective for failing to present a defense expert on the youth

sentencing factors. We retained the appeal.

On our review, we determine the district court did not abuse its

discretion by imposing the mandatory minimum after considering the

youth sentencing factors under Roby. The sentence is supported by

testimony from the State’s expert. The defendant personally chose not to

retain a defense expert, and we conclude his counsel was not

constitutionally ineffective for relying on cross-examination of the State’s

expert without retaining a defense expert that his client chose to forgo.

Accordingly, we affirm the district court’s judgment of sentence.

I. Background Facts and Proceedings.

On May 30, 2002, Jarrod Dale Majors was a seventeen-year-old high

school senior fifteen days away from his eighteenth birthday. He lived with

his parents on a quiet street in Bedford, Iowa. Majors had become

obsessed with Hollie Peckham, a thirty-year-old woman who lived across
 3

the street with her thirty-two-year-old husband, Jamie Peckham, and their

twenty-two-month-old twins. While the Peckhams were away one evening,

Majors entered their home, hid inside the closet of the master bedroom,

and awaited their return. Majors wore a ski mask and gloves to avoid

identification. He attached a large knife to his waistband, wrapped a roll

of duct tape around his wrist, and held a .22 caliber rifle with a plastic

soda bottle taped to the barrel to act as a makeshift silencer.

When the Peckhams returned home, Hollie went upstairs while

Jamie remained downstairs with the twins. As Hollie entered her bedroom,

Majors emerged from the closet and attacked while pointing the gun at

her. Hollie screamed for her husband, and Majors told her that he was

not there, which led Hollie to believe Majors had killed him. She ran out

of the bedroom, down the stairs, and out of the house screaming for help.

Hollie found a neighbor, who accompanied her back to the Peckham home

while his wife called the police. Meanwhile, Jamie subdued Majors after a

struggle witnessed by the toddlers. The neighbor helped Jamie restrain

Majors until the police arrived. Jamie later testified that he knew who the

assailant was before removing his ski mask because he had repeatedly

seen Majors trespassing and peering in bathroom windows at Hollie over

the preceding two years. Hollie injured her ankle during the incident, and

the entire family was emotionally traumatized. Jamie described it at the

most recent resentencing hearing as “[k]ind of feel[ing] like there’s a 9-11

that happened where we survived, but it changed everything. It’s a

watershed moment.”

Majors initially told the police that he was paid $100 to commit the

crime as a prank. His story later changed to claiming he had been

hallucinating and could not remember the crime due to using drugs and

prolonged sleep deprivation. As motive for his crime, he claimed to believe
 4

that Jamie was going to attack him and poison his dog. Majors had no

prior criminal record apart from a single offense for possession of alcohol

as a minor.

Majors pled guilty to attempted murder in exchange for the State’s

agreement to dismiss the remaining ten charges upon the expiration of the

appeal deadline and on the condition that there would be no appeal.

Majors was sentenced on January 22, 2003, to a prison term of up to

twenty-five years with a mandatory minimum of seventeen and one-half

years before parole eligibility. Majors appealed the sentence in violation of

the plea agreement, prompting the county attorney to refile the dismissed

counts. On May 13, Majors entered into a second plea agreement by

pleading guilty to burglary in the second degree. He was sentenced to a

ten-year term for that charge, which was to be served consecutively to his

sentence for attempted murder. In exchange, the State agreed to amend

the charge of burglary from first to second degree and to dismiss the

remaining charges after the appeal deadline as long as Majors did not

appeal. Majors did not file a direct appeal from his sentence.

In 2014, we decided State v. Lyle, holding that any automatic

mandatory minimum sentences of imprisonment for youthful offenders

violated the Iowa Constitution’s provision against cruel and unusual

punishment. 854 N.W.2d 378, 404 (Iowa 2014). Majors filed for a

resentencing hearing based on Lyle. On September 16 of that year, when

Majors was thirty years old, the district court conducted a resentencing

hearing applying the Lyle factors.

Majors was resentenced to a term of incarceration of up to twenty-

five years for attempted murder with a mandatory minimum of seventeen

and one-half-years before parole eligibility. His ten-year sentence on the

burglary conviction remained in place with the sentences to be served
 5

consecutively. Majors appealed, and the court of appeals affirmed the

sentence after determining the district court had properly considered the

Lyle factors. On further review, we determined that the district court

abused its discretion by imposing a minimum period of incarceration

without eligibility for parole under Roby, decided the same day. Majors,

897 N.W.2d at 127. We reversed Majors’ sentence and remanded for a

second resentencing consistent with the Lyle factors as explained in Roby,

which stated that “the factors must not normally be used to impose a

minimum sentence of incarceration without parole unless expert evidence

supports the use of the factors to reach such a result.” 897 N.W.2d at

147.

At the second resentencing hearing on March 5, 2018, when Majors

was age thirty-three, defense counsel told the court his client chose not to

retain an expert, and the court conducted a colloquy to confirm this was

Majors’ own decision:

MR. BOOTH: . . . I’ve had discussions with Mr. Majors
in regard to whether or not we should have requested or tried
to obtain an independent psychiatric evaluation since we
knew the State was intending to call a psychiatrist to testify
and to subject the defendant to a psychiatric evaluation on
behalf of the State.
In my discussions with Mr. Majors, it’s my
understanding that he does not wish to delay these
proceedings any longer, that he is comfortable proceeding
without the assistance of an independent psychiatric
evaluation, Your Honor. . . .
[the Court swore in Majors]
....
MR. BOOTH: I’ve also advised you that we could ask the
court for State funds in order to hire a psychiatrist or conduct
an independent psychiatric evaluation to support your
position at sentencing. Are you aware of that?
THE DEFENDANT: Yes.
MR. BOOTH: And was it your decision that we not hire
an independent or obtain an independent evaluation?
 6
THE DEFENDANT: Yes.
MR. BOOTH: Was that because your belief is that we
should proceed -- your desire is to not have any further delays
and proceed with resentencing; is that correct?
THE DEFENDANT: That’s correct.
MR. BOOTH: Thank you, Your Honor.
THE COURT: Mr. Majors, without telling me what [you
and] Mr. Booth discussed, do you feel you’ve had enough time
to discuss this issue with him, or would you like some more
time to discuss it with him?
THE DEFENDANT: I believe I’ve had enough time.
THE COURT: Is it your decision that you not ask for any
further continuances?
THE DEFENDANT: Yes, my decision.

The court additionally offered to leave the record open to give Majors an

opportunity to submit additional evidence later, but Majors declined the

offer.

The hearing proceeded with live testimony from two witnesses:

Deputy Nate Bucher and Dr. Theresa Clemmons, a psychiatrist at the

department of corrections serving as the State’s expert. Jamie Peckham

gave an oral victim-impact statement.

Dr. Clemmons formed her opinions after reviewing Majors’ records

and interviewing him by teleconference. Dr. Clemmons noted Majors’ prior

inconsistent statements regarding his mindset during the crime, but she

stated that “when we discussed what happened he was able to tell me

specifically” what he did and that Majors admitted he did not do the crime

on a dare. Dr. Clemmons testified that “[she did not] believe he’s taking

full responsibility for the entirety of all of his actions the night of the

offense.” The prosecutor and defense counsel each questioned

Dr. Clemmons extensively regarding her conclusions under the five

sentencing factors. Those factors are

(1) the age of the offender and the features of youthful
behavior, such as “immaturity, impetuosity, and failure to
 7
appreciate risks and consequences”; (2) the particular “family
and home environment” that surround the youth; (3) the
circumstances of the particular crime and all circumstances
relating to youth that may have played a role in the
commission of the crime; (4) the challenges for youthful
offenders in navigating through the criminal process; and (5)
the possibility of rehabilitation and the capacity for change.

Lyle, 854 N.W.2d at 404 n.10 (quoting Miller v. Alabama, 567 U.S. 460,

477–78, 132 S. Ct. 2455, 2468 (2012)); see also Roby, 897 N.W.2d at 135

(quoting same factors).

The prosecutor began with the first factor.

The first one is the youthful offender status or fact, that
the person was in fact not 18 years old at the time of the
commission of the crime.
....
Q. In looking at that factor, how did you think that
played into the defendant’s situation in this case? In other
words, do you feel that his status in the case at the time this
happened would mitigate his responsibility for what
happened, substantially or minimally mitigate it? A. I would
say more so minimally mitigate it. Looking at the overall
youthful offender, the idea of a youthful offender is the idea of
brain maturing and whether brains mature enough to make
good decisions, whether you have good control of your
emotions, good control [over] impulsivity, have good
development of your frontal lobe specifically, and the idea of
that is that over time your brain does develop, it matures.
But looking at his age, from 17 years and 50 weeks to
18 years is a very small change. It’s not a switch. It’s not on
an 18th birthday you flip a switch and the brain is fully
mature. It actually takes much longer than the 18th birthday
to reach the full maturity, and some people say your brain is
ever changing during your lifetime, and we have no mark for
full brain maturity.
So looking at kind of those ideas, there would have been
minimal brain change or brain growth or brain development
within those two weeks. So it wouldn’t have necessarily
changed his ability to make decisions, his ability to control
emotions better or worse, his ability to have impulse control,
that sort of thing.
....
Q. So in terms of mitigating his responsibility for the
crime, at best [the first factor] would have minimal mitigating
value; would that be fair? A. Yes.
 8

On cross-examination, Dr. Clemmons stated that she was looking

at this factor from the perspective of whether Majors was a risk to all

parties involved and emphasized her focus on whether he displayed any

empathy. Majors’ counsel asked whether she thought Majors may not

have contemplated the risks and consequences to the victims, and she

replied that she did not specifically ask him that so she could not answer.

The prosecutor’s direct examination then elicited the expert’s

testimony on the second factor, Majors’ supportive family and home

environment.

A. He described his family as supportive. He described his
relationship with his mother as a good relationship. He and
his mother still have frequent visits, and they talk regularly.
He mentioned that his mother was supportive growing up. He
denied any abuse.
He did mention with his father the physical abuse that
we talked about, but he did mention that through the years
that he and his father did have a good, supportive relationship
over the years, also came up for visits as well.
And then him and his brother also have a good
relationship, from my understanding. Growing up they had
some similar friends. And they denied any abuse going back
and forth. He mentioned they would have had, you know, the
typical brother relationship where they probably roughhouse
a bit and that but no abuse back and forth between the boys.
Q. So the only negative he described to you in relation
to his family relationship was a period of prior abuse by his
father; is that correct? A. Yes.
Q. And that would have ended when he would have
been roughly in sixth grade; correct? A. Yes, he mentioned
the physical abuse ended in sixth grade.
Q. He described to you after that period of time he and
his father developed a good relationship? A. To my
understanding, yes.

Dr. Clemmons testified that Majors’ other familial relationships with his

brother and mother had been good at the time of the crime and continue

to be, that there were no substance abuse issues within the family or other
 9

abuse, and that it would be fair to say that Majors basically described a

positive, supportive family.

Q. So again in terms of this factor, did you say anything
about his home environment or relationship would mitigate
his actions in terms of the crime? A. At the time of the
offense, there didn’t appear to be anything going on within the
family that would have mitigated anything.
Q. The people that you deal with in the prison system,
is it fairly common that many of them have very troubled home
lives? A. Absolutely.
Q. And that’s contributed to them being where they’re
at; would that be fair to say? A. Absolutely.
Q. And you didn’t see anything in this case; did you?
A. Not at the time of offense.
Q. Would it be fair to say that factor would have
minimum mitigating value in this case? A. Yes.

Majors’ counsel cross-examined Dr. Clemmons regarding how

Majors’ childhood scoliosis, surgery in the sixth grade, and his inability to

participate in sports affected his home environment. In response, she

noted she was focusing on his home environment at the time of the crime

many years later.

The prosecutor then turned to the third factor, the circumstances of

the crime, in which Dr. Clemmons noted the absence of peer pressure.

Q. The next factor I wanted to look at is the
circumstances of the crime and I think in terms of the Iowa
Supreme Court looking at the issue of outside influences
significantly. Did you look at that issue as well in relation to
the defendant? A Yes.
Q. And in terms of involvement of other youthful people
with him, did you find any evidence of that in this particular
case? A. No, I did not.
Q. I believe the supreme court case indicated if they
were jointly committing crimes with others. In this case is
there any evidence whatsoever that anyone else participated
with the defendant in the commission of this crime? A. No.
Q. Is there any indication that anybody else was
involved in the planning or preparation for this crime? A. No.
 10
Q. In terms of those factors such as peer pressure, did
he indicate to you any indication that peer pressure played a
role in what he did that night? A. No.

Dr. Clemmons went on to state that she would not classify Majors’ crime

as an impulsive one, but rather it appeared to be planned given the

clothing to mask his identity, the rifle with a makeshift silencer, and the

knife as a backup weapon.

Q. In terms of what we have here, we have one who had
a well thought out crime and did so in a way that was going
to minimize their likelihood of being caught and held
accountable; would that be correct? A. That is correct.
Q. Again in terms of the circumstances of the crime,
would you say that the factors and circumstances would
provide minimal mitigating value of the defendant’s youthful
offender in this case? A. Correct.

On cross-examination, defense counsel challenged Dr. Clemmons about

impulsivity and her belief that this was a planned crime.

When discussing the fourth factor, the defendant’s competency to

navigate legal proceedings, Dr. Clemmons testified on direct that she had

reviewed Majors’ competency evaluation from his forensic psychiatric

hospitalization close in time to the crime.

Q. And were you able to determine from that whether
the defendant was competent to understand what he was
doing in terms of being able to assist in his defense in the case
that was pending against him? A. Yes. . . . In the letter from
Dr. Hartman from August 2, 2002, Dr. Hartman mentions
that Mr. Majors was competent to participate in judicial
proceedings. He stated he currently does not have a mental
condition which prevents him from appreciating his charge,
understanding the proceedings or assisting in his own
defense.
I reviewed his history and available data surrounding
the activities in question and would indicate that Mr. Majors
understood the nature and quality of behavior in which he
was allegedly involved. That statement and information would
indicate at that time he had sufficient competency to
distinguish right from wrong. It is equally this writer’s opinion
that at this time he had capacity to form intent consistent with
accountability.
 11
Dr. Welch, who was also the psychologist who met with
him, stated he does appear to be well aware of the charges
against him and can aid in his own defense.
So both a licensed psychologist and a psychiatrist
mentioned that they thought he had no -- there was no
concern for diminished capacity or competency at that time.
Q. And that was based on an evaluation done in July
of 2002; correct? A. Yes, that is correct.
Q. Would you have expected that from May 25, 2002,
when the evaluation was done, any reasonable likelihood
there would have been a significant change in his mental
capacity and competency during that small window of time?
A. None of the information I have would have indicated that,
no.
Q. In this case would you say it’s also significant that
to an extent the defendant kind of throughout the progress of
this case kind of went through a checklist of more or less
minimizing any responsibility? First someone there, to
offering me money, next thing I’ve got a mental competency
issue, I don’t understand to the point of asking other prisoners
how to make it sound more effective, to I’m not responsible
because of use of drugs and a blackout? A. It seemed that he
was definitely trying to find ways to reduce his responsibility
for the actions that he had performed.
Q. And doing ways recognized by the legal system;
correct? A. Correct.
Q. Diminished capacity would provide a potential legal
defense; correct? A. Correct.
Q. So would substance abuse intoxication?
A. Correct.
Q. Again I would ask you in this case do you feel that,
based upon your information, that the defendant was fully
able to understand the legal proceedings and navigate the
legal system at that time? A. I don’t have any information to
the contrary.
Q. So again this would be another minimal mitigating
value in terms of his being a youthful offender; correct?
A. Yes.

Defense counsel cross-examined Dr. Clemmons about Majors’ difficulty in

school.

In terms of going into the alternative school, it sounds
like a smaller class size, more attention, and also he
mentioned to me it was only three hours a day versus the full
seven to eight hours of schooling, which was his preference.
 12

Lastly, Dr. Clemmons addressed the fifth factor, capacity for

rehabilitation, recognizing in this case that they had the benefit of sixteen

years of hindsight since this 2002 crime, Majors’ prison disciplinary

history, and his long-standing and continuing lack of empathy and

remorse.

