IN THE COURT OF APPEALS OF IOWA
No. 16-2174
Filed January 10, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENEM NULL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.
Denem Null appeals the sentences imposed on his convictions for crimes
he committed as a juvenile. AFFIRMED.
Mark C. Meyer, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Heard by Danilson, C.J., and Doyle and Mullins, JJ.
2
DOYLE, Judge.
Denem Null appeals following a second resentencing for crimes he
committed as a juvenile. He argues the district court failed to adequately state its
reasons for imposing consecutive sentences. He also claims Iowa Code section
902.4 (2009) is unconstitutional as applied to him.
I. Background Facts and Proceedings.
Null was sixteen years old when he shot and killed Kevin Bell during a
robbery. After he entered guilty pleas, district court sentenced Null to a fifty-year
term of incarceration for second-degree murder and a twenty-five-year term for
first-degree robbery. Each sentence carried a seventy-percent mandatory
minimum term. The district court ordered Null to serve the sentences
consecutively.
On direct appeal from his convictions and sentences, Null claimed the
mandatory minimum sentence he was required to serve—in excess of fifty years—
amounted to a de facto life sentence, thereby violating federal and state
constitutional protections against cruel and unusual punishment. See, e.g., Miller
v. Alabama, 567 U.S. 460, 479 (2012) (holding sentencing schemes that mandate
life in prison without possibility of parole for juvenile offenders who commit
homicide offenses unconstitutional under the Eighth Amendment). Our supreme
court held that juvenile offenders facing mandatory minimum prison terms of more
than fifty years are entitled to an individualized sentencing hearing to determine
their parole eligibility. State v. Null (Null I), 836 N.W.2d 41, 70-71 (Iowa 2013).
The court noted specific considerations the district court must contemplate in
sentencing these juvenile offenders, such as the difference in culpability between
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children and adults, their increased ability to change, and that lengthy prison
sentences without the possibility of parole are only appropriate “in rare or
uncommon cases.” Id. at 74-75. The court vacated Null’s sentence and remanded
the case to the district court for individualized resentencing, ordering the court to
consider whether the imposition of consecutive sentences would result in a prison
term so lengthy it violates the Iowa Constitution’s protections against cruel and
unusual punishment. Id. at 76-77.
The district court held a resentencing hearing on remand. In its written
order, the court summarized the evidence presented at the resentencing hearing:
[Null] is currently 23 years old, but was 16 years, 10 months,
and 14 days old at the time he shot and killed Kevin Bell. [Null] had
a rough childhood. His parents were never married and his father
left when [Null] was four (4) years old. [Null] has two younger half-
siblings. [Null] was primarily raised by his mother, who has a history
of drug and alcohol abuse. [Null]’s mother also worked as a stripper
and prostitute. Throughout the course of his childhood, [Null]’s
mother brought several of her “boyfriends” into [Null]’s life. Many of
these boyfriends were physically abusive to [Null] and [Null]’s
mother. Both grandmothers described [Null]’s childhood as difficult
and characterized him as being torn between his mother and his
father. [Null] did spend periods of time in his father’s care. Several
Juvenile Court and DHS services were provided to [Null] throughout
his childhood. These interventions are thoroughly summarized in the
[presentence investigation report] and [Null]’s Addendum to
Sentencing Memorandum filed under seal. While in residential
treatment from January 2008 to January 2009, [Null] was sexually
abused by a female staff member.
[Null] presented evidence of a history of mental illness in his
family, including his own, mostly untreated, mental health issues.
[Null] did receive some mental health treatment at age five (5),
however, his mother would not allow him to take medication as
prescribed.
While incarcerated, [Null] has taken advantage of the
programs offered to him, including the completion of his GED. [Null]
is also taking college courses and has taken advantage of job
opportunities in prison. He has had some discipline problems during
his incarceration and transition from county jail to prison, but these
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incidents were minor. The Court also received evidence of [Null]’s
artistic talents.
[Null] testified at the resentencing hearing. In addition to
recounting the difficulties with his childhood and the circumstances
of his crimes, [Null] described how his incarceration and his
continued maturity have affected his attitude. Unlike his original
sentencing hearing, [Null] displayed remorse for his crime. He also
acknowledged he needs additional treatment and services, some of
which are not available to him in prison at this time due to the
structure and length of his prison sentence. [Null] also stated he is
not currently on any medication.
[Null]’s mitigation specialist, Ms. Wilson, gave several
opinions on how [Null]’s personal characteristics and the
circumstances of his life should reduce the amount of punishment
imposed by the Court. Ms. Wilson opined that instability in [Null]’s
life has made him more susceptible to negative influences. She also
opined that the circumstances of his youth have inhibited his ability
to succeed in life and that only now, through the structure of the
department of corrections, has [Null] been able to display his
potential. Ms. Wilson testified that [Null]’s early use of drugs,
specifically marijuana, negatively affected his cognitive abilities and
was extremely harmful to him. Ms. Wilson also pointed to the fact
that [Null] is of “mixed-race” and that this has caused him to have
“identity confusion.”
