State of Iowa v. Charles James David Oliver , 2012 Iowa Sup. LEXIS 31 ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 10–1751
Filed March 30, 2012
STATE OF IOWA,
Appellee,
vs.
CHARLES JAMES DAVID OLIVER,
Appellant.
Appeal from the Iowa District Court for Guthrie County, Bradley
McCall, Judge.
Appellant claims sentence of life in prison without parole for a
second conviction of sexual abuse in the third degree is cruel and
unusual punishment in violation of the State and Federal Constitutions.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,
Assistant Attorney General, Mary L. Benton, County Attorney, and
Becky S. Goettsch, Assistant Attorney General, for appellee.
2
ZAGER, Justice.
Charles Oliver was convicted a second time of third-degree sexual
abuse in violation of Iowa Code sections 709.1 and 709.4(2)(b) (2009).
Oliver stipulated that he had a prior conviction for third-degree sexual
abuse under sections 709.1 and 709.4. Because of his prior conviction,
Oliver was guilty of a class “A” felony under the enhanced sentencing
provisions of section 902.14(1), and the district court accordingly
sentenced Oliver to life in prison without the possibility of parole. See
Iowa Code § 902.1 (requiring life without parole for class “A” felonies).
Oliver appealed, claiming the sentence of life without parole constituted
cruel and unusual punishment in violation of the Eighth Amendment of
the United States Constitution and article I, section 17 of the Iowa
Constitution. Oliver claims the statute is unconstitutional both on its
face and as applied to him. We retained jurisdiction, and we now affirm
Oliver’s sentence.
I. Factual Background and Procedural History.
On October 27, 2009, R.A., a thirteen-year-old girl, had an
argument with her mother. R.A. called a close family friend, Bryan
Conley, who lived nearby to ask if she could spend the night. R.A. did
not have contact with her father, and according to Conley, R.A., and her
mother, Conley was a father figure to R.A. Conley and R.A.’s mother
agreed that R.A. could spend the night at Conley’s residence. Conley’s
long-time friend, Charles Oliver, who was thirty-three years old at the
time, had been picked up earlier in the evening and spent the night at
the same house as Conley and R.A.1 The next morning, Conley and his
fiancée left the house, leaving Oliver and R.A. alone. While the two were
1Oliver and his wife were separated at the time, and Oliver had been removed
from his residence.
3
alone, R.A. told Oliver that she liked him. They went to the basement
and had sex on Conley’s bed one or two times. R.A. then fell asleep.
Prior to his leaving, Oliver gave R.A. his cell phone number.
Around December 17, R.A.’s mother went through R.A.’s cell-
phone records and found several text messages between R.A. and Oliver.
R.A’s mother confronted Oliver about these calls and messages and
Oliver said, “I’m just her friend like Bryan [Conley].” R.A.’s mother
reminded Oliver that R.A. was thirteen and he was thirty-three. Shortly
thereafter, R.A. told her mother about having sex with Oliver. R.A.’s
mother then called the West Des Moines Police Department and reported
that Oliver was attempting to contact R.A. and may have sexually abused
her.
Oliver was in the Polk County jail on an unrelated charge on
January 8, 2010. While there, Oliver’s wife confronted him with the
voicemails R.A. had left for Oliver on his cell phone. During this
telephone conversation, Oliver admitted having sex with R.A.2 On April
8, a warrant was issued for Oliver’s arrest, and he was placed in the
Guthrie County jail.
Oliver was charged by trial information with two counts of third-
degree sexual abuse in violation of Iowa Code sections 709.1(3) and
709.4(2)(b). The State subsequently dismissed one count of the
indictment. Trial commenced on September 8. At trial, Oliver denied
having sex with R.A. On September 10, 2010, the jury found Oliver
guilty of sexual abuse in the third degree. Following the guilty verdict,
Oliver stipulated that he had a prior conviction for third-degree sexual
2Oliver later told another inmate that he had consensual sex with a thirteen-
year-old and that he did not understand why he would be sentenced to life without
parole for that offense.
4
abuse in 2000. Based upon this admission, the court entered its
judgment order finding Oliver guilty of the enhanced class “A” felony
under section 902.14.