Q. And in terms of his rehabilitative capacity, what
would your thoughts be in that area? A. I have several
thoughts in that area. He does have . . . the ability in terms
of understanding what the treatment program would be like.
His IQ is good, so he would be able to understand the content.
He does not have any behavior problems right now. He
hasn’t had disciplin[e] since 2014, so there wouldn’t be any
problems with him sitting in class, going through treatment,
performing those kind of things.
The main point that I’ve been concerned about -- and I
think this was also mentioned in the presentence
investigation from 2002 but really gets him out of his
evaluation -- was the concern for feelings of remorse, empathy
for the victims and also feelings of guilt for his actions.
That really comes down to the core of what the
rehabilitation is in terms of taking responsibility for the
action, admitting wrongdoing and then going through that
treatment with kind of that desire to want to change so that
way in the future whatever underlying factor led you to that
offense doesn’t lead you to that offense in the future.
Q. Or other offenses? A. Right.
Q. In this case did you feel that the defendant showed
remorse for what he had done? A. I didn’t get that sense, no.
Q. We’ve already talked about the victim empathy and
accepting responsibility issues. And so together with those
three, in your opinion, do you think those things all will
reduce the effectiveness of full rehabilitation in relation to the
defendant? A. That would reduce the rehabilitation, correct.
Q. If you’re looking at whether the prospect of him
being a good candidate for parole rehabilitation, that would be
something that, based upon the information you’ve looked at
and reviewed, you would say he’s not a good prospect for full
rehabilitation; would that be fair? A. I would say that’s
correct.
Q. Again in evaluating this factor, rehabilitation would
be something that would be a minimal mitigating value in our
analysis of assessment of what the appropriate sentence
would be; would you say that’s fair? A. Yes.
 13

On cross-examination, Dr. Clemmons acknowledged that Majors had

shown a capacity for change since 2014 and that Majors apologized to the

Peckhams at his previous sentencing hearings, but she noted his motive

for secondary gain. Dr. Clemmons admitted to working primarily with

adults and that Majors’ was her first resentencing hearing on the

Miller/Lyle/Roby factors.

The district court subsequently issued its resentencing order

stating, “The court will consider the five factors as applied to this case, in

light of the explication of those factors contained in Roby.” The court

outlined in considerable detail Roby’s description of each factor and its

analysis of each factor’s application to Majors’ case.

Regarding the first factor, age and maturity, the district court noted

that Majors was fifteen days shy of his eighteenth birthday at the time of

the crime, and found

it [was] reasonable to assume that he would have been more
mature than a 15 or 16 year old defendant and not
appreciably less mature than if he had committed the crime
two weeks later, at which point he would have been treated as
an adult without question.

Elaborating, the district court cited to the evaluation done at the Iowa

Medical and Classification Center at Oakdale two months after the crime

that opined Majors understood the nature and quality of his behavior and

noted that he had been soliciting help from other inmates regarding how

to look more psychiatrically ill to aid in his defense. The district court

acknowledged that the report identified Majors as having “limited insight

and impaired judgment and being emotionally immature” as well as being

a loner bullied throughout his childhood. Noting Roby emphasized the

importance of expert testimony, the district court referenced

Dr. Clemmons’ determination that there was nothing about Majors’ age
 14

that mitigated against a mandatory sentence. “It does not appear to the

court that the defendant’s age is a mitigating factor in light of the

contemporaneous assessment and the current psychiatric testimony.”

Turning to the second factor, the family and home environment, the

district court noted that “[n]o one point[ed] to any home environment facts

that influenced the defendant’s behavior.” Indeed, Majors had no juvenile

criminal history apart from a single offense of possession of alcohol. The

court referred to the physical abuse by Majors’ father until about the sixth

grade, noting the father–son relationship subsequently improved and was

“in good shape” at the time of the crime. Majors himself had denied any

abuse issues, and his father had contacted the facility where Majors was

being held numerous times to advocate for greater phone access. The

district court noted, “Dr. Clemmons also did not identify any family or

household issues that in her opinion would have mitigated the offense.

The court concludes that this factor does not mitigate the defendant’s

conduct.”

In considering the third factor, the circumstances of the crime and

attendant youth factors, the district court determined,

This crime was a solo act by the defendant. There was
no one involved who encouraged or goaded the defendant into
acting. There is no indication that he was in any way seeking
to curry favor with or win approval of any peer group.

The court relied in part on the Oakdale report and Dr. Clemmons’

testimony.

Dr. Clemmons also found no indications of any outside
influences on the defendant in the planning and execution of
this crime. In addition, she noted the deliberate nature of the
crime -- the use of a ski mask and gloves, shoes with no
identifiable tread, a rifle with a homemade silencer attached
and a backup weapon -- was supportive of a finding that the
defendant was acting for himself and not impulsively or at the
behest of another.
 15

The district court emphasized the conclusions in the Oakdale report that

in 2002 Majors “understood the nature and quality of [his] behavior [and] at

that time he had the capacity to form intent consistent with accountability.”

The district court concluded that the third factor was not mitigating.

Regarding the fourth factor, competency to navigate the legal

system, the district court stated it “fails to see how this factor mitigates in

the defendant’s favor” and explained why:

While the crime occurred when the defendant was still a
minor, the only part of the criminal proceeding that occurred
while he was a minor was his initial appearance and his
preliminary hearing at which he successfully obtained
dismissal of two counts that had been filed initially. The entire
remainder of this criminal proceeding took place after he had
attained legal adult status. In addition, he was evaluated for
competency to stand trial as noted above. This evaluation
occurred in July 2002 and preceded the bulk of the
proceedings in this case. This evaluation found him
competent to assist in his own defense and to stand trial.
As an additional consideration, the defendant
demonstrated an understanding of the legal system that belies
any disability due to his age. He claimed to be suicidal in
order to get out of the Taylor County jail. He sought an
evaluation of his competency in order to try to aid his case.
He solicited other inmates at Oakdale for ideas on how he
could appear more worthy of a determination of psychiatric
incompetency. He tried out various lies in an effort to frame
an explanation that would allow him to avoid or ameliorate his
culpability. None of those actions indicate a defendant
overwhelmed by the system due to his age or immaturity.
Dr. Clemmons also found nothing in the 2002 evaluation that
would indicate that the defendant was overwhelmed by the
system and pointed in her testimony to these additional
factors as support for that conclusion.

Finally, the district court turned to the fifth factor, capacity for

reform, and noted that if it were only considering the defendant at the time

of the original sentencing in evaluating this factor, his youth and potential

to reform might weakly mitigate in Majors’ favor. Focusing on

Dr. Clemmons’ testimony, the court recognized her concern that Majors

has never shown empathy for the victims of his crime and his lack of
 16

empathy “was a trait he brought to prison with him.” The court expressed

uncertainty over how to consider Majors’ prison conduct when evaluating

this factor, but concluded, “The only factor that came close to favoring

mitigation, the possibility of reform, is further weakened if not destroyed

by his prison conduct.” Majors had numerous prison disciplinary

violations before Lyle was decided in 2014. His behavior improved after

our decision in Lyle, but he committed another major violation (providing

a fake urine sample to fool a urinalysis) upon returning from his 2018

resentencing hearing. The court concluded the fifth factor “would mitigate

in the defendant’s favor, albeit somewhat weakly in the court’s

assessment.”

The district court determined “[a] mandatory minimum sentence, in

the absence of mitigating factors and the presence of ‘a frightening crime,’

seems appropriate” and that

after careful consideration of the Lyle factors . . . the
mandatory minimum sentence for adults convicted of
attempted murder applies to this defendant and that he
should be subject to serve 70% of the sentence before
becoming eligible for parole.

The court resentenced Majors on the charge of attempted murder to the

same sentence as before, twenty-five years imprisonment with eligibility

for parole after serving a mandatory minimum of seventeen and one-half-

years. The district court concluded that Majors’ sentence for burglary was

not up for resentencing, and it remained a ten-year sentence that would

run consecutively to his sentence for attempted murder.

Majors filed this direct appeal, which we retained.
 17

II. Standard of Review.

If the sentence imposed is within the statutory limits, as it is here,

we review for an abuse of discretion. Roby, 897 N.W.2d at 137. As we

explained in Roby,

A discretionary sentencing ruling, similarly, may be [an abuse
of discretion] if a sentencing court fails to consider a relevant
factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or
considers only appropriate factors but nevertheless commits
a clear error of judgment by arriving at a sentence that lies
outside the limited range of choice dictated by the facts of the
case.

Id. at 138 (alteration in original) (quoting People v. Hyatt, 891 N.W.2d 549,

578 (Mich. Ct. App. 2016), judgment affirmed in part and reversed in part

by People v. Skinner, 917 N.W.2d 292, 295 (Mich. 2018)). “Sentencing

decisions of the district court are cloaked with a strong presumption in

their favor.” State v. Crooks, 911 N.W.2d 153, 171 (Iowa 2018); see also

State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

We review ineffective-assistance-of-counsel claims de novo. State v.

Ortiz, 905 N.W.2d 174, 179 (Iowa 2017). Normally such claims are

preserved for postconviction-relief actions, but ineffective-assistance-of-

counsel claims can be resolved on direct appeal when the record is
sufficient to allow a ruling. 1 State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).

III. Analysis.

Majors argues that the district court abused its discretion by

imposing a mandatory minimum sentence on remand and that his trial

1In State v. Macke, we held that the 2019 amendment to Iowa Code section 814.7
does not apply to a direct appeal from a judgment and sentence entered before the
statute’s effective date of July 1, 2019. 933 N.W.2d 226, 228 (Iowa 2019). Although
under the current version of Iowa Code section 814.7 Majors would not have a right to
direct appeal on an ineffective-assistance-of-counsel claim, he did have such a right at
the time his judgment and sentence was issued on April 2, 2018. As such, we will
consider Majors’ ineffective-assistance-of-counsel claim in this appeal.
 18

counsel was ineffective in failing to present expert testimony on the Lyle

factors at his 2018 resentencing. The State responds that the district

court properly applied the Lyle factors and that the mandatory minimum

was supported by expert testimony, while Majors’ own decision to forgo

retaining a defense expert precludes relief on his ineffective-assistance-of-

counsel claim.

A. No Abuse of Discretion. Our decisions have clarified that the

sentencing court must consider the Miller/Lyle/Roby factors in an

individualized sentencing hearing if it is contemplating imposing a

mandatory minimum sentence on a juvenile offender. Roby, 897 N.W.2d

at 148. The State must prove the defendant’s “irreparable corruption” for

a life-without-parole sentence. State v. Seats, 865 N.W.2d 545, 556 (Iowa

2015). That proof is not required for a shorter mandatory minimum

sentence.

We have given some procedural guidance. Our decision in Roby

allows district courts to impose minimum terms of incarceration “after a

complete and careful consideration of the relevant mitigating factors of

youth.” Roby, 897 N.W.2d at 148. Indeed, we stated that “‘[i]f the

mandatory minimum period of incarceration is warranted,’ we commanded

[our judges] to impose the sentence.” Id. at 143 (alteration in original)

(quoting Lyle, 854 N.W.2d at 404 n.10). If the factors are properly applied,

“the constitutional guarantee against cruel and unusual punishment is

satisfied.” Id. at 145. “[T]he factors must not normally be used to impose

a minimum sentence of incarceration without parole unless expert

evidence supports the use of the factors to reach such a result.” Id. at
 19

147. 2 We now turn to addressing what the district court must find in order

to impose a mandatory minimum sentence for a crime committed under

age eighteen.

Our earlier opinions have been criticized for running the risk of

“mak[ing] it difficult, if not practically impossible, for a sentencing judge

to ever impose any minimum term of incarceration.” Id. at 151 (Zager, J.,

dissenting); see also State v. White, 903 N.W.2d 331, 337 (Iowa 2017)

(Mansfield, J., dissenting) (“Our court has extended Miller to all mandatory

minimums but has yet to say what the substantive standard is. Plainly it

isn’t ‘irreparable corruption’ . . . . Still, our court hasn’t told district courts

what that standard is. This isn’t about moving the goal posts. The court

has yet to erect the goal posts.”). Yet as we indicated in Roby, mandatory

minimum sentences are permissible. While there is a presumption against

minimum terms of incarceration for juvenile offenders, we have expressly

upheld, even commanded, their use if the court concludes that sentence

is warranted after consideration of the factors. Roby, 897 N.W.2d at 143

(plurality opinion). Such a conclusion does not need to rise to the level of

irreparable corruption.

We reiterate that our role on review is for abuse of discretion. An

abuse of discretion may exist if the sentencing court fails to consider a

factor, gives significant weight to an improper factor, or arrives at a

conclusion that is against the facts. Id. at 138. But if the court follows

our outlined sentencing procedure by conducting an individualized

2The State stops short of asking us to overrule Roby or Lyle. As we recently noted
in Goodwin v. Iowa District Court, “We do not ordinarily overrule our precedent
sua sponte.” 936 N.W.2d 634, 645 n.4 (Iowa 2019) (quoting Estate of McFarlin v. State,
881 N.W.2d 51, 59 (Iowa 2016)); see also State v. Roberson, 935 N.W.2d 813, 828 (Wis.
2019) (overruling precedent at the state’s request to “return to our past practice of
following decisions of the United States Supreme Court”). Adversarial briefing should
guide a supreme court’s weighty decision to overturn its precedent.
 20

hearing, applies the Miller/Lyle/Roby factors, and imposes a sentence

authorized by statute and supported by the evidence, then we affirm the

sentence. Goodwin v. Iowa Dist. Ct., 936 N.W.2d 634, 637 (Iowa 2019);

see also Seats, 865 N.W.2d at 552–53 (explaining our review for abuse of

discretion and emphasizing the discretionary nature of judges). As we

stated in Formaro,

Judicial discretion imparts the power to act within legal
parameters according to the dictates of a judge’s own
conscience, uncontrolled by the judgment of others. It is
essential to judging because judicial decisions frequently are
not colored in black and white. Instead, they deal in differing
shades of gray, and discretion is needed to give the necessary
latitude to the decision-making process. This inherent
latitude in the process properly limits our review. Thus, our
task on appeal is not to second guess the decision made by
the district court, but to determine if it was unreasonable or
based on untenable grounds.

638 N.W.2d at 725 (citations omitted); see also Seats, 865 N.W.2d at 552–

53. We trust the sentencing courts to know, after applying the factors,

when a mandatory minimum term of incarceration for juvenile offenders

is warranted. Such trust is essential to the “respect afforded by the

appellate process.” Formaro, 638 N.W.2d at 725.

We recently affirmed a twenty-year mandatory minimum on a fifty-

year sentence for second-degree murder committed by a sixteen-year-old.

Goodwin, 936 N.W.2d at 637. The sentencing court conducted an

individualized sentencing hearing, relied on expert testimony in applying

the Miller/Lyle/Roby factors, and imposed a sentence within the statutory

limits. Id. at 645–47. Under circumstances in which two of the factors

were mitigating, we determined that imposing the twenty-year mandatory

minimum was neither illegal nor an abuse of discretion. Id. We reach the
 21

same conclusion as to Majors’ seventeen and one-half-year mandatory

minimum prison term. 3

Under the first factor, the sentencing court must consider “the age

of the offender and the features of youthful behavior, such as ‘immaturity,

impetuosity, and failure to appreciate risks and consequences.’ ” Lyle, 854

N.W.2d at 404 n.10 (quoting Miller, 567 U.S. at 477–78, 132 S. Ct. at

2468). 4 The district court appropriately noted that Majors was nearly age

eighteen when he committed the crime in 2002. Majors argues the court

erred in emphasizing his age and states the fact that he was nearly

eighteen at the time of the crime is “immaterial to the crucial question

whether [he] possessed features of maturity beyond his years.” We reject

his attempt to alter the first factor. The court must consider “the age of

the offender and the features of youthful behavior,” which explicitly

articulates that each is a separate consideration under this factor. Id.

(emphasis added). The district court properly considered the present

expert testimony of Dr. Clemmons and the 2002 Oakdale psychiatric

3The district court, as noted, relied in part on the testimony of the State’s expert
psychiatrist, Dr. Theresa Clemmons. Majors’ trial counsel did not argue that
Dr. Clemmons was unqualified to testify as an expert because she was not a child
psychologist or child psychiatrist. Nor does Majors’ appellate counsel argue that trial
counsel provided constitutionally deficient representation by failing to challenge the
admissibility of Dr. Clemmons’ expert testimony on grounds that she was unqualified.
“Generally, we have been committed to a liberal view on the admissibility of expert
testimony.” Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). Indeed, we
have stated that “an expert does not need to be a specialist in the area of the testimony
as long as the testimony is within the general area of expertise of the witness.” Id. at 687.
In Roby, we nowhere specified that the state was limited to using expert testimony of a
child psychologist or psychiatrist to support a mandatory minimum sentence. Such a
limitation on expert testimony would make little sense when, as here, the offender was
age thirty-three at the time of his second resentencing.
4“Studies that have examined logical reasoning abilities in structured situations
and basic information-processing skills, for instance, have found no appreciable
differences between adolescents age 16 and older and adults[.]” Laurence Steinberg et
al., Are Adolescents Less Mature Than Adults? Minors’ Access to Abortion, the Juvenile
Death Penalty, and the Alleged APA “Flip-Flop”, 64 Am. Psychologist 583, 586 (2009).
 22

assessment of Majors’ decisional capacity contemporaneously with the

criminal offenses. The record supports the district court’s determination

that Majors’ maturity was comparable to a young adult and is not a

mitigating factor.