Analyzing the factors set out by the supreme court in Null I, the district court
determined that, although Null was a minor at the time he committed his crimes
and possessed the “immaturity and impetuosity” of the average adolescent male,
his juvenile disciplinary history led Null to have “a heightened sense of the risks
and consequences of his actions as compared to the average nearly 17-year-old
male.” The court then noted Null’s “difficult, tragic” home life created Null’s attitude
that he was “destined” to be a criminal and “was a significant contributing factor”
leading to the commission of his crimes. The court observed that Null’s “demeanor
and attitude were significantly less defeatist at the resentencing hearing.”
However, the court stated that nothing at the resentencing hearing changed its
perception “of the heinous nature of the crimes” Null committed or his significant
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role in the conduct. Despite his “poor track record as a juvenile and the heinous
nature” of his crimes, the court found Null “has the potential to be rehabilitated” if
provided “the right environment, support, and treatment,” and noted Null’s artistic
talent “can be fostered as part of treatment and rehabilitation.” The court then
resentenced Null to the same sentences—a fifty-year term of incarceration on the
murder conviction and a twenty-five-year term on the burglary conviction—but
found that imposing a mandatory minimum sentence of any kind was unwarranted.
The court also ordered the sentences run consecutively.
Null appealed the resentencing order, arguing imposition of the consecutive
sentences was an abuse of discretion and cruel and unusual punishment, in
violation of the Iowa Constitution. State v. Null (Null II), No. 15-0833, 2016 WL
4384614, at *1 (Iowa Ct. App. Aug. 17, 2016). This court rejected Null’s
arguments. Id. at *3 We recognized that, “although the court ordered consecutive
sentences, it also ordered Null not be subject to any minimum term before
becoming eligible for parole,” providing Null a meaningful opportunity to obtain
release and demonstrating that Null received an individual sentencing hearing as
is constitutionally required. See id.; Null I, 836 N.W.2d at 71. However, after Null
was resentenced, “our supreme court overruled precedent which allowed us to
affirm a district court’s decision to run sentences consecutively as part of an overall
sentencing plan.” Null II, 2016 WL 4384614, at *3 (citing State v. Hill, 878 N.W.2d
269, 275 (Iowa 2016)). Because the district court failed to provide an adequate
explanation for imposing consecutive sentences, we vacated that portion of Null’s
sentence and remanded to the district court to “determine whether the sentences
should run consecutive or concurrent and provide reasons for its decision.” Id.
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The district court held another resentencing hearing on remand. Null
presented additional evidence concerning the unavailability of some rehabilitative
options in prison. After considering that evidence and restating its findings from
its two prior sentencing orders, the court again imposed consecutive sentences.
Null then filed this, his third, appeal.
II. Standard of Review.
We apply one of three standards of review to a sentencing challenge,
depending on the nature of the challenge. See State v. Seats, 865 N.W.2d 545,
552 (Iowa 2015). We review a sentence that is within the statutory limits for an
abuse of discretion. See id. When the court imposes a sentence that is not
authorized by statute, our review is for correction of errors at law. See id. at 553.
We review challenges to the constitutionality of a sentence de novo. See id.
III. Discussion.
Null asserts two claims in this appeal: (1) the district court abused its
discretion in imposing consecutive sentences and (2) Iowa Code section 902.4 is
unconstitutional as applied to him.
A. Consecutive Sentences.
Null asserts the district court abused its discretion in imposing consecutive
sentences in two respects. First, he claims the facts of his case do not warrant
imposition of consecutive sentences. Second, he claims the district court failed to
consider the way his sentence would be implemented when it imposed consecutive
sentences.
The sole purpose for remand following this court’s decision in Null II was for
the trial court to “determine whether [Null’s] sentences should run consecutive or
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concurrent and provide reasons for its decision.” 2016 WL 4384614, at *3.
Following that resentencing hearing, the court quoted the reasons it provided for
imposing Null’s original sentence in 2011. The court then considered the new
evidence Null provided during the resentencing hearing and stated:
[N]one of what I hear today changes my assessment, my original
assessment and my original reasons for imposing consecutive
sentences. I feel that consecutive sentences are appropriate in this
case for all the reasons I stated . . . on June 10th of 2011, for all of
the reasons that are stated in the April 17, 2015 resentencing order,
and again, for the reasons that I said on the record back then and
state now, that the nature and circumstances of the offense and the
history and characteristics of the defendant, including his age, all the
Miller factors, his prior juvenile conduct that I referenced, the
recommendations that were in the presentence report originally, the
recommendations that I’ve heard from counsel here today and at
prior hearings, and . . . the offense conduct, all of that, and as well
as the opportunity and I think the ability for the defendant to be
rehabilitated, all that taken together warrants imposition of
consecutive sentences.