The sentencing hearing was conducted on October 18. According
to the presentence investigation report (PSI), Oliver claimed that his prior
conviction was for consensual sex with a fifteen-year-old victim.
However, the record reflects that the victim in the first case was fourteen,
and Oliver’s attorney stated this at sentencing. At the time of this
conviction, Oliver would have been twenty-four years of age. Oliver
claimed that the earlier victim had a fake ID and that he was residing
with her. Oliver’s PSI also revealed an extensive criminal history in
addition to the sexual abuse convictions, including convictions for theft,
burglary, terrorism, supplying alcohol to a minor, criminal mischief,
driving while barred, domestic abuse assault, OWI first offense,
harassment of a public officer, and violation of the sex offender residency
law. In the PSI, Oliver was entitled to provide his version of events.
According to Oliver, “the punishment really should be shared. Everyone
knows right from wrong.”
At sentencing, the State made a record to support its contention
that life without parole was an appropriate sentence for Oliver and was
not cruel and unusual punishment. The State pointed out Oliver’s
substantial prior criminal record, his failure to successfully complete his
probation resulting in revocation and imprisonment, and his failure to
complete court-ordered sex-offender treatment. As part of the sentencing
record, R.A. and her mother gave victim impact statements. R.A. noted
she had been in residential treatment for eight months as a result of the
incident and was continuing in therapy. She stated that Oliver molested
her and made her believe he loved her. She stated, “I was a 13-year–old
5
little girl and he took my life away . . . .” R.A.’s mother also provided an
impact statement expressing how this had affected R.A.
At sentencing, Oliver’s attorney minimized the offenses in the
record and claimed life without parole was “completely out of proportion”
to Oliver’s offense based on the facts of this case and his record. He
argued the statute was designed “to capture sexual predators who are
constantly preying on children or rapists who can’t stop raping.” During
his allocution, Oliver stated that he did not think life in prison was
appropriate because he “didn’t put a gun to anyone’s head.” The district
court sentenced Oliver to life without parole pursuant to section 902.14.
Oliver appealed.
On appeal, Oliver makes both a facial and as-applied challenge to
his sentence. He claims the sentence constitutes cruel and unusual
punishment in violation of the Eighth Amendment to the United States
Constitution and article I, section 17 of the Iowa Constitution.
II. Standard of Review and Preservation of Error.
Oliver claims his sentence violates the State and Federal
Constitutions and is therefore illegal. We have held that “[a] defendant
may challenge an illegal sentence at any time.” State v. Bruegger, 773
N.W.2d 862, 869 (Iowa 2009); see also Iowa R. Crim. P. 2.24(5)(a).
Regarding our standard of review, “[t]his court reviews constitutional
claims de novo.” Bruegger, 773 N.W.2d at 869.
Under section 902.14(1), “[a] person commits a class ‘A’ felony if
the person commits a second or subsequent offense involving any
combination of” second-degree sexual abuse, third-degree sexual abuse,
or lascivious acts with a child. Iowa Code § 902.14(1) A class “A” felon
faces a life sentence without the possibility of parole “unless the governor
commutes the sentence to a term of years.” Id. § 902.1. Oliver claims
6
that section 902.14 is unconstitutional on its face and as applied to him.
Though Oliver cites to both the Eighth Amendment to the United States
Constitution and article I, section 17 of the Iowa Constitution, he
explicitly limits his challenge to the Iowa Constitution, claiming that the
Federal Constitution does not afford any additional protection. See
Bruegger, 773 N.W.2d at 886 n.9. However, since Bruegger was decided,
the United States Supreme Court decided Graham v. Florida, ___ U.S.,
___, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), a case which sheds new
light on the federal framework for the cruel and unusual punishment
analysis. In light of the recently clarified framework, we will analyze
Oliver’s claim under both the state and federal constitutional provisions
that prohibit cruel and unusual punishment.
III. The Current State of Federal Cruel and Unusual
Punishment Jurisprudence.