Under the second factor, the sentencing court must consider “the

particular ‘family and home environment’ that surround the youth.” Lyle,

854 N.W.2d at 404 n.10 (quoting Miller, 567 U.S. at 477–78, 132 S. Ct. at

2468). “This factor seeks to identify any familial dependency and negative

influences of family circumstances that can be ingrained on children” and

considers the impact of all home environments, financial situations, and

social backgrounds. Roby, 897 N.W.2d at 146. Majors, relying on an

article that outlined resentencing considerations for a potential sentence

of life without parole, urges that Dr. Clemmons should have interviewed

family members, reviewed school reports, and utilized social maturity

scales. 5 Such additional investigation is not required here, especially

given that Majors was age thirty-three at the time of this second

resentencing. Dr. Clemmons testified about how Majors had been picked

on by other kids and noted a report of abuse by his father that ended when

he was in sixth grade and had since improved. She found no mitigation
given his childhood or the family environment at the time of the crime, in

2002, when Majors was living on a quiet street in a loving, two-parent

household with good relationships with family members. The district court

considered her expert testimony and noted the absence of “any home

environment facts that influenced [Majors’] behavior.” Unlike many

youthful offenders raised in troubled home environments, Majors had no

5Elizabeth Scott et al., Juvenile Sentencing Reform in a Constitutional Framework,
88 Temp. L. Rev. 675, 696–97 (2016) (proposing considerations for a potential life-
without-parole sentence).
 23

juvenile criminal record apart from a single offense for possession of

alcohol and thus had been able to conform his behavior to societal

expectations before he invaded the Peckham home. The record supports

the district court’s determination that the second factor is not mitigating

for Majors.

Under the third factor, the sentencing court must consider “the

circumstances of the particular crime and all circumstances relating to

youth that may have played a role in the commission of the crime.” Lyle,

854 N.W.2d at 404 n.10. Here, our caselaw directs the sentencing judge

to give attention to “the juvenile offender’s actual role and the role of

various types of external pressure.” Roby, 897 N.W.2d at 146. As such,

this factor is more relevant in situations of group participation in a crime.

Id. For homicide offenses, this also involves consideration of “the way

familial and peer pressures may have affected” the defendant. State v.

Zarate, 908 N.W.2d 831, 853 (Iowa 2018) (quoting Seats, 865 N.W.2d at

556). “Our sentencing courts can and should consider the heinous nature

of the crime in evaluating whether to impose a mandatory minimum

sentence.” Goodwin, 936 N.W.2d at 647.

Majors argues that the court did not give proper weight to his initial

assertions that he had been dared to commit the crime, had been acting

under direction of voices in his head due to drug use, and had blacked

out. However, Dr. Clemmons testified that Majors himself admitted to her

that he did not commit the crime on a dare, and his claim of being on a

drug binge was inconsistent with other evidence. The district court

appropriately relied on the absence of peer pressure, noting Majors acted

alone without anyone goading him. The court’s conclusion is supported

by the expert testimony of Dr. Clemmons, who “found no indications of

any outside influences . . . in the planning and execution of this crime.”
 24

Nor was the crime impulsive; to the contrary, Majors acted deliberately

with careful planning. He observed the Peckham family for years, even

watching Hollie, the object of his obsession, through bathroom windows.

He learned their nightly routine, snuck into their home, and hid in Hollie’s

bedroom closet before emerging to attack her. He wore a ski mask and

gloves to avoid detection. He brought duct tape presumably to bind her.

He carried a rifle with a makeshift silencer and a knife as a backup weapon

to subdue or kill his victims. As we observed in our prior decision, he

committed a “frightening crime.” Majors, 897 N.W.2d at 125. And the

district court properly relied on present expert testimony and the 2002

contemporaneous Oakdale psychiatric assessment that at the time of the

crime Majors understood the nature of his conduct and had the decisional

capacity to be held accountable. The record supports the district court’s

determination that the third factor is not mitigating for Majors.

Under the fourth factor, the sentencing court must consider “the

challenges for youthful offenders in navigating through the criminal

process.” Lyle, 854 N.W.2d at 404 n.10. “This factor recognizes that

juveniles are typically less capable than adults at navigating the legal

process.” Goodwin, 936 N.W.2d at 647. But Majors was an adult

throughout these criminal proceedings. Dr. Clemmons testified that the

2002 Oakdale assessment found him competent to assist in his own

defense, and both a licensed psychologist and psychiatrist in 2002 found

there was no concern that Majors had diminished capacity or competency.

The record supports the district court’s determination that Majors

“demonstrated an understanding of the legal system that belies any

disability due to his age.” The record supports the district court’s

determination that the fourth factor is not mitigating for Majors.
 25

Under the fifth factor, the sentencing court must consider “the

possibility of rehabilitation and the capacity for change.” Lyle, 854 N.W.2d

at 404 n.10. This factor typically favors mitigation because juveniles are

generally more capable of rehabilitation than adults. Roby, 897 N.W.2d at

147. Here, the district court appropriately gave weight to expert testimony

on Majors’ lack of empathy and remorse from his initial arrest to the

present. And the district court properly considered Majors’ prison

disciplinary violations, which as Dr. Clemmons explained were not

attributable to his youth because he continued to accrue violations as an

adult. Even at age thirty-three, and on the same day as his 2018

resentencing, Majors committed another disciplinary violation. The record

supports the district court’s determination that the fifth factor is, at best,

“weakly” mitigating for Majors.

The district court was unsure what weight to give Majors’ conduct

in prison. On resentencing, we encourage district courts to consider the

defendant’s conduct in prison—a sixteen-year span in this case. When

initially sentencing a juvenile offender shortly after the crime, the district

court must attempt to predict how the defendant will respond to the future

opportunities to mature and rehabilitate himself while incarcerated. By

contrast, we have observed that parole boards have

“the benefit of seeing the individual offender’s actual behavior,
rather than having to attempt to predict chances at maturity
and rehabilitation based on speculation.” As a result, the
parole board may decide to continue confinement of the
juvenile “[i]f rehabilitation has not yet occurred” until he or
she “has demonstrated through his or her own actions the
ability to appreciate the severity of the crime.” “This is
consistent with the approach of our prior holdings in the area
of juvenile sentencing, because it allows for a realistic and
meaningful opportunity for parole upon the juvenile’s
demonstration of maturity and rehabilitation.”
 26

State v. Harrison, 914 N.W.2d 178, 201 (Iowa 2018) (quoting State v.

Propps, 897 N.W.2d 91, 102 (Iowa 2017)). On resentencing, the court, like

the parole board, can look back and rely on the defendant’s actual

behavior (good or bad) while incarcerated. 6 See Crooks, 911 N.W.2d at

170 (considering the “juvenile offender’s progress towards rehabilitation”

while incarcerated before imposing a new sentence). This may benefit

some defendants. For example, in State v. Louisell, we affirmed a

resentence that granted immediate parole eligibility to a juvenile offender

who had served twenty-six years in prison, noting “Louisell is a model

inmate who has achieved rehabilitation; grown from a naïve and impulsive

youngster to a mature, accomplished, and intelligent woman; and

accepted full responsibility for the crime she committed as a juvenile in

1987.” 865 N.W.2d 590, 595 (Iowa 2015). Majors has not been a model

inmate.

On balance, we determine the district court did not abuse its

discretion in applying the foregoing factors to impose the seventeen and

one-half-year mandatory minimum sentence. Importantly, as we

reiterated in Goodwin, “[o]ur district courts can and should [also] weigh

public safety (incapacitation), deterrence, and retribution when sentencing

juvenile offenders for violent felonies.” Goodwin, 936 N.W.2d at 647; see

also Harrison, 914 N.W.2d at 201 (“Despite our emphasis on rehabilitation,

juvenile sentences may still aim to promote additional penological goals,

including deterrence, retribution, and incapacitation.”); Zarate, 908

6Courts in other jurisdictions have held that prison disciplinary violations can be
considered on resentencing. See, e.g., State v. Swimm, 340 S.E.2d 65, 70 (N.C. 1986)
(allowing a defendant’s bad conduct while incarcerated to be considered on resentencing);
Commonwealth v. Losch, 535 A.2d 115, 123 (Pa. Super. Ct. 1987) (holding that during
resentencing the judge “may also allow the prosecution to introduce evidence relating to
appellant’s bad conduct, if any, since the time that judgment of sentence was last
imposed”).
 27

N.W.2d at 854–55 (approving consideration of other goals of criminal

punishment when sentencing juvenile offenders, including incapacitation,

deterrence, and culpability).

B. No Ineffective Assistance of Counsel. Majors argues his trial

counsel had a duty to present an expert witness to testify regarding the

five sentencing factors. He asserts that his trial counsel’s failure to present

such an expert amounts to constitutionally deficient representation, that

is, ineffective assistance of counsel. The State contends that Majors

cannot establish that his trial counsel was ineffective for failing to retain

an expert witness because Majors himself, then age thirty-three, chose not

to do so. We begin with our framework for ineffective-assistance-of-

counsel claims.

To prevail on an ineffective-assistance-of-counsel claim, the

claimant must satisfy the two-prong test by proving that his trial counsel

failed to perform an essential duty and prejudice resulted. State v. Clay,

824 N.W.2d 488, 495 (Iowa 2012) (describing the two-prong test for

ineffective-assistance-of-counsel claims set out in Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). “A

defendant’s inability to prove either element is fatal.” State v. Graves, 668

N.W.2d 860, 869 (Iowa 2003).

Under the first prong, our presumption is that counsel performed

competently unless the claimant proves otherwise by a preponderance of

the evidence. Clay, 824 N.W.2d at 495. Counsel’s performance is

measured objectively against the prevailing professional norms after

considering all the circumstances. Id. A claimant can rebut the

presumption by showing that counsel failed to perform an essential duty.

State v. Ross, 845 N.W.2d 692, 698 (Iowa 2014). More is required than a
 28

showing that counsel’s trial strategy backfired or the case would have been

tried differently by another attorney. Id.

To establish the second prong, prejudice, “the claimant must prove

by a reasonable probability that, but for counsel’s failure to perform an

essential duty, the result of the proceeding would have been different.”

State v. Ary, 877 N.W.2d 686, 705 (Iowa 2016). This proof does not require

a showing that counsel’s conduct “more likely than not altered the

outcome in the case,” but rather that “the probability of a different result

is ‘sufficient to undermine [our] confidence in the outcome’ of the trial.”

Id. (alteration in original) (quoting Graves, 668 N.W.2d at 882).

The record must be adequate to resolve an ineffective-assistance-of-

counsel claim on direct appeal. Id. at 704. We find that this record is

adequate, and we hold that Majors’ counsel did not breach an essential

duty by failing to present a defense expert to testify regarding the

sentencing factors. Our emphasis in Roby on the importance of presenting

expert testimony on the Miller/Lyle/Roby factors was directed at the

State—if the State wants to recommend that the sentencing court impose

a mandatory minimum sentence, Roby held that an expert is “normally”

necessary to analyze the factors. Roby, 897 N.W.2d at 148. Although the

option of presenting an expert is available to both parties, the defendant

does not need expert testimony in order to avoid a mandatory minimum

sentence.

Majors himself made the decision not to present an expert during

the resentencing hearing. Majors cannot now blame his counsel for

honoring his own decision. See Schertz v. State, 380 N.W.2d 404, 413

(Iowa 1985) (“[A]ppellant cannot now assert a claim of ineffectiveness of

counsel based primarily on appellant’s own decisions . . . .”); State v.

Lemburg, 257 N.W.2d 39, 46 (Iowa 1977) (rejecting a claim of ineffective
 29

assistance of counsel for the attorney’s alleged failure to litigate certain

defenses because “[i]t was [the appellant’s] own decision to reject the

possibilities of these defenses”).

Calling a defense expert would run the risk that the prosecutor’s

cross-examination would elicit adverse information. Majors’ counsel made

a strategic decision to rely on his own cross-examination of the State’s

expert. “We believe that the question of whether or not to call an expert

witness is a matter of trial strategy.” Heaton v. State, 420 N.W.2d 429,

432 (Iowa 1988); see also State v. Polly, 657 N.W.2d 462, 468 (Iowa 2003)

(“Generally, the decision not to call a particular witness or the defendant

to testify implicates a reasonable tactical decision.”). Indeed, Majors’

counsel referred to that strategy to support his client’s decision to decline

to keep the record open for a psychiatric examination and a defense expert.

MR. BOOTH: . . . I’d like to indicate to the court again
that I’ve again advised Mr. Majors that we could at this point
ask for the record to remain open in order to get a psychiatric
examination done. Again on my recommendation it’s my
understanding that he is declining to have that done at this
time, Your Honor.
THE COURT: Mr. Booth, without detailing the legal
reason, can you place [on] record some reasons for your
recommendation?
MR. BOOTH: Well, with respect as indicated in my
cross-examination, Your Honor, I believe that I was able to
glean the information that I might otherwise be able to obtain
through the State’s witness, Your Honor, and in my personal
opinion and my professional opinion, I believe that that
should be sufficient, Your Honor. I’m not sure that an
independent evaluation would provide the same or similar
opportunity to present information.
THE COURT: It seems like a reasonable choice of trial
strategy, Mr. Booth.

We agree that this was a reasonable trial strategy rather than a

breach of duty. See State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006);

Polly, 657 N.W.2d at 468 (holding that the defendant’s ineffective-
 30

assistance-of-counsel claim failed because “[t]rial counsel’s decision not to

call [the defendant] to testify clearly was a strategical decision we will not

second-guess”); State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992);

Heaton, 420 N.W.2d at 432 (holding defense counsel was not ineffective

for not calling an expert at trial); Kellogg v. State, 288 N.W.2d 561, 564

(Iowa 1980) (“[Defendant] shows no injury from [defense counsel’s]

decision not to consult the expert witnesses or use them at trial. He has

failed to carry his burden of proving [defense counsel] was incompetent or

in any way ineffective on this contention.”).

We reiterate that these sentencing hearings need not be a battle of

the experts. A “basic proposition” regarding this process is that “juvenile

sentencing hearings are not entirely adversarial. The goal is to craft a

‘punishment that serves the best interests of the child and of society.’ ”

Roby, 897 N.W.2d at 144 (quoting Lyle, 854 N.W.2d at 402). Requiring

the defense to present an expert in every juvenile sentencing case would

not serve that goal.

We hold Majors’ defense counsel had no duty to present an expert

to testify regarding the Miller/Lyle/Roby factors. Given that Majors failed

to prove the first element required to prevail on an ineffective-assistance-

of-counsel claim, a breach of duty, we end our analysis there. See Graves,

668 N.W.2d at 869 (“A defendant’s inability to prove either element is

fatal.”).

IV. Disposition.

For the foregoing reasons, we affirm the district court’s resentencing

order and judgment of sentence.

AFFIRMED.

Christensen, C.J., and Mansfield and McDonald, JJ., join this

opinion. McDonald, J., files a concurring opinion in which Christensen,
 31

C.J., joins. Appel, J., files a dissenting opinion in which Wiggins, J., joins.

Oxley, J., takes no part.
 32

#18–0563, State v. Majors

McDONALD, Justice (concurring specially).

For the reasons set forth in my special concurrence in Goodwin v.

Iowa District Court, 936 N.W.2d 634, 649 (Iowa 2019) (McDonald, J.,

concurring specially), I conclude the district court did not abuse its

discretion in imposing a minimum sentence on the defendant. I concur in

the majority opinion and the judgment of the court.

Christensen, C.J., joins this special concurrence.
 33

#18–0563, State v. Majors

APPEL, Justice (dissenting).

I respectfully dissent.

The sentencing hearing in this case does not remotely resemble that

contemplated by State v. Roby, 897 N.W.2d 127 (Iowa 2017), State v. Seats,

865 N.W.2d 545 (Iowa 2015), State v. Lyle, 854 N.W.2d 378 (Iowa 2014),

and State v. Null, 836 N.W.2d 41 (Iowa 2013). The overarching problem is

that the district court failed to recognize the principles of developmental

child psychology that underlie our juvenile sentencing cases and entered

a sentencing order that failed to apply the proper framework to this case.

Further, counsel for Jarrod Majors made no effort to present the law or to

show, through competent expert testimony, how the law related to the

facts at hand. As a result, the sentence in this case should be vacated and

the matter remanded for resentencing.

I. By Failing to Recognize the Developmental Child Psychology
Underpinning Our Caselaw and the Proper Framework for Considering
Juvenile Culpability, the District Court Committed Reversible Error.