On appeal, Null complains that the court only provided “general
observations” and “cited nothing specific” justifying the imposition of consecutive
sentences. We disagree. The court imposed consecutive sentences for the same
reasons it had cited in determining terms of incarceration were appropriate. This
practice is permissible as long as the sentencing court explicitly states its reasons.
See Hill, 878 N.W.2d at 275. The district court’s reasoning is not rendered
insufficient by summarizing those reasons rather than restating them in great
detail; the court’s reasons need only be sufficiently detailed to allow us to review
the sentencing court’s exercise of its discretion. See State v. Thacker, 862 N.W.2d
402, 408 (Iowa 2015). The overall record here is sufficient to allow us to review
the court’s exercise of discretion.
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We then review the reasons the district court provided for imposing
consecutive sentences to determine whether the court abused its discretion. An
abuse of discretion will be found only if the district court’s ruling rests on clearly
untenable or unreasonable grounds. See Willard v. State, 893 N.W.2d 52, 58
(Iowa 2017). A ground or reason is untenable if it is based on an erroneous
application of law. See id. In imposing consecutive sentences, the court relied on
pertinent matters such as “the nature of the offense, the attending circumstances,
the defendant’s age, character, and propensities or chances for reform,” State v.
Johnson, 476 N.W.2d 330, 335 (Iowa 2015), along with the factors required for
individualized sentencing as set out in Null I, 836 N.W.2d at 76-77.
Null disagrees with the district court’s conclusions based on the facts of his
case and argues it failed to properly weigh the sentencing factors. However, his
disagreement with the sentences imposed does not equate to an abuse of
discretion. See State v. Pena, No. 15-0988, 2016 WL 1133807, at *1 (Iowa Ct.
App. Mar. 23, 2016) (“[M]ere disagreement with the sentence imposed, without
more, is insufficient to establish an abuse of discretion.”).
Null also asserts the district court failed to take into account the practical
effect the imposition of consecutive sentences would have in the amount of time
he serves. He testified that the Iowa Department of Corrections (IDOC) will only
provide him the treatment he needs for parole when he is within seven years of his
discharge date. He argues that even though the district court waived the
mandatory minimum sentences, he is only “theoretically eligible” for parole at the
present time while serving a “de facto” minimum sentence based on the IDOC’s
policies.
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Our supreme court has noted “that immediate eligibility for parole is not the
same as immediately coming before the parole board for review.” State v. Propps,
897 N.W.2d 91, 101 (Iowa 2017). Although the parole board must review the
status of individuals eligible for parole on an annual basis, “in our juvenile
sentencing cases, we have never required that release on parole be immediate.”
Id. Instead, in those cases where the sentencing court exercises its discretion to
determine a juvenile defendant should be eligible for parole, the juvenile defendant
“must be given a realistic and meaningful opportunity to demonstrate maturity and
rehabilitation.” Id. at 102-03. Null’s immediate eligibility for parole comports with
constitutional requirements:
Because an indeterminate sentence allows for immediate eligibility
for parole, a juvenile is able to demonstrate to the parole board
whether he or she appreciated the harm done and utilized the options
available for reform. If rehabilitation has not yet occurred, the parole
board may make the decision to continue incarceration until the
juvenile 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.
Id. at 102.
Because the district court provided adequate reasons for imposing
consecutive sentences and did not abuse its discretion in doing so, we reject Null’s
claims.
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B. Iowa Code section 902.4.
Null also argues the imposition of a one-year limit on when the court may
reconsider a juvenile offender’s felony sentence set forth in Iowa Code section
902.41 is unconstitutional as applied to the facts and circumstances of his case.
However, Null never raised this claim in the district. As a result, we will not
consider this claim for the first time on appeal. See State v. Derby, 800 N.W.2d
52, 60 (Iowa 2011) (stating issues not raised before the district court—even
constitutional issues—cannot be raised for the first time on appeal).
We affirm Null’s sentence.
AFFIRMED.
1
This section states in relevant part:
For a period of one year from the date when a person convicted of
a felony, other than a class “A” or class “B” felony, begins to serve a
sentence of confinement, the court, on its own motion or on the
recommendation of the director of the Iowa department of corrections, may
order the person to be returned to the court, at which time the court may
review its previous action and reaffirm it or substitute for it any sentence
permitted by law.
Iowa Code § 902.4.