It is important to clarify the terminology of cruel and unusual
punishment jurisprudence. Following Graham, unlike other areas of
constitutional law, the federal lexicon for Eighth Amendment analysis no
longer includes the terms “facial challenge” and “as-applied challenge.”
Instead, the defendant must challenge his sentence under the
“categorical” approach or make a “gross proportionality challenge to [the]
particular defendant’s sentence.” See Graham, ___ U.S. at ___, 130 S. Ct.
at 2022, 176 L. Ed. 2d at 837.
Oliver claims section 902.14 is “unconstitutional on its face.” To
support this claim, Oliver proceeds through a three-step analysis. Step
one requires us to compare the severity of the punishment to the gravity
of the crime to determine if the sentence leads to an inference of gross
disproportionality. Bruegger, 773 N.W.2d at 873. If this threshold step
is satisfied, steps two and three require the court to engage in an
7
intrajurisdictional and interjurisdictional analysis to determine whether
the sentence is in fact grossly disproportionate and therefore a violation
of the Eighth Amendment. See Ewing v. California, 538 U.S. 11, 22, 30,
123 S. Ct. 1179, 1186, 1190, 155 L. Ed. 2d 108, 118, 123 (2003);
Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S. Ct. 2680, 2707, 115 L.
Ed. 2d 836, 871 (1991) (Kennedy, J., concurring in part and concurring
in judgment) (“A better reading of our cases leads to the conclusion that
intrajurisdictional and interjurisdictional analyses are appropriate only
in the rare case in which a threshold comparison of the crime committed
and the sentence imposed leads to an inference of gross
disproportionality.”). In Graham, the Supreme Court noted that “[t]he
approach in cases such as Harmelin and Ewing is suited for considering
a gross proportionality challenge to a particular defendant’s sentence
. . . .” Graham, ___ U.S. at ___, 130 S. Ct. at 2022, 176 L. Ed. 2d at 837
(emphasis added). Thus, under the federal framework as clarified in
Graham, the three-step approach that Oliver seeks to use in his “facial”
challenge is actually the approach the United States Supreme Court
would take when evaluating a challenge to a particular defendant’s
sentence.
The Supreme Court took a different approach when reviewing a
“categorical” challenge to a term-of-years sentence. See id. The
approach taken in Graham was based on the framework and analysis
developed in Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171
L. Ed. 2d 525 (2008), Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183,
161 L. Ed. 2d 1 (2005), and Atkins v. Virginia, 536 U.S. 304, 122 S. Ct.
2242, 153 L. Ed. 2d 335 (2002). Id. at ___, 130 S. Ct. at 2022–23, 176 L.
Ed. 2d at 837. Under the categorical approach, the question is whether
a particular sentencing practice violates the Eighth Amendment. Id. The
8
Supreme Court looked to “objective indicia of national consensus”
regarding the use of a particular punishment, and also made an
independent analysis of constitutionality of the penalty based on “the
culpability of the offenders at issue in light of their crimes and
characteristics, along with the severity of the punishment in question.”
Id. at ___, 130 S. Ct. at 2023, 2026, 176 L. Ed. 2d at 837, 841.
As part of this independent analysis, the Supreme Court “also
considers whether the challenged sentencing practice serves legitimate
penological goals.” Id. at ___, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841.
The Supreme Court has used the “categorical” approach to determine
that a death sentence is always cruel and unusual punishment for the
crime of child rape when the victim did not die or death was not
intended. See Kennedy, 554 U.S. at 412, 128 S. Ct. at 2646, 171 L. Ed.
2d at 534. It has also determined that the death penalty is always cruel
and unusual punishment when imposed on minors or the mentally
challenged. See Roper, 543 U.S. at 578–79, 125 S. Ct. at 1200, 161 L.
Ed. 2d at 28; Atkins, 536 U.S. at 321, 122 S. Ct. at 2252, 153 L. Ed. 2d
at 350. In Graham, the Supreme Court applied the “categorical”
approach for the first time outside the context of the death penalty and
held that life without parole was an unconstitutional punishment for a
nonhomicide crime committed when the offender was under eighteen
years old. Graham, ___ U.S. at ___, 130 S. Ct. at 2022, 2034, 176 L. Ed.