A. The Need for Qualified Expert Testimony on Developmental

Child Psychology in Cases Where Juvenile Offenders Face the

Possibility of the Imposition of Mandatory Adult Minimum Sentences.

The basic framework of the United States Supreme Court on juvenile

justice fundamentally turns on concepts of developmental child

psychology as articulated in the recent seminal trilogy of cases: Miller v.

Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), Graham v. Florida, 560

U.S. 48, 130 S. Ct. 2011 (2010), and Roper v. Simmons, 543 U.S. 551, 125

S. Ct. 1183 (2005). 7

7“Developmental psychology, broadly defined, concerns the scientific study of
changes in physical, intellectual, emotional, and social development over the life cycle.”
Laurence Steinberg & Elizabeth Cauffman, The Elephant in the Courtroom: A
 34

We applied child developmental psychology under the article I,

section 17 cruel and unusual punishment provision of the Iowa

Constitution in Roby, Seats, Lyle, and Null. Under our caselaw, the state

must show in an individualized hearing that a juvenile criminal defendant

facing a mandatory adult sentence falls outside the norm of most juveniles,

where age is presumptively considered a mitigating factor on the critical

issue of culpability.

In Roby, we explored the contours of an individualized hearing

required before the state may apply a mandatory adult minimum sentence

against a juvenile offender. We noted that the mitigating developmental

factor of “age of the offender and the features of youthful behavior” is most

meaningfully applied when based on qualified professional assessments of

the offender’s decision-making capacity utilizing the expert’s

“developmental and clinical knowledge.” Roby, 897 N.W.2d at 145 (first

quoting Lyle, 854 N.W.2d at 404 n.10; then quoting Elizabeth S. Scott et

al., Juvenile Sentencing Reform in a Constitutional Framework, 88 Temp. L.

Rev. 675, 697 (2016) [hereinafter Scott et al., Juvenile Sentencing Reform]).

As authority for its reliance on qualified professional assessments, the

Roby court cited the work of four leading authorities in the area: Thomas

Grisso, Marsha Levick, Elizabeth Scott, and Laurence Steinberg. 8 These

Developmental Perspective on the Adjudication of Youthful Offenders, 6 Va. J. Soc. Pol’y &
L. 389, 391 (1999) [hereinafter Steinberg & Cauffman, Adjudication of Youthful Offenders].
8These experts continue to provide valuable research on the issue of juvenile
development and the criminal justice system. See generally Thomas Grisso et al.,
Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities
as Trial Defendants, 27 Law & Hum. Behav. 333 (2003) (evaluating data indicating
impairment of judgment and competence in juveniles, affecting legal competence to stand
trial); Thomas Grisso & Antoinette Kavanaugh, Prospects for Developmental Evidence in
Juvenile Sentencing Based on Miller v. Alabama, 22 Psychol., Pub. Pol’y, & L. 235, 240
(2016) (exploring evidentiary considerations regarding the Miller developmental factors in
new sentencing cases); Marsha Levick & Neha Desai, Still Waiting: The Elusive Quest to
Ensure Juveniles a Constitutional Right to Counsel at All Stages of the Juvenile Court
 35

four leading authorities on child development and the law state that

“[b]ecause the Miller factors are based upon developmental constructs,

expert assessments by forensic child clinical psychologist or psychiatrists

are required to inform courts making sentencing decisions.” Scott et al.,

Juvenile Sentencing Reform, 88 Temp. L. Rev. at 695 (emphasis added). 9

Scott and her colleagues further emphasize the importance of child

development expertise. According to these leading authorities, “[g]eneral

forensic mental health professionals who evaluate adults for criminal

courts are usually not qualified to undertake these assessments.” Id.

Yet, that is exactly what occurred in this case. The State’s expert

was a staff psychiatrist with the department of corrections. She was

named as an expert by the State at the last minute in this matter, on

Process, 60 Rutgers L. Rev. 175 (2007) (arguing that juveniles need counsel at all points
in legal proceedings as they generally do not understand their rights or the proceedings
well enough to make informed decisions); Elizabeth S. Scott & Laurence Steinberg,
Blaming Youth, 81 Tex. L. Rev. 799 (2003) (addressing how legal practitioners should
think about immaturity as it relates to competence and moral blameworthiness);
Elizabeth S. Scott & Thomas Grisso, Developmental Incompetence, Due Process, and
Juvenile Justice Policy, 83 N.C. L. Rev. 793 (2005) (applying legal trial competence
requirements to juveniles and examining the relationship between immaturity and
incompetence); Elizabeth S. Scott, Judgment and Reasoning in Adolescent
Decisionmaking, 37 Vill. L. Rev. 1607 (1992) (exploring existing literature on adolescent
decision-making within their capacities as legal actors); Scott et al., Juvenile Sentencing
Reform, 88 Temple L. Rev. 675 (analyzing the Miller framework and how it has been
applied by lower courts and states); Elizabeth S. Scott & Laurence Steinberg, Social
Welfare and Fairness in Juvenile Crime Regulation, 71 La. L. Rev. 35 (2010) (analyzing the
juvenile constitutional framework, underlying developmental science, and the principle
that “children are different”); Steinberg & Cauffman, Adjudication of Youthful Offenders,
6 Va. J. Soc. Pol’y & L. 389 (outlining aspects of adolescent development relevant to legal
proceedings); Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in
Adolescence: Psychosocial Factors in Adolescent Decision Making, 20 Law & Hum. Behav.
249 (1996) (canvassing extant scientific literature to create a framework for psychosocial
evaluation of capacity for judgment in juveniles).
9The American Academy of Child and Adolescent Psychiatry recommends that
professionals conducting assessments should have adequate experience, education, and
training, including knowledge of normal growth and development and child
psychopathology. Louis J. Kraus et al., Am. Acad. Child & Adolescent Psychiatry, Practice
Parameter for Child and Adolescent Forensic Evaluations, 50 J. Am. Acad. Child &
Adolescence Psychiatry 1299, 1304 (2011).
 36

January 30, 2018, conducting Majors’ psychiatric evaluation two weeks

later on February 13. The resentencing hearing was initially scheduled for

February 20 and only later was continued to March 5. She worked

primarily with adults and only came in contact with juveniles in the

corrections system. There is nothing in the record to establish her

qualifications with regard to child developmental psychology. Indeed, as

will be shown below, the State’s expert demonstrated little familiarity with

child developmental psychology.

In effect, while the State’s expert was testifying at the March 5

hearing, it was in fact the prosecutor testifying through repeated use of

leading questions that suggested the answer. By way of example,

Q. Through your evaluation, as well as a review of the
record, you found no psychiatric or mental health illness that
would have impacted his ability to understand what he was
doing at the time of the crime; correct? A. That’s correct.

....

Q. Is it also a concern in terms of rehabilitation if the
defendant doesn’t take full responsibility for his actions or
minimizes his conduct? A. This is kind of where the concern
for the treatment kind of comes up in terms of
rehabilitation. . . . That’s kind of where the rehabilitation is
founded upon.

....

Q. Taking that one step further, if one takes a little
responsibility but kind of minimizes what he did, it’s going to
minimize them because they’re going to get out or
rehabilitation programs; correct? A. Correct.

....

Q. Combined with a lack of empathy for the victims,
that doesn’t give us a very good forecast for his rehabilitation;
would that be fair? A. That would be fair.

....
 37
Q. So in some respects the judicial declaration at 18 is
a demarcation point and somewhat of an partial line being
drawn; would that be fair? A. That would be fair.

Q. If you’re going to draw the line there, then if that’s
the best way the line gets drawn, then what you’re saying is
the development that this defendant would have had in the 15
days from commission of crime until he reached age of
majority would have been minimal, if any; correct? A. That’s
correct.

Q. So in terms of mitigating his responsibility for the
crime, at best it would have minimal mitigating value; would
that be fair? A. Yes.

While Majors’ counsel inexplicably did not object to the expert’s

qualifications or to her testimony, the testimony of the State’s expert is

entitled to little or no weight by the court. The repeatedly leading nature

of the questioning undermines any credibility in the testimony. See

Denniston Partridge Co. v. Romp, 244 Iowa 204, 210, 56 N.W.2d 601, 604

(1953) (“While the absence of proper objection left the answers in the

record for what they were worth, we think the weight of such testimony is

very slight.”). Further, the lack of qualifications in child developmental

psychology undermines her testimony. State ex rel. Leas in re O’Neal, 303

N.W.2d 414, 421 (Iowa 1981) (“[I]t is not sufficient that the expert be

generally qualified in the area of inquiry; ‘sufficient data must appear upon

which an expert judgment can be made (on the specific question

propounded,) and if absent, the opinion is incompetent.’ ” (quoting

Holmquist v. Volkswagen of Am., Inc., 261 N.W.2d 516, 524 (Iowa Ct. App.

1977))).

We have emphasized that “[p]erceptions applicable to adult behavior

cannot normally be used to draw conclusions from juvenile behavior.”

Roby, 897 N.W.2d at 147; see also Jenny E. Carroll, Brain Science and the

Theory of Juvenile Mens Rea, 94 N.C. L. Rev. 539, 598 (2016) (“I am not

asserting either that adolescent offenders are categorically incapable of
 38

achieving any particular mens rea or should be rendered blameless by

their immaturity. Quite the contrary—I am arguing that, like all offenders,

adolescents should be held accountable for the mens rea they actually

achieved.”); Marsha Levick et al., The Eighth Amendment Evolves: Defining

Cruel and Unusual Punishment Through the Lens of Childhood and

Adolescence, 15 U. Pa. J.L. & Soc. Change 285, 293 (2012) (“Emerging

research in [the field of developmental psychology] indicates that

developmental immaturity consists of four components distinguishing

adolescents from adults: independent functioning, decision-making,

emotion regulation, and general cognitive processing.”). But by using a

psychiatrist with no demonstrable child development training and whose

clinical experience was largely with adults, the State’s presentation was

more akin to a sentencing process that might be appropriate for an adult

but assuredly was inappropriate for a juvenile. This is evidenced by a

number of specific errors and omissions in the expert testimony, which

was erroneously relied upon in the district court’s ruling.

B. “First and Foremost”: Direction Regarding Consideration of

the Mitigating Factors of Youth. Lyle states in clear language, “First

and foremost, the time when a seventeen-year-old could seriously be

considered to have adult-like culpability has passed.” 854 N.W.2d at 398

(emphasis added). The first-and-foremost principle is entirely absent from

the testimony of the expert and from the district court’s opinion. First and

foremost, lessened culpability for all juveniles under eighteen is the norm,

not the exception. First and foremost, because “children are

constitutionally different than adults,” they ordinarily cannot be held to

the same standard of culpability as adults in criminal sentencing. Miller,

567 U.S. at 470–72, 132 S. Ct. at 2464–65. First and foremost, the default

rule is that children are not subject to mandatory minimums of
 39

incarceration. Roby, 897 N.W.2d at 144 (citing Null, 836 N.W.2d at 74).

First and foremost, “[m]itigation normally is warranted in all crimes.” Id.

at 146.

As noted by Scott and her colleagues, “[g]iven the background

principle embraced by the [United States] Supreme Court that most youths

are immature, the prosecutor carries a substantial burden.” Scott et al.,

Juvenile Sentencing Reform, 88 Temp. L. Rev. at 696. According to Scott

and Steinberg, “a strong presumption that mitigation applies categorically

to the juvenile offenders avoids innocent errors and more pernicious

influences that may distort individualized determinations.” Elizabeth S.

Scott & Laurence Steinberg, Rethinking Juvenile Justice 141 (2008)

[hereinafter Scott & Steinberg, Rethinking Juvenile Justice].

Roby embraces these principles. Under Roby, expert testimony may

be used to show that the normative mitigation principle does not apply by

showing that the particular juvenile offender “possessed features of

maturity beyond his or her years.” 897 N.W.2d at 146. The State has the

burden of showing the unusual or exceptional maturity, the prerequisite

showing for departure from child developmental norms. The State must

show that the juvenile’s maturity is so exceptional and so outside the norm

that an adult mandatory sentence is appropriate.

The State’s expert testified that she “found nothing about Majors’

age at the time of the offense that mitigated against a mandatory

sentence.” But that is not the child development framework presented in

Roby. Under the Roby framework, juveniles under eighteen are less

culpable than adults unless expert testimony shows maturity beyond his

or her years. Id. at 146. The record should not be viewed through the lens

ordinarily applied to adult behavior, but through the lens of child

developmental psychology principles. Id. at 147.
 40

No such expert testimony was offered in this case. Instead, the

State’s expert, through highly leading questions, flipped the Roby

framework on its head, put the burden of mitigation based on age on

Majors, and then declared that she had found nothing to establish

mitigation. She ignored, or more likely given her lack of qualifications was

unaware of, the normative developmental principle that teenagers,

including those that are seventeen years of age, are categorically less

culpable than adults absent expert testimony that the offender “possessed

features of maturity beyond his or her years.” Id. She occasionally cited

facts in the record germane to child development, but these facts were not

analyzed through the lens of child developmental psychology as required

by our caselaw.

Although not explicit, the district court ruling in this case appears

to have flipped the burden as well. It certainly does not start from the

general presumption of mitigation for seventeen-year-olds. Indeed, in key

passages, it reads very much like an ordinary adult sentencing order. If

the district court had operated from the assumption that “[f]irst and

foremost, the time when a seventeen-year-old could seriously be

considered to have adult-like culpability has passed” and the “children are

different” framework, the numerous and repeated shortcomings in the

State’s expert testimony would have been viewed as problematic. Lyle,

854 N.W.2d at 398; see Miller, 567 U.S. at 470–72, 132 S. Ct. at 2464–65.

A clear example of the district court’s endorsement of legal error arising

from expert testimony is presented in the erroneous treatment of a

seventeen-year-old as nearly an adult contrary to established caselaw.

Even if it is unclear that the district court applied the wrong legal

standard, reversal and remand is appropriate to clarify the basis of the

court’s ruling. See State v. Showens, 845 N.W.2d 436, 449–50 (Iowa 2014)
 41

(finding reversal and remand proper where unsure whether the district

court applied correct legal standard).

C. Erroneous Treatment of Seventeen-Year-Old as Nearly an

Adult Contrary to Established Caselaw.

1. Introduction. The State’s expert and the district court

erroneously analyzed the impact of Majors’ age. They emphasized that

Majors’ offense occurred fifteen days before he turned eighteen and then

suggested that the proper analytical approach was to determine whether

fifteen days of additional life would have had any impact on Majors’

decision-making.

2. Contrary to principles of child developmental psychology. This

bizarre analytical framework is completely inconsistent with the principles

of child developmental psychology that underlie Miller, Graham, and Roper

and Roby, Seats, Lyle, and Null. The line for the presumption of lessened

culpability has been placed at eighteen years of age, many years inside the

scientific boundaries of the developing child. As noted by the Supreme

Court, the age of eighteen comes from history and social meaning of age,

but not from developmental psychology. Roper, 543 U.S. at 569, 125 S. Ct.

at 1195. This presumption exists in part because the law assumes that a

person eighteen years of age has the freedom to extricate themselves from

unfavorable social environments and in part because society generally

accepts eighteen as a threshold separating children from adults for a wide

variety of activities. Id. But with respect to persons under the age of

eighteen, “the presumption of immaturity can be applied confidently to

most persons in the group.” Scott & Steinberg, Rethinking Juvenile Justice

at 140.