2d at 837, 850. We will now proceed to Oliver’s categorical and
particularized challenges under the federal framework.
IV. Categorical Challenge Under the Federal Constitution.
We start by noting that Oliver has not technically made a
“categorical challenge” to his sentence. However, he has argued that life
without parole for a violation of section 902.14 is unconstitutional “on its
9
face.” We will treat this argument as a categorical challenge under the
federal framework. As noted above, categorical challenges to a particular
sentence can be based on either the characteristics of the crime or the
criminal. In this case, Oliver argues life without parole is an
unconstitutional penalty for a violation of section 902.14. Following the
Supreme Court’s guidance in Graham, we will first look for evidence of a
national consensus against the use of this penalty for this crime. See
Graham, ___ U.S. at ___, 130 S. Ct. at 2023, 176 L. Ed. 2d at 837. We
will then move on to an independent analysis where we consider the
culpability of the offenders, as well as the severity of their crimes, and
whether legitimate penological goals are served by the punishment of life
without parole. See id. at ___, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841.
A. A National Consensus. Section 902.14 makes a second or
subsequent conviction of second-degree sexual abuse, third-degree
sexual abuse or lascivious acts with a child a class “A” felony. The acts
that trigger section 902.14 are acts contained in sections 709.3, 709.4,
709.8(1), and 709.8(2). Iowa Code § 902.14. Violations of section 709.3
include acts of sexual abuse where the person displays a dangerous
weapon, or uses or threatens force creating a substantial risk of death or
serious injury to any person; the victim is under the age of twelve, or the
person is aided or abetted by others and the sex act is committed by
force or against the will of the victim. Id. § 709.3. Violations of section
709.4 include sex acts done by force or against the will of the victim, sex
acts between persons not cohabiting as husband and wife, where the
victim is suffering from a mental defect which precludes giving consent,
or the victim is twelve or thirteen years of age, or the victim is fourteen or
fifteen years of age and the perpetrator is either a member of the same
household, is related to the victim, exploits a position of authority over
10
the victim, or is four or more years older than the victim. Id. § 709.4(1–
2). Violations of section 709.4 also include performing a sex act on a
victim who is under the influence of a controlled substance and the
perpetrator knows or should have known the victim is incapable of
consent. Id. § 709.4(3). Violations of sections 709.8(1) and (2) involve
fondling a child or permitting or causing a child to fondle the perpetrator.
Id. § 709.8. The statute shows the legislature’s clear intent to deal with
repeat offenders more severely than first-time offenders.
“[T]he ‘clearest and most reliable objective evidence of
contemporary values is the legislation enacted by the country’s
legislatures.’ ” Graham, ___ U.S. at ___, 130 S. Ct. at 2023, 176 L. Ed. 2dat 837 (citation omitted). As Oliver’s brief demonstrates, Iowa is not an
outlier by punishing a second or subsequent conviction of statutory rape
with life in prison. Arizona, California, Connecticut, Delaware, Indiana,
Iowa, Louisiana, Minnesota, Missouri, New Hampshire, New Mexico, New
York, Oklahoma, Pennsylvania, Washington, and Wisconsin, as well as
the federal government, authorize life in prison for those convicted of
sexual offenses against children on two or three separate occasions,
though not all these states also remove the possibility of parole.3 As
3See 18 U.S.C. § 3559(e)(1) (2006) (mandating life in prison for a second sex
conviction where a minor was the victim, unless death is imposed); Ariz. Rev. Stat. Ann.
§ 13-705(C), (D), (I) (West, Westlaw through Feb. 16, 2012 of 2d Reg. Sess.) (mandating
life without parole for at least thirty-five years for a third or subsequent conviction); Cal.
Penal Code § 667.71(West, Westlaw through ch. 7 of 2012 Reg. Sess.) (imposing a
sentence of twenty-five years to life for a second or subsequent conviction); Conn. Gen.
Stat. Ann. §§ 53a-35b, 53a-40(b), (i) (West, Westlaw through 2012 Supp.) (imposing a
life sentence on persistent sexual offenders and defining a life sentence as a sixty-year
sentence); Del. Code Ann. tit. 11, § 4205A(a) (authorizing a sentence of twenty-five years
to life for a second offense or any offense where the victim is less then fourteen years of
age) (West, Westlaw through 78 Laws 2011, chs. 1–203); Ind. Code Ann. §§ 35-42-4-
3(a)(1), 35-50-2-8.5(b) (West, Westlaw through 2011 1st Reg. Sess.) (making sexual
intercourse with a person under age fourteen a class “A” felony if the perpetrator is over
twenty-one and authorizing the prosecution to seek a life without parole (LWOP)
sentence for a second such offence); Iowa Code § 902.14; La. Rev. Stat. Ann.
11
Oliver notes, in six states and the federal government, life without parole
(LWOP) is the exclusive penalty for certain repeat offenders.4 Three more
states authorize life without parole in certain circumstances.5
Connecticut allows for parole for certain repeat sex offenders, but only
after they have served sixty years.6 These statutes contain small
differences, such as the age of the victim or the age difference between
the victim and the offender. However, it is clear that Iowa is anything
§ 15:537(B) (West, Westlaw through 1st Ext. and Reg. Sess.) (mandating LWOP for a
third sexual offense); Minn. Stat. Ann. § 609.3455(4) (West, Westlaw through 2012 Reg.
Sess. through ch. 125) (mandating life with the possibility of parole if a person is
convicted of certain crimes and has two previous sex offenses); Mo. Ann. Stat.
§ 558.018(2)–(6) (West, Westlaw through 2011 1st Ext. Sess.) (mandating LWOP for a
second conviction of certain offenses and life with the possibility of parole for a second
conviction of other offenses); N.H. Rev. Stat. Ann. §§ 632-A:2, -A:10-a(III) (Westlaw
through ch. 272 of the 2011 Reg. Sess.) (mandating LWOP for those convicted of a third
offense); N.M. Stat. Ann. §§ 30-9-11, 31-18-25 (A), (B), (F) (West, Westlaw through 2011
legislation) (mandating life in prison for a second conviction of criminal sexual
penetration and not allowing parole if the victim of each offense is under thirteen); N.Y.
Penal Law § 70.07(4) (McKinney, Westlaw through L. 2011, chs. 1 to 604) (mandating a
sentence of twenty-five years to life for a second sexual assault against a child); Okla.
Stat. Ann. tit. 21, § 51.1a (West, Westlaw through ch. 385 of the 1st Reg. Sess. 2011)
(“Any person convicted of . . . sexual abuse of a child after having been convicted of . . .
sexual abuse of a child shall be sentenced to life without parole.”); 42 Pa. Cons. Stat.
Ann. §§ 9718.2(a)(2), 9795.1(a), (b) (West, Westlaw through 2011 Reg. Sess.) (mandating
life in prison for a third or subsequent conviction of a variety of sexual offenses); Wash.
Rev. Code Ann. §§ 9.94A.030, 9.94A.570, 9A.44.076 (West, Westlaw through 2011 2d
Spec. Sess & 2012 legislation effective through Mar. 6, 2012) (mandating LWOP for
persistent offenders and defining persistent offenders as those with a second conviction
for a variety of crimes); Wis. Stat. Ann. §§ 939.62(2m)(b)(2), (2m)(c), 948.02 (West,
Westlaw through 2011 Act 115) (mandating LWOP for persistent repeaters, which are
those are those convicted of a second serious child sex offense).
4See
18 U.S.C § 3559(e)(1); La. Rev. Stat. Ann. § 15:537(B); Minn. Stat. Ann.
§ 609.3455; N.H. Rev. Stat. Ann. §§ 632-A:2, -A:10-a(III); Okla. Stat. Ann. tit. 21,
§ 51.1a; Wash. Rev. Code Ann. §§ 9.94A.030, 9.94A.570, 9A.44.076; Wis. Stat. Ann.
§§ 939.62(2m)(b)(2), (2m)(c), 948.02.
5Ind.
Code Ann. § 35-50-2-8.5; Mo. Ann. Stat. § 558.018; N.M. Stat. Ann. §§ 30-
9-11, 31-18-25.