It is simply wrong and completely inconsistent with developmental

psychology, however, to conclude that a seventeen-year-old is almost
 42

eighteen and therefore not entitled to the presumption of immaturity. It is

well established that a lot of relevant social and emotional development

related to culpability occurs in juveniles after the age of eighteen and

through the mid-twenties. 10 According to two leading scholars in

adolescent development and the law, Scott and Steinberg, “[t]he research

clarifies that substantial psychological maturation takes place in the

middle of late adolescence and even into early adulthood.” Id. at 60. Thus,

Scott and Steinberg emphasize that “adolescents, even at age sixteen and

seventeen, are immature in their psychosocial and emotional development,

and this likely affects their decisions about involvement in crime in ways

that distinguish them from adults.” Id. at 131. Recently, Steinberg and

his colleagues stated,

Over the past decade, developmental psychologists and
neuroscientists have found that biological and psychological
development continues into the early twenties, well beyond

10The leading exploration of developmental psychology for “emerging adults” is

Jeffrey Jensen Arnett, Emerging Adulthood: A Theory of Development from the Late Teens
Through the Twenties, 55 Am. Psychologist 496 (2000). The article broadly examines the
subjective and objective differences of individuals between eighteen and twenty-five, as
compared to adolescents and youth adults. See also Elizabeth Cauffman & Laurence
Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less
Culpable than Adults, 18 Behav. Sci. & L. 741, 758 (2000) (“The present study indicates
that . . . psychosocial characteristics continue to develop during late adolescence, and
that these changes result in significant declines in antisocial decision-making . . . [which]
are appreciable enough to warrant drawing a legal distinction.”). The last twenty years of
research have supported Arnett’s view that the brains of teens continue to evolve until
the mid-twenties. See, e.g., Alexandra O. Cohen et al., When Is an Adolescent an Adult?:
Assessing Cognitive Control in Emotional and Nonemotional Contexts, 27 Psychol. Sci. 549,
559–60 (2016) (suggesting young adults have lower cognitive capacity in emotional
situations when compared to adults); Josh Gupta-Kagan, The Intersection Between Young
Adult Sentencing and Mass Incarceration, 2018 Wis. L. Rev. 669 (2018) (canvassing both
the scientific literature about young adult development and examining it in light of
sentencing and mass incarceration); Elizabeth S. Scott et al., Young Adulthood as a
Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L.
Rev. 641 (2016) (examining the neuroscientific, psychological, and sociological research
on young adulthood as applied in a criminal justice context); Kelsey B. Shust, Comment,
Extending Sentencing Mitigation for Deserving Young Adults, 104 J. Crim. L. & Criminology
667, 684–89 (2014) (exploring broadly the legal relationship between youthfulness and
culpability).
 43
the age of majority. Recently, researchers have found that
eighteen- to twenty-one-year-old adults are more like younger
adolescents than older adults in their impulsivity under
conditions of emotional arousal.

Elizabeth S. Scott et al., Young Adult as a Transitional Legal Category:

Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 642

(2016) [hereinafter Scott et al., Transitional Legal Category].

3. Contrary to caselaw. The caselaw does not support the just-

short-of-eighteen analysis of the State’s expert that was erroneously

adopted by the district court. In Roper, the Supreme Court made no

mention of the just-short-of-eighteen argument even though Roper was

just a few months shy of his eighteenth birthday when he committed a

brutal murder. See Roper, 543 U.S. at 619, 125 S. Ct. at 1223. Nothing

in United States Supreme Court caselaw suggests that a just-short-of-

eighteen analysis is appropriate in considering the culpability of youth in

the application of cruel and unusual punishment concepts.

Our Iowa caselaw is clear on this point. In Null, for instance, we

cited Steinberg and others for the proposition that “identity development,

which is often accompanied by experimentation with risky, illegal, or

dangerous activities, occurs in late adolescence and early adulthood.” 836

N.W.2d at 55 (citing Scott & Steinberg, Rethinking Juvenile Justice at 50–

52). We further noted that “[t]he research clarifies that substantial

psychological maturation takes place in middle and late adolescence and

even into early adulthood.” Id. (quoting Scott & Steinberg, Rethinking

Juvenile Justice at 60).

Then in Lyle, the district court sentenced a seventeen-year-old to an

adult mandatory minimum for the crime of second-degree robbery. 854

N.W.2d at 380. We vacated the sentence and remanded the case for an

individualized hearing on whether the adult mandatory sentence could be
 44

imposed on Lyle. Id. at 404. In Lyle, we cited Graham for the proposition

that persons under eighteen had “categorically diminished culpability.” Id.

at 398 (citing Graham, 560 U.S. at 71–75, 130 S. Ct. at 2028–30).

We again returned to the subject in Seats, where we considered a

sentencing proceeding involving a seventeen-year-old offender convicted of

first-degree murder and first-degree burglary. 865 N.W.2d at 549. In

sentencing Seats to life in prison without parole, the district court

emphasized that Seats was a seventeen-year-old, thereby raising the

“almost eighteen” argument. Id. at 556–57.

In response, we stated that we recognized that “in Roper, the line

between being a juvenile and an adult was drawn for cruel and unusual

punishment purposes at eighteen years of age.” Id. at 556–57 (citing

Roper, 543 U.S. at 574, 125 S. Ct. at 1197–98). Yet, we cited Null for the

proposition that current science demonstrated that the brain continued to

develop into the early twenties. Id. at 557 (citing Null, 836 N.W.2d at 55).

We repeated the findings of Scott and Steinberg that “adolescents, even at

the age sixteen and seventeen, are immature in their psychosocial and

emotional development, and this likely affects their decisions about

involvement in crime that distinguishes them from adults.” Id. at 557

(quoting Scott & Steinberg, Rethinking Juvenile Justice at 131). Then we

declared, “In light of the science, the fact that a defendant is nearing the age

of eighteen does not undermine the teachings of Miller and Null.” Id.

(emphasis added).

Finally, in Roby, the defendant was sixteen and seventeen years old

when he committed the crimes of sexual abuse in the second and third

degrees. We again cited the work of developmental psychologists for the

proposition that “developmental changes . . . continue into the mid-

twenties.” Roby, 897 N.W.2d at 145 (quoting Scott et al., Transitional Legal
 45

Category, 85 Fordham L. Rev. at 647). We declared that “age is not a

sliding scale that necessarily weighs against mitigation the closer the

offender is to turning eighteen years old at the time of the crime.” Id. But

that, of course, is exactly what the State’s expert did, and the approach

the district court uncritically adopted.

In a footnote, the majority cites Steinberg for the proposition that

cognitive development of sixteen-year-olds is often fully developed. See

Laurence Steinberg et al., Are Adolescents Less Mature than Adults?

Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA

“Flip-Flop,” 64 Am. Psychologist 583, 586–87 (2009) (“Studies that have

examined logical reasoning abilities in structured situations and basic

information processing skills, for instance, find no appreciable differences

between adolescents age 16 and older and adults[.]”). But the majority is

apparently unaware that Steinberg, consistent with the consensus social

science, emphasizes that psychosocial and emotional development

continues into the mid-twenties and that this delay in development

impacts criminal culpability. See Scott & Steinberg, Rethinking Juvenile

Justice at 60; see also Scott et al., Transitional Legal Category, 85 Fordham

L. Rev. at 647 (“[B]ecause development of brain systems that regulate

impulse control is more protracted, continuing into the early twenties, a

period of vulnerability to risky behavior results . . . [and may be likened to

an] ‘accelerator’ [being] pressed to the floor, [while] a good ‘braking system’

is not yet in place.” (Footnote omitted.)). Further, the majority fails to

recognize that our caselaw, and that of the United State Supreme Court,

embraces the work of Steinberg and his colleagues for precisely the

opposite proposition advanced by the majority and supported by the

footnote. See Roper, 543 U.S. at 570, 125 S. Ct. at 1196; Seats, 865

N.W.2d at 557. Finally, the majority fails to tell the reader that Roby,
 46

Seats, Lyle, and Null stand for the proposition that even those approaching

eighteen years of age as a general rule have diminished culpability.

In the end, the district court was misled by an unqualified expert.

“Forensic professionals conducting assessments for a sentencing hearing

must be sure to keep up with relevant post-Miller legislation and case law

in the jurisdiction where the hearing is taking place.” Kimberly Larson et

al., Miller v. Alabama: Implications for the Forensic Mental Health

Assessment at the Intersection for Social Science and the Law, 39 New Eng.

J. on Crim. & Civ. Confinement 319, 330 n.60 (2013) [hereinafter Larson

et al., Mental Health Assessments]. As a nonlawyer medical professional

with very limited professional interaction with juveniles who was

designated at the last minute to testify as an expert for the first time in a

sentencing hearing involving a juvenile offender, the State’s expert,

perhaps, can be forgiven for her lack of knowledge about child and young

adult developmental psychology and the applicable caselaw. She simply

was clueless when the prosecutor asked her leading questions that led the

expert to testify in a manner contrary to applicable Iowa Supreme Court

precedent and in total disregard of the findings of child developmental

psychology.

The district court expressly embraced the “almost eighteen”

reasoning of the State’s expert in considering age, which it characterized

as “the most important factor” under our decisions. Through the use of

the “almost eighteen” framework, the district court, like the State’s expert,

eviscerated the importance of age by essentially treating Majors as an

adult. When a district court unlawfully considers a factor in making a

decision, an abuse of discretion is present. State v. Zarate, 908 N.W.2d

831, 856 (Iowa 2018) (“ ‘[I]f a sentencing court fails to consider a relevant

factor that should have received significant weight, gives significant weight
 47

to an improper or irrelevant factor, or considers only appropriate factors

but nevertheless commits a clear error of judgment’ a discretionary

sentencing ruling may be an abuse of discretion.” (quoting Roby, 897

N.W.2d at 138)); State v. Knight, 701 N.W.2d 83, 85 (Iowa 2005) (“[T]he use

of an impermissible sentencing factor is an abuse of discretion and

requires resentencing.”).

D. Failure to Conduct Meaningful Evaluation. In order to

overcome the presumption of diminished culpability for youth, the State

must ordinarily present a meaningful professional evaluation of the

defendant. Consistent with principles of child developmental psychology,

we have taken a broad approach to environmental factors, including such

things as parental neglect, drug or alcohol use, prior exposure to violence,

and age-related susceptibility to psychological or emotional damage.

Seats, 865 N.W.2d at 556. In conducting a forensic evaluation of a juvenile

offender, Scott and her colleagues declare that the child development

expert evaluating the culpability of juvenile defendants must engage in

“skilled interviewing of the youth, and of family members, teachers, and

peers who have observed the youth’s functioning.” Scott et al., Juvenile

Sentencing Reform, 88 Temp. L. Rev. at 697. This should be done in light

of “a comprehensive review of records of the youth’s past behavior in

various social situations (e.g. school, rehabilitation settings).” Id.

Instead, the State’s expert selectively gathered documents available

at the department of corrections and in the court file. She assiduously

gathered documents regarding each and every discipline violation. But

contrary to the child developmental psychology authorities, she did not

thoroughly interview the parents. Contrary to the child development

authorities, she did not thoroughly interview teachers. Contrary to the

child development authorities, she did not thoroughly interview Majors’
 48

peers. She appears to have thoroughly gathered information that might

reflect adversely on Majors but did not engage in the kind of thorough

exploration that is required for meaningful evaluation according to Scott

and her colleagues.

I suppose one might argue that the thorough investigation

demanded by Scott and her colleagues would be inefficient and yield very

little. The State has limited resources, so the argument goes, and cannot

be expected to reach out beyond the department of corrections and the

court system in the gathering of materials for the evaluation of a juvenile

offender facing an adult mandatory minimum sentence. But that just is

not the way things are done, right? Can’t we simply follow our gut

instincts, with a limited factual review?

No! Put simply, the law requires more. The State has the burden of

showing that a juvenile offender is an exceptional person that falls outside

ordinary norms that mitigate culpability. This burden is very difficult to

meet without a thorough investigation of the family and social background

of a juvenile offender, as demanded by Scott and her colleagues.

Since circumstances vary from individual to individual, it is difficult

to draw a line in the sand to say that a particular review is sufficient or

not. At some point the investigation supporting an evaluation must come

to an end, and at some juncture there are diminishing returns. There is,

for instance, no requirement that an expert interview all family members,

every teacher, and every peer. But what is required is that a reasonable

review be conducted. That did not occur in this case.

The record shows that Majors was abused by his father up until

sixth grade. Certainly this is a fact that any child developmental

psychologist would want to explore and develop. See, e.g., Samantha

Buckingham, Reducing Incarceration for Youthful Offenders with a
 49

Developmental Approach to Sentencing, 46 Loy. L.A. L. Rev. 801, 850 (2013)

(noting the limitations of developmental science and generalizations

because of varying experiences in individuals due to their sociological

backgrounds, including exposure to abuse, trauma, or neglect); David

Dante Troutt, Trapped in Tragedies: Childhood Trauma, Spatial Inequality,

and Law, 101 Marq. L. Rev. 601, 626 (2018) (“As children’s brains react to

traumatic stressors, processes are trigged that affect different systems in

the body . . . rang[ing] from behavioral self-regulation problems and mental

illness . . . [to] risk of alcohol or substance abuse . . . .” (Footnotes

omitted.)). See generally Jennifer E. Lansford et al., Early Physical Abuse

and Later Violent Delinquency: A Prospective Longitudinal Study, 12 Child

Maltreatment 233 (2007) (citing the link between early physical abuse and

later aggression and delinquency and other social and psychological

problems, including depression and anxiety). The State’s expert in Majors’

case made no such effort.

The record also shows that Majors transferred out of the Bedford

Public Schools and enrolled in an alternative school at age fifteen.

Something substantial is going on here. Any child developmental mental

health professional would thoroughly review the attendant circumstances

to figure out what was going on. See, e.g., Substance Abuse & Mental

Health Servs. Admin., U.S. Dep’t of Health & Hum. Servs., Screening and

Assessment of Adolescents in Juvenile Justice Setting, in Screening and

Assessing Adolescents for Substance Use Disorders, Treatment

Improvement Protocol (TIP) Series 45 (2012) (noting that screening and

assessing adolescents in a juvenile justice setting is a complex task and

the evaluator must be alert to the comorbidities a juvenile experiencing

substance abuse may encounter, such as poor school performance). Yet,
 50

the State’s expert made no serious effort to understand what was going on

here.

And this isn’t the only issue of concern that the expert did not

properly consider. Majors suffered from scoliosis, or curvature of the

spine. It was apparently serious enough to require surgical intervention

and the placement of rods in his back at the age of twelve. Later, he had

to wear a brace of some kind. Although Majors was inclined to athletics,

he could no longer engage in contact sports in small town Iowa middle and

high schools. What was the impact of this development? Did it contribute

to feelings of anger and loneliness? See Ryszard Tomaszewski &

Magdalena Janowska, Psychological Aspects of Scoliosis Treatment in

Children, in Recent Advances in Scoliosis 301, 301–03 (Theodoros Grivas

ed., 2012) (noting the effects of scoliosis compound on existing challenges

of adolescence, creating altered perceptions of body image, anger,

embarrassment, and impairment of social functioning); Despina

Sapountzi-Krepia et al., The Experience of Brace Treatment in

Children/Adolescents with Scoliosis, 1 Scoliosis art. 8 (2006) (noting that

scoliosis can be a risk factor for psychological impairment in children and

adolescents, particularly in those undergoing brace treatment). How did

this affect Majors? The expert gives us no insight.

The record further indicates that as a child, Majors was mocked by

his peers because his family raised chickens in the country. According to

his discharge summary from Oakdale in 2003, Majors “seem[ed] to be an

angry individual who tend[ed] to ruminate on being ridiculed by other

children in the past and tend[ed] to lose his temper when things [did] not

go his way.” A nurse additionally noted that Majors “appear[ed] to have

many years of anger bottled up from teasing and abuse from peers.” He

was “tearful” when describing past experience of abuse and teasing, and
 51

his file notes Majors was “very immature (emotionally) and doesn’t cope

well with stress or problems.” The file suggests that Majors “might benefit

from therapy targeting interpersonal relationships, difficulties, and anger.”

These are the kinds of things that would interest a child developmental

psychologist or psychiatrist. See Anat Brunstein-Klomek et al., Bullying,

Depression, and Suicidality in Adolescents, 46 J. Am. Acad. Child &

Adolescent Psychiatry 40, 40–41 (2007) (noting that studies examining the

relationship between bullying, and depression and suicidality, found

victims were more likely to manifest more depressive symptoms,

psychological distress, and both suicidal ideations and suicide attempts

than nonvictims); Nicholas Carlisle & Eric Rofes, School Bullying: Do Adult

Survivors Perceive Long-Term Effects?, 13 Traumatology 16, 17–18, 23

(2007) (noting studies that determined the common emotional and

behavioral responses to bullying are vengefulness, anger, self-pity,

anxiety, low self-regard, and school absenteeism and discussing how some

symptoms remain even after bullying as stopped, and how anger and

vengeful ideation are a long-term effect of survivors of bullying); Calli

Tzani-Pepelasi, Childhood Bullying Can Cause Lifelong Psychological

Damage—Here’s How to Spot the Signs and Move On, The Conversation,

(last updated August 8, 2018), http://theconversation.com/childhood-

bullying-can-cause-lifelong-psychological-damage-heres-how-to-spot-the-

signs-and-move-on-100288 [https://perma.cc/JY5C-9976] (discussing

studies that outline effects of bullying including self-esteem issues and

anger due to repeated victimization). The State’s expert drives by these

very important developmental clues and finds nothing, individually or

cumulatively, in Majors’ background to support lessened culpability?