6See Conn. Gen. Stat. Ann. §§ 53a-35b, 53a-40(b), (i).
12
but an “outlier” when it comes to the severe treatment of repeat sexual
offenders who target children, use force, or prey on the incapacitated.7
The Supreme Court has also noted that “ ‘[t]here are measures of
consensus other than legislation[,]’ ” and, therefore, “[a]ctual sentencing
practices are an important part of the Court’s inquiry into consensus.”
Id. at ___, S. Ct. at 2023, 176 L. Ed. 2d at 838 (citation omitted). Neither
party has provided statistics of how many people are currently serving
life without parole sentences for repeat sex crimes. Given the diverse
language contained in these statutes, and the fact that triggering crimes
may be worded in slightly different ways, or require a different number of
convictions to trigger life without parole, such a survey is likely not a
feasible option. However, we can look to other states’ judicial review of
these statutes to inform our analysis of whether a national consensus
has formed that life without parole for repeat sex offenders is cruel and
unusual punishment.
Oliver points to only two cases that support his claim that Iowa
punishes the type of conduct he engaged in more harshly than other
jurisdictions. In State v. Davis, 79 P.3d 64 (Ariz. 2003) (en banc), the
Arizona Supreme Court reviewed a nineteen-year-old male’s sentence of
“fifty-two years in prison for having non-coerced sex with two post-
pubescent teenage girls.” Davis, 79 P. 3d at 66, 71. Davis was convicted
of four counts and received a thirteen-year sentence for each count,
which, by law, had to be served consecutively. Id. at 67. The court
found the sentence was grossly disproportionate to the crimes. Id. at 72,
75. However, the court noted the defendant did not have an adult
7As Oliver notes, many other states enhance the sentences of repeat offenders in
general, while not singling out repeat sex offenders. This further supports the idea that
there is not a national consensus against using enhanced punishment for recidivist sex
offenders.
13
criminal record and had not previously committed any crimes against
children. Id. at 72. The Arizona Supreme Court later noted that the
holding in Davis “rested on the ‘specific facts and circumstances of
Davis’s offenses.’ ” State v. Berger, 134 P.3d 378, 386 (Ariz. 2006) (en
banc) (quoting Davis, 79 P.3d at 74–75). In Berger, the defendant was
convicted of twenty counts of sexual exploitation of a minor for
possession of child pornography depicting a minor under the age of
fifteen. Id. at 379. At the time of his arrest, the defendant did not have a
criminal record. Id. at 387. Because the child was under age fifteen, the
offense was characterized as a dangerous offense against children, and
Berger’s sentences had to be served consecutively without any possibility
of parole. Id. at 379. The court rejected Berger’s cruel and unusual
punishment claims, refusing to consider the consecutive sentences in the
proportionality decision, as the court had done in Davis. Id. at 385. The
Berger decision limits Davis’s holding to the facts of that case, making
the holding more like an as-applied challenge, as opposed to a facial
challenge. Id. at 387. Oliver’s long criminal history, combined with his
past sexual crime against a child, make Davis clearly distinguishable.
Oliver also cites Bradshaw v. State, 671 S.E.2d 485 (Ga. 2008), as
the only decision to hold a recidivist sex offender sentence enhancement
was cruel and unusual. That case involved a statute that mandated a
life sentence after a second conviction for failure to register as a sex
offender. Bradshaw, 671 S.E.2d at 487. Georgia was the only state to
impose such a harsh penalty. Id. at 491. Only two other states
authorized a penalty over ten years and many authorized only a fraction
of that amount. Id. at 491–92. The Georgia court noted its punishment
was the “clear outlier.” Id. at 492.
14
Aside from Davis and Bradshaw, Oliver has not provided this court
with any other examples of state supreme courts declaring enhanced
punishments for sexual offenders to be unconstitutional. By Oliver’s
own admission, Bradshaw is the only case to declare an enhanced
punishment for a recidivist to be cruel and unusual. The state and
federal courts have both reviewed a Washington statute that is nearly
identical to Iowa’s. Washington’s statute imposes LWOP under a “two
strikes” law that is similar to section 902.14. See Wash. Rev. Code Ann.
§§ 9.94A.030(37)(b), 9.94A.570, 9A.44.076.8 In State v. Gimarelli, 20
P.3d 430 (Wash. Ct. App. 2001), the Washington Court of Appeals upheld
Washington’s two-strikes law where the defendant’s first conviction was
for forcible rape of an adult and his second offense was attempted child
molestation in the first degree. Gimarelli, 20 P.3d at 436. The victim was
an eleven-year-old girl. Id. The court noted, “The Legislature has a right
to discourage such behavior and protect the public from such offenders.”
Id.
On de novo review, the Ninth Circuit also found the two strikes law
was constitutional. Norris v. Morgan, 622 F.3d 1276, 1279 (9th Cir.
2010), cert. denied, 131 S. Ct. 1557 (2011). In Norris, the defendant was
sentenced to life without parole for a conviction of first-degree child
molestation. Norris, 622 F.3d at 1279. Because he was convicted of
child molestation ten years earlier, Washington law mandated a sentence
8Under Washington law, a person is guilty of second degree child rape if “the
person has sexual intercourse with another who is at least twelve years old but less
than fourteen years old and not married to the perpetrator and the perpetrator is at
least thirty-six months older than the victim.” Wash. Rev. Code. Ann. § 9A.44.076(1).
Two convictions of second-degree child rape makes one a “persistent offender.” Id.
§ 9.94A.030(37)(b). A persistent offender receives a life sentence without the possibility
of parole. Id. § 9.94A.570.
15
of life without parole. Id. The Ninth Circuit discussed the Washington
Court of Appeals’ interjurisdictional analysis which concluded that
“[m]ost states that have ‘two strikes’ laws require sex
offenses with some degree of penetration and infliction of
serious bodily harm.” In addition, according to the state
appellate court, only “[a] small[] number of states would
impose a sentence of life in prison without parole for a
second offense after a similar prior offense. For example,
Georgia, Montana, New Mexico, South Carolina, and
Wisconsin all have two strikes laws for some types of sexual
offenses.”
Id. at 1284 (quoting State v. Norris, 116 Wash. App. 1006, 2003 WL
827647, at *3 (2003)). The Washington Court of Appeals went on to note
that this factor alone was not dispositive because the intrajurisdictional
analysis revealed this type of sentence was imposed for other crimes in
Washington. Id. at 1283. The court held the sentence was not grossly
disproportionate. Id. at 1284. Norris filed a petition for a writ of habeas
corpus. Id.
The Ninth Circuit was asked to determine whether upholding
Norris’s sentence was “ ‘contrary to, or involved an unreasonable
application of’ the proportionality principle” embodied in the Eighth
Amendment. Id. at 1287. Because the Washington court had only
analyzed the law under the Washington Constitution, the Ninth Circuit
engaged in a de novo review under the Eighth Amendment’s framework,
the same framework used in Iowa. See id. at 1283, 1289–90; see also
Bruegger, 773 N.W.2d at 883. The Ninth Circuit noted that even though
life without parole was an incredibly harsh sentence, it was “justified by
the gravity of [Norris’s] most recent offense and criminal history.” Norris,
622 F.3d at 1291. After noting the particular danger the legislature
sought to avoid by harshly punishing recidivist sex offenders, the court
concluded, stating
16
Norris’s sentence “reflects a rational legislative judgment,
entitled to deference,” that sex offenders who have
committed a serious or violent sex offense and who continue
to commit such sex offenses must be permanently
incapacitated. Norris’s thus is not “ ‘the rare case in which a
threshold comparison of the crime committed and the
sentences imposed leads to an inference of gross
disproportionality,’ ” and we need go no further.
Id. at 1296 (citations omitted).