In addition, the State’s expert failed to recognize obvious features of

the record that show immaturity, such as compromised capacity to
 52

consider future consequences. When Majors was at Oakdale receiving

psychiatric treatment, he was preoccupied, if not obsessed, with the notion

that he threw his life away. Obviously, Majors came to the view that his

risk-taking calculus was unbalanced. One of the trademark features of

youth is undervaluing the long-term costs of their behavior to themselves

and others. See Laurence Steinberg & Elizabeth Scott, Less Guilty by

Reason of Adolescence: Developmental Immaturity, Diminished

Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009,

1012 (2003). Majors stewing over his predicament suggests he came to

recognize his “transient rashness, proclivity for risk, and inability to assess

consequences” that Miller finds lessen culpability in juveniles. 567 U.S. at

472, 132 S. Ct. at 2465.

One of the elements of youthful immaturity is the influence of mass

media. See generally Jeffery Jensen Arnett, Adolescents’ Use of Media for

Self-Socialization, 24 J. Youth & Adolescents 519, 520 (1995) (finding

media to be a significant part of adolescents’ lives, and the potential of

media in socialization of youth “especially strong”); Jonathan Seiden,

Comment, Scream-ing for a Solution: Regulating Hollywood Violence; An

Analysis of Legal and Legislative Remedies, 3 J. Const. L. 1010, 1010

(2001) (analyzing violence in film and the effects of viewing violent films on

juveniles). As noted by prestigious authority, the “visible and volatile”

influence of media is an important part of the socio-ecology of children and

youth. Nat’l Res. Council & Inst. of Med., Studying Media Effects on

Children and Youth 1 (2006).

Majors is a poster child of the influence of the media. He got the

idea of putting a plastic bottle on the end of his rifle to muffle the sound

from a Steven Segal movie. Sounds like a pretty immature reaction to me.

Copycat behaviors among juveniles who commit violent crime is not
 53

unusual. See Ray Surette, Self-Reported Copycat Crime Among a

Population of Serious and Violent Juvenile Offenders, 48 Crime &

Delinquency 46, 62 (2002).

And then there is the issue of adolescent drug use. Generally,

adolescent drug usage has been found to be a mitigating factor to be

considered in sentencing juvenile offenders. See, e.g., Seats, 865 N.W.2d

at 556 (“One of the circumstances the sentencing judge needs to consider

is whether substance abuse played a role in the juvenile’s commission of

the crime.”). It certainly should have been considered here.

At the time of resentencing, the State’s expert diagnosed Majors as

having alcohol-use disorder, cannabis-use disorder, and stimulant

disorder, specifically methamphetamine, all moderate and in sustained

remission. These disorders must have predated his imprisonment and

been developed as a juvenile. The record supports such a conclusion of

adolescent polysubstance abuse by Majors. Any reasonable exploration of

juvenile substance abuse would have yielded important information

relevant to Majors’ sentence.

The starting point is the accepted definition of substance-use

disorder. 11 According to the DSM-5, substance-use disorder is
characterized by a “cluster of cognitive, behavioral, and physiological

symptoms indicating that the individual continues using the substance

despite significant substance related problems.” Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 483 (5th ed. 2013)

[hereinafter DSM-5].

Adolescent substance use is associated with negative health and

behavioral outcomes, including alterations in neurodevelopment. See

11Under the DSM-IV framework, which Majors was diagnosed under, the various
alcohol- and substance-abuse disorders have been consolidated under the umbrella of
substance-use disorder in the DSM-5.
 54

generally Reagan Wetherill & Susan F. Tapert, Adolescent Brain

Development, Substance Use, and Psychotherapeutic Change, 27 Psych.

Addictive Behav. 393, 393 (2013) (“Adolescent substance use is associated

with negative health, social, and behavioral outcomes, including

alterations in neurodevelopment.”). Since the brain changes through

adolescence, exposure to neurotoxins, such as alcohol and illicit drugs,

may interrupt neurodevelopment and associated cognitive and behavioral

functioning. Id. at 394–96 (explaining the complex neurological pathways

that are impacted through behaviors such as drinking and illicit drug use).

An important characteristic of substance-use disorder is the “underlying

change in brain circuits that may persist beyond detoxification,” especially

in individuals with severe disorders. DSM-5 at 483.

Adolescent substance use has been linked to issues in interpersonal

relationships. Studies report that temperamental and personality traits

reflecting “behavioral undercontrol and poor self-regulation are associated

with adolescent substance use problems.” Laurie Chassin et al.,

Adolescent Substance Use, in Handbook of Adolescent Psychology 676

(Richard M. Lerner & Laurence Steinberg eds., 2d ed. 2004). The

personality characteristics most consistently associated with adolescent

substance use include “unconventionality, low ego control, sensation

seeking, aggression, impulsivity, and an inability to delay gratification.”

Id.

Additionally, adolescents with substance use problems are

characterized by

lower levels of executive functioning—that is, higher order
cognitive processes that allows for future goal-oriented
behavior. These processes include planning, organizational
skills, selective attention, hypothesis generations, cognitive
flexibility, maintenance of cognitive-set decision making,
judgment, inhibitory control, and self regulation.
 55

Id. at 677. Compared to adults, the health and social consequences of

substance abuse for adolescents are more serious due to a variety of

biological reasons. Garrett O’Connor, The Psychology of Adolescent

Addiction, 31 Val. U. L. Rev. 701, 701 (1997).

While experimentation with substances occurs for many

adolescents, some progress to regular use where the adolescent uses in an

attempt to achieve a high or intoxication or they use as a coping

mechanism. Id. at 707. This may lead to a change in behavior from

decreased school or job performance, social isolation, and deceitful

patterns of behavior with family and friends to prevent them from learning

about the drug use. Id. Other behaviors include lying, stealing, and

blaming others. Id. at 707–08. In the event the adolescent continues using

and their use becomes more frequent, more serious problems develop,

including progression in severity of delinquent behaviors, an increase in

depression, and reduced impulse control. Id.

Where other substances, such as alcohol, may require repeated uses

and exposure to cause damage to the brain, methamphetamine can induce

significant brain death within hours of a single high dose. Mary Holley,

How Reversible Is Methamphetamine-Related Brain Damage?, 82 N.D. L.

Rev. 1135, 1138 (2006). When someone is early in their addiction, the

crash from methamphetamine may appear like a “mild depression.” Id.

Continued and habitual use equates to a worse crash that lasts longer,

between seven to fourteen days. Id. at 1139. Following habitual use, the

person may sleep for days, present as irritable, and have physical

symptoms, such as headaches, to accompany the psychological. Id.

Additionally, “[n]early ninety percent of meth addicts experience at least

occasional hallucinations while intoxicated.” Id. at 1141.
 56

Following continued use, someone who is addicted to

methamphetamine may “fly into a rage and act aggressively or violently”

and may demonstrate “increase[ed] irritability, impatience, and

impulsiveness,” thereby impairing the user’s relationships with those

around them. Id. at 1140. It may also produce “profound insomnia” in

the user, though they are “not distressed by it, [as] he does not feel a need

for sleep. He feels highly productive, important, and intelligent. He

commonly does not realize he’s impatient. Instead, he places the blame

on others . . . .” Id. at 1139–40.

Not surprisingly, “[methamphetamine] use during adolescence is

associated with . . . behavioral problems such as increased anti-social

behaviors.” Jordan M. Buck & Jessica A. Siegel, The Effects of Adolescent

Methamphetamine Exposure, 9 Frontiers in Neuroscience 1, 2 (2015).

Additionally, in adolescent users, methamphetamine-induced

psychological and behavioral alterations appear to remain even after

secession of the drug. Id.

The State’s expert sailed by these substance-abuse issues.

Although polysubstance abuse was noted, it was simply not explored. In

light of the history of parental abuse, the school transfer issue, the

scoliosis, the mockery from childhood peers, the influence of the mass

media, the polysubstance abuse, and the pent-up anger in Majors, there

was a lot of material for a well-qualified child developmental psychologist

or psychiatrist to consider. But the State’s expert left these boulders

unturned. In light of the gaps, the district court must determine whether

the State successfully rebutted the notion that, “first and foremost,” a

juvenile offender has less culpability than an adult. The professional

opinion was not a meaningful evaluation utilizing child developmental

psychology. There is no indication that the district court evaluated the
 57

very weak nature of the expert testimony against the “first and foremost”

and “children are different” framework. Where it is uncertain whether the

correct legal standard has been applied, we may reverse and remand for

application of the correct legal standard. Showens, 845 N.W.2d at 449.

E. Flawed Analysis of Ability to Navigate Legal System. The

expert’s review of Majors’ medical records from 2003, finding that Majors

was competent to stand trial and that he was not insane, led the expert to

conclude that the Miller factor related to the ability of youth to interact

with the legal system was not in play. But that reasoning is demonstrably

incorrect. If Majors was incompetent or insane, there would be no trial,

no conviction, and no sentence. See State v. Edwards, 507 N.W.2d 393,

395 (Iowa 1993) (“Constitutionally, defendants may not be tried or

convicted while they are incompetent to stand trial or to assist in their

defense.”); State v. McMullin, 421 N.W.2d 517, 518 (Iowa 1988) (“Insanity

is an affirmative defense which, if proved, will preclude conviction of a

crime.”). In other words, if he was insane or incompetent, there would be

no need to consider Miller factors at all. If you use incompetence to stand

trial and insanity as screening tools, you totally eliminate the criterion of

difficulties juveniles face in navigating the court system as spelled out by

the Supreme Court in Graham, and in our caselaw. The analysis offered

by the expert is certainly, unquestionably, incorrect as a matter of law.

Indeed, the State’s expert did not address the concerns of Graham.

In Graham, the Court noted that youth have a limited understanding of

the criminal legal system, “are less likely than adults to work effectively

with their lawyers to aid in their defense” due to a lack of trust and more

“limited understandings of the criminal justice system and the roles of the

institutional actors within it.” 560 U.S. at 78, 130 S. Ct. at 2032. When

the question is appropriately framed, there is ample reason to believe that
 58

Majors did, in fact, have trouble navigating the legal system, precisely as

Graham forewarned.

The State’s expert clearly did not review the record in this case. If

she had, she would have learned that there was ample reason to believe

that Majors had trouble dealing appropriately with the legal system. Over

the course of the proceedings stemming from these charges, from 2002 to

the present, Majors had at least eleven attorneys of record, many of which

fairly quickly withdrew. Focusing on the relevant period of 2002–2003,

Majors was represented by at least four attorneys. On May 31, 2002, a

lawyer was appointed as counsel for Majors. That lawyer withdrew,

however, on June 4, at which point a second lawyer appeared. On

February 25, 2003, a third lawyer perfected the defendant’s appeal, which

was handled by the state appellate defender’s office. On remand, a fourth

lawyer undertook his representation, but withdrew on April 15. The

musical chairs with all the lawyers, at the very least, suggests Majors had

difficulty getting along with his legal representatives.

Ultimately, Majors agreed to plead guilty to one count of attempted

murder with the proviso that no appeal would be taken. 12 He then turned

around and filed a notice of appeal, pulling down his plea bargain. He
claimed that he did so because his parents and his attorney pressured him

to accept the original plea bargain and that his attorney later urged him

to appeal. After the appeal was filed, the original plea bargain failed and

Majors was back to square one. Eventually, he plead guilty not only to

12The condition of the plea bargain that no appeal be taken was very important to

the State. There was little in the trial information to suggest that Majors attempted to
murder anyone. No shots were fired. He hid in a closet, with duct tape, suggesting
perhaps a planned kidnapping or sexual assault but something other than attempted
murder. Although his rifle was loaded and he had clear shots at the victims, he did not
discharge the weapon. In the plea colloquy, Majors generally admitted the facts in the
trial information, but examination of the minutes do not clearly establish the basis for
attempted murder.
 59

attempted murder, which was the sole crime for which he was convicted

in the first plea bargain, but the additional crime of burglary. Because of

his on-off-on approach to the plea bargain, Majors ended up with an

additional ten years added onto his prison sentence. Inability to navigate

the legal system abounds in this example.

The State’s expert noted that Majors tried to manipulate the system

by feigning psychiatric illness pending disposition of criminal charges. To

the extent this is true, such a manipulative maneuver is part of the normal

adolescent effort to avoid responsibility but also shows a fundamental

misunderstanding of how our legal system works.

Further, as correctly narrated by the State’s expert, Majors came up

with numerous oddball and inconsistent stories attempting to explain his

behavior. No doubt he attempted to manipulate the legal system to lessen

his culpability, and those attempts failed. It seems likely that his

immaturity led him to make these inconsistent stories and failed efforts to

manipulate the legal system. As every parent knows, nonacceptance of

blame and inconsistent reporting is a trademark feature of youth called to

account for their actions.

Finally, as with the age criterion, the expert shifted the burden of

proof on the question of the ability of juvenile defendants to navigate the

court system. When asked whether Majors was able to understand the

legal proceedings, the expert noted that they “don’t have any evidence to

the contrary.” But evidence to the contrary is exactly what is required to

eliminate difficulties in navigating the court system as a mitigating factor

when considering imposition of an adult mandatory sentence on a juvenile

offender.

The district court did not focus on the potential difficulties Majors

had in navigating the legal system. The district court did emphasize that
 60

Majors backed out of a plea agreement, ultimately resulting in an

additional ten-year sentence. If this case were to be remanded, the district

court would have an opportunity to give the question more careful

consideration.

F. Flawed Approach to Impulsivity. The State’s expert suggested

that because Majors engaged in planning for his crime, Majors lacked the

impulsivity associated with youth. There is no exact and unique definition

of impulsivity, and there is no agreement over its major components.

Nour-Mohammad Bakhshani, Impulsivity: A Predisposition Toward Risky

Behaviors, 3 Int’l J. High Risk Behavs. & Addiction 1, 3 (2014). Impulsivity

has sometimes been defined as swift action without forethought or

conscious judgment, but also as “behavior without adequate thought” and

“the tendency to act with less forethought than do most individuals of

equal ability and knowledge.” F. Gerard Moeller et al., Psychiatric Aspects

of Impulsivity, 158 Am. J. of Psychiatry 1783, 1783 (2001).

But under the caselaw, it is clear that the latter two definitions of

impulsivity apply when considering the mitigating features of youth. For

example, in Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658 (1993), the

Supreme Court considered a case where the nineteen-year-old defendant

surveyed the layout of the store prior to a robbery, determined the number

of workers present, determined to kill any witnesses to the crime, retrieved

a handgun, engaged in robbery, and killed an employee. Id. at 353, 113

S. Ct. at 2661. The Court noted that the jury was entitled to consider the

mitigating qualities of youth which “often result in impetuous and ill-

considered actions and decisions.” Id. at 367, 113 S. Ct. at 2669.

Similarly, in Roper, a seventeen-year-old defendant planned to commit a

burglary and murder by breaking and entering, tying up a victim, and

throwing her from a bridge into the water. 543 U.S. at 556–57, 125 S. Ct.
 61

at 1187–88. Counsel challenging his sentence called clinical psychologists

and other witnesses indicating that the defendant was “very immature,”

and “very impulsive.” Id. at 559, 125 S. Ct. at 1189. In granting relief, the

Roper Court cited Johnson for the proposition that juveniles engage in

“impetuous and ill-considered actions.” Id. at 569, 125 S. Ct. at 1195

(quoting Johnson, 509 U.S. at 367, 113 S Ct. at 2669). Likewise, in

Graham, the juvenile defendant engaged in a crime spree which showed

planning, yet the Court again in granting relief cited Johnson, noting that

the qualities of youth included a tendency to make “impetuous and ill-

considered actions and decisions.” 560 U.S. at 72, 130 S. Ct. at 2028

(quoting Johnson, 509 U.S. at 367, 113 S. Ct. at 2669).

Clearly, under Johnson, Roper, and Graham, the fact that the

underlying crime involved planning does not negate the notion that the

signature qualities of youth, including the tendency to make “impetuous

and ill-considered decisions,” may be considered as a mitigating factor in

the sentencing of a juvenile offender. And, as noted by Roby, “[t]he

aggravating circumstances of a crime that suggest that an adult offender

is depraved may only reveal a juvenile offender to be wildly immature and

impetuous.” 897 N.W.2d at 146. The fact that juveniles have the ability

to plan a crime does not negate the proposition that “children are different”

or the application of Roper-Graham-Miller principles. To the extent the

district court relied on “planning of the crime” as preventing application of

the mitigating features of youth, it applied the wrong legal standard.

G. Treatment of Rehabilitation. Developmental psychology tells

us two things about the prospects for the rehabilitation of juveniles and

our ability to predict which offenders will commit violence in the future.

First, rehabilitation is the norm for juvenile offenders, even when they

commit heinous crimes. The origins of the juvenile justice system are
 62

rooted in the idea of more rehabilitation for youthful offenders than their

adult counterparts. See Lyle, 854 N.W.2d at 390–92 (summarizing the

social science and caselaw underlying the rehabilitative purposes inherent

in juvenile justice); Comm. on Assessing Juvenile Justice Reform, Nat’l

Acad. of Scis., Reforming Juvenile Justice 1–4, 31–49 (2013) [hereinafter

Nat’l Acad. of Scis., Reforming Juvenile Justice] (outlining the penological

differences in dealing with juvenile and adult offenders); Martin Gardner,

Youthful Offenders and the Eighth Amendment Right to Rehabilitation:

Limitations on the Punishment of Juveniles, 83 Tenn. L. Rev. 455, 471–74

(2016) (expounding on the rehabilitative origins of the juvenile justice

framework); Kathryn Monahan et al., Juvenile Justice Policy and Practice:

A Developmental Perspective, 44 Crime & Just. 577, 577 (2015)

[hereinafter Monahan et al., A Developmental Perspective] (“The early

juvenile court viewed and treated juveniles as distinct from adults, with a

greater focus on rehabilitation as opposed to punishment for youthful

criminal behavior.”).

In fact, a developmental approach recognizes that the illegal

behavior occurred during a period of development when youth are more

likely to exercise poor judgment and engage in risky behavior in pursuit of

thrills and excitement. Nat’l Acad. of Scis., Reforming Juvenile Justice at

20 (“A developmental approach to juvenile justice recognizes that illegal

acts committed by adolescents occur in the context of a distinct period of

human development, a time of life when individuals are more likely to

exercise poor judgment, take risks, and pursue thrills and excitement.”).

Research reinforces that juveniles are different from adults in their

cognitive processing and development, making them categorically

different. Id. at 32 (“[A] growing body of research [over the last decade] on

adolescent development, particularly brain development . . . reinforces the
 63

conventional wisdom that adolescents are different from adults in ways

that affect their criminal conduct, and it has probably contributed to the

reemergence of less punitive attitudes toward juvenile offenders.”). While

the pendulum has swung between orientations of punishment versus

rehabilitation, it has shifted back through the use of developmental

sciences. Monahan et al., A Developmental Perspective, 44 Crime & Just.

at 578 (noting that declining crime rates, increasing support for

rehabilitative penological approaches, and advancing scientific

understanding of developmental science contribute to this shift). This was

best captured in Roper, where the Court recognized the “diminished

culpability of juveniles” and their greater capacity for rehabilitation due to

their “transient immaturity.” 543 U.S. at 571, 573, 125 S. Ct. at 1196–

97. This principle was applied in subsequent cases regarding juvenile

culpability in both the United States Supreme Court and this court. See

Miller, 567 U.S. at 471, 132 S. Ct. at 2464; Graham, 560 U.S. at 68, 130

S. Ct. at 2026; Lyle, 854 N.W.2d at 392.

Second, while some offenders may well reoffend in the future, it is

extremely difficult, if not impossible, to make predictions of future

dangerousness. See, e.g., Erica Beecher-Monas, The Epistemology of

Prediction: Future Dangerousness Testimony and Intellectual Due Process,

60 Wash. & Lee L. Rev. 353, 362–63 (2003) (suggesting that clinical

predictions about future dangerousness are too unreliable for use in

court); Adam Lamparello, Using Cognitive Neuroscience to Predict Future

Dangerousness, 42 Colum. Hum. Rts. L. Rev. 481, 488 (2011) (“[T]he

courts––and commentators––have consistently recognized that predictive

adjudications, whether it be for future dangerousness or lack of control,

are often unreliable or . . . simply inaccurate.”). In fact, the likelihood of a

juvenile offender become a chronic adult criminal is small. Alex R.
 64

Piquero, Youth Matters: The Meaning of Miller for Theory, Research, and

Policy Regarding Developmental/Life-Course Criminology, 39 New Eng. J.

on Crim. & Civ. Confinement 347, 353 (2013) [hereinafter Piquero, Youth

Matters] (“Only a very small number of persons continue to offend into and

throughout adulthood . . . .”).

Rates of all kinds of crimes committed by juveniles decrease

precipitously with age, a phenomenon referred to as the “age-crime curve.”

Laurence Steinberg, The Influence of Neuroscience on US Supreme Court

Decisions About Adolescents’ Criminal Culpability, 14 Nature Reviews

Neuroscience 513, 515 & fig. 1 (2013) (illustrating “a consistent

relationship between age and crime” across offenses and despite changes

in the overall crime rate); see also Alex R. Piquero et al., Violence in

Criminal Careers: A Review of the Literature from a Developmental Life-

Course Perspective, 17 Aggression & Violent Behav. 171, 172 (2012)

(examining theoretical frameworks for longitudinal offending patterns).

Further, across many studies, it appears that even for violent offenders,

“the likelihood of repeating [violence] is very rare.” Piquero, Youth Matters,

39 New Eng. J. on Crim. & Civ. Confinement at 356. These difficulties are

even more present when juvenile offenders are involved. See Roper, 543

U.S. at 573, 125 S. Ct. at 1197 (“It is difficult even for expert psychologists

to differentiate between the juvenile offender whose crime reflects

unfortunate yet transient immaturity, and the rare juvenile offender whose

crime reflects irreparable corruption.”); Larson et al., Mental Health

Assessments, 39 New Eng. J. on Crim. & Civ. Confinement at 335–36

(“[T]here is currently no basis in current behavioral science nor well-

informed professional knowledge that can support any reliable forensic

expert opinion on the relative likelihood of a specific adolescent’s prospects

for rehabilitation at a date that may be years to decades in the future.”);
 65

Piquero, Youth Matters, 39 New Eng. J. on Crim. & Civ. Confinement at

355 (“[I]t is very difficult to predict early in the life-course which individual

juvenile offender will go on to become a recidivistic adult offender.”); Scott

et al., Juvenile Sentencing Reform, 88 Temp. L. Rev. at 684 (“[P]rediction of

future violence from adolescent criminal behavior, even serious criminal

behavior, is unreliable and prone to error.”).

In Roby, we stated that rehabilitation was a factor that supports

mitigation for most juvenile offenders because “delinquency is normally

transient.” 897 N.W.2d at 147. We emphasized that “judges cannot

necessarily use the seriousness of a criminal act, such as murder, to

conclude the juvenile falls within the minority of juveniles who will be

future offenders or are not amenable to reform.” Id. After all, “the

signature qualities of youth are transient.” Lyle, 854 N.W.2d at 394

(quoting Roper, 543 U.S. at 570, 125 S. Ct. at 1196). We have further

concluded, however, that in the resentencing of juveniles, current evidence

regarding rehabilitation is admissible. State v. Ragland, 836 N.W.2d 107,

121–22 (Iowa 2013) (finding that individualized sentencing considerations,

including demonstrated maturity and rehabilitation, must necessarily be

meaningfully considered in juvenile sentencing).

While rehabilitation is thus the norm, it is extremely difficult to

predict future dangerousness of adults and even harder with respect to

juveniles. The inability to identify irreparably corrupt juveniles led the

United States Supreme Court to categorical rules in Graham and Roper.

Here, Majors has been incarcerated for most of his prison stay in a

maximum security prison. Because of the shortage of available

programing and the length of his sentence, he has been waitlisted for

victim-impact programming. Juveniles serving lengthy sentences are

often disadvantaged in prison by lack of services to meet their
 66

developmental needs. Some prisons can be “complicit in the lack of

development” because “it is the policy in some prisons to withhold

counseling, education, and rehabilitation programs for those who are

ineligible for parole consideration.” Graham, 560 U.S. at 79, 130 S. Ct. at

2032–33. Majors is no exception.

Majors had a lengthy disciplinary record while in prison related to

drug offenses and other nonviolent offenses. In 2014, six of Majors’ eight

offenses were drug or alcohol related; in 2013 all four of his offenses were

drug or alcohol related. In 2012, four out of ten were drug or alcohol

related; in 2010 he had one offense for not wearing his identification; and

a few years he had some verbal or possession related offenses. Research

suggests that there are many causes of prison disciplinary problems. See

generally David DeMatteo et al., The Use of Measures of Psychopathy in

Violence Risk Assessment, in Handbook of Violence Risk Assessment 19–

40 (Randy S. Otto & Kevin S. Douglas eds., 2010). Additionally, studies

show age, education, and social supports can contribute to misconduct.

Alan J. Drury & Matt DeLisi, The Past Is Prologue: Prior Adjustment to

Prison and Institutional Misconduct, 90 Prison J. 331, 333 (2010) (noting

studies that indicate “inmates who are younger, male, less educated, lack

a social support network . . . and/or have a history of violent behavior

engage in significantly higher levels of misconduct in prison than inmates

not possessing these characteristics”).

A lengthy prison sentence gives little hope and little incentive to

reform; but once it became possible that he might be able to challenge the

mandatory minimum sentence, Majors’ behavior, consistent with renewed

hope, turned around. Majors now has not had any discipline in the four

years prior to the hearing in this case. Even the expert stated that the last

four years evinced Majors had “the capacity for change.”
 67

In 2013, Judge Ann Power-Forde, sitting as a member of the Grand

Chamber of the European Courts of Human Rights, summed up the

importance of the prospect of release for someone incarcerated, stating

that

hope is an important and constitutive aspect of the human
person. Those who commit the most abhorrent and egregious
of acts and who inflict untold suffering upon others,
nevertheless retain their fundamental humanity and carry
within themselves the capacity to change. Long and deserved
though their prison sentences may be, they retain the right to
hope that, someday, they may have atoned for the wrongs
which they have committed. They ought not to be deprived
entirely of such hope. To deny them the experience of hope
would be to deny a fundamental aspect of their humanity and,
to do that, would be degrading.

Vinter & Others v. United Kingdom, [2013] Eur. Ct. H.R. 645 (July 9, 2013),

http://www.bailii.org/eu/cases/ECHR/2013/645.html. In Graham, the

emphasis on rehabilitation was renewed. See Chad Flanders, The

Supreme Court and the Rehabilitative Ideal, 49 Ga. L. Rev. 383, 413 (2015)

[hereinafter Flanders, Rehabilitative Ideal] (“Indeed, the fact that life in

prison without parole foreclosed ‘the rehabilitative ideal’ (as the Court put

it) is central to its holding. . . . [and] is perhaps the theme of the opinion

. . . .” (Footnote omitted.)). With rehabilitation comes hope. Justice

Kennedy stated the proposition succinctly when he wrote that “[l]ife in

prison without the possibility of parole gives no chance for fulfillment

outside prison walls, no chance for reconciliation with society, [and] no

hope.” Graham, 560 U.S. at 79, 130 S. Ct. at 2032.

Tailoring rehabilitation to the individual can be “both backward-

looking and retributive or forward-looking and rehabilitative.” Flanders,

Rehabilitative Ideal, 49 Ga. L. Rev. at 394. The difference, simply defined,

is that
 68
[i]f the judge is looking at details about the offender . . . to find
out what he deserves as his punishment, then the judge’s
individualizing is backward-looking: he is trying to fit the
offender to the right amount of deserved retributive
punishment. . . .

But if the judge is using those same details to determine
how much rehabilitation the offender needs––as well as his
fitness for rehabilitation––the judge’s individualizing is
forward-looking.

Id.

Further, there appears to be a life cycle of prison disciplinary events

for juvenile offenders. During early years of incarceration, juvenile

offenders often engage in a higher base rate of misconduct with a reduction

as they mature. Larson et al., Mental Health Assessments, 39 New Eng.

J. on Crim. & Civ. Confinement at 341 (“We know that even chronic and

violent juvenile offenders are more likely to desist from such behaviors

than continue them into adulthood.”). And, it is hardly surprising that

Majors, who has a history of untreated polysubstance abuse, has several

disciplinary violations related to drug and alcohol abuse in light of the

inability of the department of corrections to provide him with substance-

abuse programming.

Among other things, the literature establishes that youthful

offenders are more likely to be victims of both physical nonsexual and

sexual crime and property crime. Id. at 337 nn.75–76 (providing statistics

on crimes against incarcerated juveniles). Majors was a victim of sexual

assault while incarcerated. Such victimization increases the likelihood of

disciplinary history.

In any event, on the question of future rehabilitation, predictions are

often quite difficult. We should be extremely cautious of unstructured

clinical evaluations by a psychologist unfamiliar with the principles of

child developmental psychology.
 69

Further, there is the issue of consistency. Judges necessarily make

an ad hoc judgment, case by case, but the parole board is in a better

position to ensure consistency. While the district court’s characterization

of the rehabilitation as minimally favorable is, if anything, an

understatement, it is unclear whether the district court regarded

rehabilitation as the norm under a “first and foremost” and “children are

different” framework. As a result, reversal and remand is appropriate.

Showens, 845 N.W.2d at 449–50.

H. Lack of Remorse as a Juvenile Trait. One of the signature

features of youth is thoughtlessness toward others. “Adolescents, often

thoughtless and impulsive, will perpetrate a crime . . . without considering

its impact on others.” David E. Arredondo, Child Development, Children’s

Mental Health and the Juvenile Justice System: Principles for Effective

Decision-Making, 14 Stan. L. & Pol’y Rev. 13, 21 (2003). Compared to

adults, the characteristics underlying remorselessness, such as

egocentrism and lack of empathy, do not have the same predictive

importance for future behaviors because the traits are so common in

adolescent development. Adam Saper, Juvenile Remorselessness: An

Unconstitutional Sentencing Consideration, 38 N.Y.U. Rev. L. & Soc.

Change 99, 137 (2014) [hereinafter Saper, Juvenile Remorselessness]

(“Sociological pressures limit a youth’s expression of remorse . . . [and]

these expressions are hindered by developmental limitations ranging from

an inability to fully appreciate the sensation of remorse, to inadvertent

pain avoidance techniques that result in the suppression of otherwise

existing emotions.”).

And, as noted in Graham, “[t]he juvenile should not be deprived of

the opportunity to achieve maturity of judgment and self-recognition of

human worth and potential. . . . Maturity can lead to that considered
 70

reflection which is the foundation for remorse, renewal, and

rehabilitation.” 560 U.S. at 79, 130 S. Ct. at 2032 (emphasis added). And

in the words of Roper, youth have an “underdeveloped sense of

responsibility.” 543 U.S. at 569, 125 S. Ct. at 1195. In other words, seen

through the lens of child development as applied in Graham and Roper, a

juvenile’s lack of remorse is not the equivalent of a lack of remorse in fully

developed adults. It is part of youthful immaturity, and therefore a

mitigating factor, not an aggravating factor, in sentencing.

Further, even to the extent relevant, remorselessness cannot be

assessed in a clinical interview. Indeed, as a youth, the record reveals that

Majors had trouble communicating in group, tended to keep to himself,

and not volunteer. According to the DSM-5, psychologists should only

conclude that an individual lacks remorse by looking at

multiple information sources. . . . In addition to the
individual’s self-report, it is necessary to consider reports by
others who have known the individual for extended periods of
time [and across relationships and settings] (e.g., parents,
teachers, co-workers, extended family members, peers).

DSM-5 at 470. No evidence in this case was offered to comply with the

DSM-5 requirement.

At the most recent hearing, Majors, now in his mid-thirties,

apologized to the victims. He asked the court for permission to address

them, but that was denied. Majors proceeded to take full responsibility for

his actions and apologized, saying “I would just like to apologize. I couldn’t

imagine anybody running into my house and pointing a gun at my mom,

couldn’t imagine what the Peckhams went through. I’m sorry for it.”

In short, lack of remorse is a transient juvenile trait that is often

ameliorated as the juvenile matures. Those in charge of sentencing must

not apply adult standards of remorse to juveniles; if they do, they fail to
 71

recognize that children are different from adults in terms of their emotional

and social development. See Stephanos Bibas & Richard A. Bierschbach,

Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85,

94 (2004) (“Seemingly remorseless acts by children or adolescents can

affect whether they are tried as juveniles or as adults.”); Kristin Henning,

Criminalizing Normal Adolescent Behavior in Communities of Color: The Role

of Prosecutors in Juvenile Justice Reform, 98 Cornell L. Rev. 383, 440–41

(2013) (noting that factors such as language skills, limited life experiences,

diminished capacity, peer pressure, teenage bravado, and implementation

of coping mechanisms—humor, denial, or indifference—make remorse “a

particularly unreliable measure of a youth’s amenability to treatment and

need for punishment”); Lauren M. Kelly, Admit the Crime or Do the Time:

Pennsylvania’s Juvenile Transfer Conundrum, 73 U. Pitt. L. Rev. 563, 579

(2012) (noting that paradoxically “[b]y requiring the juvenile to take

responsibility for his action and show remorse,” that “the juvenile is

implicitly required to admit guilt”). See generally Martha Grace Duncan,

“So Young and So Untender”: Remorseless Children and the Expectations of

the Law, 102 Colum. L. Rev. 1469 (2002) (exploring the inability of courts

to correctly adjudge remorse in juveniles, and questioning the validity of

remorsefulness in predicting recidivism and rehabilitation); Saper,

Juvenile Remorselessness, 38 N.Y.U. Rev. L. & Soc. Change at 99 (framing

consideration of remorselessness in the sentencing of juveniles as

unconstitutional due to key developmental differences in youth and adults

regarding remorse, and the propensity of courts to mistake hallmarks of

juvenile developmental immaturity as dispositive of remorselessness). The

district court does not appear to have utilized a “first and foremost” and

“children are different” framework in evaluating the lack of remorse.

Again, “[p]erceptions applicable to adult behavior cannot normally be used
 72

to draw conclusions from juvenile behavior.” Roby, 897 N.W.2d at 147.

On the remorse issue, Majors erroneously was treated like an adult by the

district court.

I. A Note on Discretion. We have indicated that the review of a

district court sentence applying Miller factors is for abuse of discretion.13

But this does not mean the discretion is freestanding and without bounds.

Indeed, while an element of discretion may be involved, that discretion

may only be exercised when the state makes a compelling case that the

Miller factors defeat the ordinary presumption against imposition of the

mandatory minimums for juvenile offenders. The discretion must be

exercised in a fashion that recognizes that the ability of judges to predict

which offenders will return to crime is quite limited 14 and that subjective

decisions are not very useful and can lead to serious fairness concerns.

Unbridled district court discretion would have several unacceptable

consequences. First, it would allow for a variable enforcement of

constitutional rights. Second, it would further open the door to implicit

bias that is already rampant in our criminal justice system. See Jeffrey

Fagan, The Contradictions of Juvenile Crime & Punishment, Daedalus,

Summer 2010, at 43, 51–52 (noting that “[r]acial disparities in juvenile
detention and incarceration closely resemble racial disparities in the

imprisonment and jailing of adults,” as well as providing statistics and

analysis to that effect); Sandra Graham & Brian S. Lowery, Priming

13Although I joined the Roby decision in its entirety, upon reflection, I doubt that
the abuse of discretion standard is the correct standard when constitutional claims are
at stake. Constitutional claims must apply equally across all cases and should not be
subject to variabilities in the exercise of judicial discretion.
14For instance, in an amicus brief filed in Miller, juvenile court judges explained
that “the criminal justice system cannot predict what kind of person a fifteen-year-old
juvenile offender will be when he is 35 or 55 or 75.” Brief of Former Juvenile Ct. Judges
as Amici Curiae in Support of Petitioners at 1, Miller v. Alabama, 567 U.S. 460, 132 S. Ct.
2455 (Nos. 10–9646, 10–9647) 2012 WL 135044, at *1.
 73

Unconscious Racial Stereotypes About Adolescent Offenders, 28 Law &

Hum. Behav. 483, 499 (2004) (analyzing the results of two studies on

racial disparities in the juvenile justice system, finding generalized racial

bias, and noting that “[e]ven decision makers with good intentions are

susceptible”).

J. Summary. Writing a few years ago, Scott et al., declared that

“adhering to the Court’s developmental framework and limiting the impact

of punitive impulses toward juvenile offenders generally poses an ongoing

challenge.” Scott et al., Juvenile Sentencing Reform, 88 Temp. L. Rev. at

714. They are certainly correct.

Unfortunately, this case represents unprincipled backsliding.

Stripped of the window dressing, the hearing in this case was the kind

utilized, day in and day out, in the sentencing of adults. For the reasons

stated above, the sentence in the case must be vacated and the case

remanded for a new sentencing hearing.

II. Ineffective Assistance of Counsel.

A. Introduction. On appeal, Majors claims that his counsel was

ineffective at his resentencing hearing. For reasons that completely escape

me, criminal defense lawyers all too often regard sentencing hearings as

requiring them only to review a presentence investigative (PSI) report for

errors or mistakes and to present a smattering of argument to the judge

prior to sentencing. See State v. Hill, 878 N.W.2d 269, 275–76 (Iowa 2016)

(Appel, J., concurring specially) (noting the critical nature of sentencing

within criminal proceedings and exploring the professional responsibilities

of attorneys related to sentencing). In our current system, where plea

bargaining is the norm, the sentencing proceeding is the most important

part of a criminal proceeding.
 74

There has been recognition in the literature that sentencing is given

short shrift by the participants. As noted by one authority, “[s]entencing

is too often considered an afterthought rather than seen as a critical stage

in a criminal case.” Cait Clarke & James Neuhard, “From Day One”: Who’s

in Control as Problem Solving and Client Centered Sentencing Takes Center

Stage?, 29 N.Y.U. L. Rev. & Soc. Change 11, 12 (2004). As discussed

below, the problem becomes more acute when dealing with a juvenile

offender.

B. Applicable Standards for Ineffective Assistance of Counsel.

The American Bar Association’s Center for Criminal Justice states that

counsel in a criminal case “has a duty independently to investigate the

client’s circumstances, including such factors as previous history, family

relations, economic condition, and any other information relevant to

disposition.” Juvenile Justice Standards: Standards Relating to Counsel

for Private Parties, standard 9.2(b)(ii), at 175 (Inst. Judicial Admin. & Am.

Bar Ass’n 1980). Further, a defense lawyer “should present all arguments

or evidence which will assist the court or its agents in reaching a

sentencing disposition favorable to the accused” and should verify,

supplement, or challenge information in any presentence report made

available to the defense “rather than relying on the court’s presentence

report.” Standards for Criminal Justice, standard 4-8.3(c), (e) (Am. Bar

Ass’n 4th ed. 2015).

A go-along-to-get-along philosophy does not comport with effective

assistance for a criminal defendant. As stated in the ABA Standards for

Criminal Justice: Prosecution Function and Defense Function 4-1.2(e), at

120–21 (3d ed.1993),

Advocacy is not for the timid, the meek, or the retiring. Our
system of justice is inherently contentious, albeit bounded by
the rules of professional ethics and decorum, and it demands
 75
that the lawyer be inclined toward vigorous advocacy. Nor can
a lawyer be half-hearted in the application of his or her
energies to a case. Once a case has been undertaken, a lawyer
is obliged not to omit any essential lawful and ethical step in
the defense, without regard to compensation or the nature of
the appointment. . . .

Because the law is a learned profession, lawyers must take
pains to guarantee that their training is adequate and their
knowledge up-to-date in order to fulfill their duty as
advocates.

Id. cmt., at 122–23 (footnote omitted); see also State v. Clay, 824 N.W.2d

488, 495–96 (Iowa 2012).

It is not enough for counsel at sentencing to simply look over the PSI

report, make a few corrections, and plead for mercy. Counsel must engage

in thorough preparation, develop a sensible plan, and mount a vigorous

mitigation defense. See generally Miriam S. Gohara, Grace Notes: A Case

for Making Mitigation the Heart of Noncapital Sentencing, 41 Am. J. Crim.

L. 41 (2013) (noting the success of well-prepared investigation and

presentation of mitigating life history in legal proceedings). The need for

zealous counsel is critical in cases involving juvenile sentencing. There

can be a temptation, contrary to the teachings of Roper, Miller, Null, and

Roby, to sentence juveniles harsher than adults on the ground that early

onset of violent criminal activity shows a particularly depraved person.

But a sentencing judge must be given the proper understanding of child

developmental psychology before sentencing a juvenile offender to an adult

sentence.

Not surprisingly, Juvenile Justice Standards provide that “[t]he

lawyer should seek to secure the assistance of psychiatric, psychological,

medical or other expert personnel needed for purposes of evaluation,

consultation or testimony with respect to formation of a disposition plan.”

Juvenile Justice Standards: Standards Relating to Counsel for Private

Parties, standard 9.2(c), at 177; see Barbara Fedders, Losing Hold of the
 76

Guiding Hand: Ineffective Assistance of Counsel in Juvenile Delinquency

Representations, 14 Lewis & Clark L. Rev. 771, 796 (2010) (noting the

systematic failure of juvenile delinquency attorneys to gather necessary

records or hire experts). See generally Beth Caldwell, Appealing to

Empathy: Counsel’s Obligation to Present Mitigating Evidence for Juveniles

in Adult Court, 64 Me. L. Rev. 391 (2012) [hereinafter Caldwell, Appealing

to Empathy] (discussing broadly the professional obligations of attorneys

to present mitigating evidence and the impact such mitigation may have

on case outcomes).

Attorneys have a range of responsibilities unique to juvenile

representation. By way of example,

the National Juvenile Defender Center interprets the duties of
competence and diligence to require that juvenile defense
attorneys are “well-versed in the areas of child and adolescent
development” and have a “working knowledge,” and contact
with experts, in “collateral consequences” of conviction,
special education, abuse and neglect, cultural competence,
and mental health. In addition, these standards indicate that
competent juvenile defense counsel should consult “with
mitigation specialists, social workers, and mental health,
special education, and other experts to develop a plan
consistent with the client’s expressed interests” at the
disposition hearing. Counsel should also “prepare[] and
present[] the court with a creative, comprehensive, strengths-
based, individualized disposition alternative consistent with
the client’s expressed interests.” Although these standards
relate to the representation of juveniles in delinquency court,
they are germane to representing juvenile offenders in adult
court.

Caldwell, Appealing to Empathy, 64 Me. L. Rev. at 410–11 (quoting Robin

Walker Sterling, Nat’l Juvenile Defs. Ctr., Role of Juvenile Defense Counsel

in Delinquency Court 14, 18 (2009)).

These standards are designed to apply in juvenile adjudications, but

it is inconceivable to me that a lesser standard would apply in a criminal
 77

sentencing proceeding involving a juvenile or in a resentencing hearing of

a juvenile offender.

C. Application of Standards. In light of these standards, a strong

case can be made that Majors’ counsel was ineffective. In considering a

resentencing of a juvenile offender, the fact finder must be introduced to

the science of adolescent brain development in some fashion. Such

evidence may be received through an expert who testifies about what is

known of adolescent brain development and its corresponding thought

processes. Jenny E. Carroll, The Problem with Inference and Juvenile

Defendants, 45 Fla. St. U. L. Rev. 1, 49 (2017) (noting that “[s]uch

testimony could occur in two forms: an expert could evaluate a particular

defendant and testify as to her cognitive processes, or an expert could

speak more broadly to what is generally known of adolescent brain

development and its corresponding thought processes” (footnote omitted)).

But Majors’ counsel took no steps to present the court with this kind

of critical information. He did not challenge the qualifications of the

State’s expert and allowed the prosecutor to ask a long series of leading

questions to his expert. His involvement with the generalized state expert

was limited to cursory cross-examination of the State’s witnesses.

For example, counsel for Majors did not meaningfully challenge the

just-short-of-eighteen theory. He did not confront the expert with the

many authorities in child psychology to the contrary. And, counsel did

not present the caselaw to the contrary to the district court. Indeed,

counsel did not provide a brief on sentencing. None of the applicable

caselaw was presented to the district court. Similarly, counsel did not

explore the “first and foremost” dictates of Roby, either through cross-

examination of the expert or in his nonexistent briefing before the court.
 78

Counsel offered no evidence at the hearing other than a brief

statement from the client. There is certainly nothing in the record to

suggest that counsel did any independent investigation of the long list of

potentially mitigating leads which would have been revealed from a

cursory review of the trial record.

On appeal, the State asserts correctly that the record shows that

Majors did not wish to have an independent medical examination and that

he explicitly directed his lawyer not to pursue it. There are three problems

here. First, an independent medical examination is not what he really

needed. No one claimed he had a current medical condition that required

diagnosis. Indeed, the State explicitly declined to claim, for instance, that

Majors had any diagnosable disorder such as an antipersonality conduct

disorder. What Majors’ counsel desperately needed, as is abundantly clear

in this case, was a child development expert to explain to counsel the

fundamentals of child developmental psychology, assist in the

development of the case, and offer testimony to support Majors’ position.

Without such assistance, the counterintuitive principles of child

development psychology were wholly unpresented and unexplored in this

case.

Second, the decision whether to call an expert witness is not

generally a client decision but rests with effective counsel. See State v.

Sammons, 749 P.2d 1372, 1377 (Ariz. 1988) (en banc) (finding the decision

to call an expert witness “a matter of trial strategy” for counsel); Davis v.

State, 723 S.E.2d 431, 434 (Ga. 2012) (stating that the decision to call

experts is “within the broad range of professional conduct afforded trial

attorneys”). Further, Majors’ expressed preference made no sense. First,

there was plenty of time prior to the hearing for his counsel to hire a

qualified child development psychologist. Second, if the record was later
 79

supplemented, there was no significant possibility that this decision would

have delayed his release. He had not yet taken substance abuse and

victim impact programming. There was little possibility that any delay

caused by the hiring of a qualified expert witness would have significantly

delayed his release from prison. Acquiescing in the client’s desire not to

hire an expert was the easiest course, but it did not reflect zealous

advocacy.

It is also suggested that counsel made a strategic decision not to call

an expert because he elicited the testimony he needed from the State’s

expert. But in light of the completely inadequate testimony obtained from

the State’s expert, this conclusion simply cannot be sustained. Counsel

for Majors seems to have been unaware of the child developmental science

and the applicable Iowa caselaw. It is difficult to understand the strategic

reasoning behind not hiring a qualified expert to prevent the risk of a

runaway train based upon unqualified expert opinion.

In addition to the question of duty, there is the question of prejudice.

In order to find prejudice, our confidence in the outcome must be

undermined. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct.

2052, 2068 (1984) (“The defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different . . . [which is] sufficient to undermine

confidence in the outcome.”); Ledezma v. State, 626 N.W.2d 134, 143 (Iowa

2001) (applying the Strickland ineffective-assistance standard in Iowa

caselaw). Based on the above, my confidence in the sentencing outcome

is definitely undermined. The district court simply did not have the benefit

of an appropriate presentation that explained the principles of child

psychology and applied them to the current case.
 80

And there was a lot to work with in this case. With a juvenile

offender facing an adult mandatory minimum sentence, there almost

always is. Indeed, after examining the aspects of the record explored

above––including abuse by his father, polysubstance abuse, teasing about

his family’s raising of chickens, the nonobvious social and psychological

effects of scoliosis, transfer from public school to an alternative school,

tearful reminiscence regarding the childhood abuse and teasing inflicted

on him, the influence of media as evidence of immaturity, the issues

surrounding the psychology of juvenile remorse, the unchallenged use of

the just-short-of-eighteen theory by the State, etc.––can anyone doubt that

Majors would have benefitted had local counsel hired a consulting or

testifying expert in child developmental psychology? And had that

happened, isn’t there, at the very least, a fair chance a different result

would have occurred?

I do not need to decide the ineffective-assistance-of-counsel issue,

because I would reverse the sentence in this case as a result of the

manifest errors in the analysis and remand the case for a new hearing

consistent with the substance of this opinion. But I wish to make it very

clear that we judges should expect, and our system of justice should

demand, zealous and tenacious advocacy from counsel at a resentencing

hearing. Zealous advocacy demands that a lawyer representing a juvenile

defendant (1) be familiar with the underlying case; (2) have a good working

knowledge of the relevant law and child development concepts applicable

to imposition of mandatory adult sentences on juvenile offenders;

(3) conduct a thorough, independent investigation of background facts

that might support mitigation; and (4) present expert testimony in child

developmental psychology to put the mitigation evidence in its proper

context. What is plainly not acceptable is a brief review of the file and any
 81

PSI report, a passive approach to extensive leading questions of an

unqualified expert, a seat-of-the-pants cross-examination, a failure to call

an expert in child psychological development, and the failure to even file a

brief with the district court.

The majority rules, as a matter of law, that counsel was not

ineffective. I disagree. But at a minimum, it is hard to understand why

the matter should not be preserved for postconviction relief to see what

counsel did and did not do and what explanations, if any, might be

available for the very limited defense offered in the resentencing hearing.

The majority instead closes the door, preferring to leave the very

substantial questions regarding the use of the State’s expert and the lack

of appropriate expert response unexplored.

III. Conclusion.

I do not suggest, of course, that Majors should not be held

responsible for his crime. The question is whether the crime “is not as

morally reprehensible as that of an adult,” because “children are different.”

Graham, 560 U.S. at 68, 130 S. Ct. at 2026 (quoting Thompson v.

Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687, 2699 (1988) (plurality

opinion)); Miller, 567 U.S. at 480, 132 S. Ct. at 2469. And, of course, the

impact of our decision is not whether Majors will be released, but whether

he is eligible to be considered for release by the parole board.

For the reasons explained above, I would reverse the sentence in this

case and remand the case for a real sentencing hearing in which the

propositions that “[f]irst and foremost, the time when a seventeen-year-old

could seriously be considered to have adult-like culpability has passed”

and the “children are different” framework can be applied as required by

our caselaw.

Wiggins, J., joins this dissent.