The Wisconsin Court of Appeals upheld Wisconsin’s “two-strikes”
law for sexual offenders in 2004, stating simply “the legislature ‘could
reasonably determine that the need for incarceration without the
possibility of parole is especially acute when children, a particularly
vulnerable segment of the population, are the explicit targets of the
offenses.’ ” State v. Lewis, 690 N.W.2d 668, 673 (Wis. Ct. App. 2004)
(quoting State v. Radke, 657 N.W.2d 66, 75 (Wis. 2003)). Courts that
have found sentences unconstitutional when applied to minors still note
those same sentences would be appropriate when applied to adults. See,
e.g., Humphrey v. Wilson, 652 S.E.2d 501, 509 (Ga. 2007) (“[W]e must
acknowledge that Wilson’s crime does not rise to the level of culpability of
adults who prey on children and that, for the law to punish Wilson as it
would an adult, with [an] extraordinarily harsh punishment . . . appears
to be grossly disproportionate to his crime.”). In short, national
consensus seems to support, rather than oppose, the imposition of harsh
sentences, including life without parole, for recidivist sex offenders.
Oliver notes that the penalty of life without parole is reserved for
very few crimes in Iowa and is imposed only when an offender commits
first-degree murder, first-degree sexual abuse, first-degree kidnapping, a
violation of section 902.14, or a violation of section 124.401D.9 Under
9Though his argument is framed under the “intrajurisdictional” component of
the Harmelin analysis, the fact that life without parole is available for those who commit
17
section 124.401D, a person over age eighteen who is twice convicted of
manufacturing methamphetamine for delivery to a minor or twice
convicted of possessing methamphetamine with the intent to deliver it to
a minor is guilty of a class “A” felony and will be sentenced to life without
parole. See Iowa Code § 124.401D; id. § 902.1. By imposing life without
parole on those who twice violate one of the prohibitions found in section
124.401D, the legislature has made it clear that recidivists who
repeatedly prey on the vulnerability of children will receive Iowa’s
harshest penalty. Those who commit sexually based crimes also receive
lengthy sentences under Iowa law, as evidenced by the penalties imposed
for a single violation of sections 709.3, 709.4, or 709.8(1) or (2). In the
view of the legislature, those who commit sexual crimes also pose special
recidivist concerns. In response to those concerns, the legislature has
established a variety of safeguards that apply only to sexual offenders.
See Iowa Code §§ 229A.1–.16 (civil commitment of sexually violent
predators); id. §§ 692A.1–.16 (sex offender registration); id. §§ 903B.1–.10
(sex offender hormone treatment). These concerns over recidivist sex
offenders do not give the legislature free reign to punish sex offenders in
any way it sees fit, but they do help define “the evolving standards of
decency that mark the progress of a maturing society” which give
meaning to the Eighth Amendment. Trop v. Dulles, 356 U.S. 86, 101, 78
S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958). Iowa’s treatment of sex
offenders and those who repeatedly prey on children further convinces us
that there is not a consensus against this harsh penalty for the conduct
subject to section 902.14.
multiple less serious crimes informs our analysis of whether a consensus has been
reached that life without parole can only be imposed for the worst crimes.
18
B. The Offender’s Culpability and the Goals of Punishment. In
addition to considering whether there is a national consensus against the
punishment based on objective criteria, a reviewing court must also
make an independent judgment of whether the sentence violates the
constitution. Graham, ___ U.S. at ___, 130 S. Ct. at 2026, 176 L. Ed. 2dat 841. Part of this analysis must determine “whether the challenged
sentencing practice serves legitimate penological goals.” Id. “A sentence
lacking any legitimate penological justification is by its nature
disproportionate to the offense.” Id., ___ U.S. at ___, 130 S. Ct. at 2028,
176 L. Ed. 2d at 843. The United States Supreme Court has recognized
four legitimate penological justifications: retribution, deterrence,
incapacitation, and rehabilitation. Id. By making multiple violations of
sections 709.3, 709.4, and 709.8(1) and (2) a class “A” felony, punishable
only by life in prison without parole, the legislature has completely
rejected rehabilitation as a goal of punishment. See generally Julia Fong
Sheketoff, State Innovations in Noncapital Proportionality Doctrine, 85
N.Y.U. L. Rev. 2209, 2226 (2010) (“LWOP is the only noncapital sentence
that wholly rejects rehabilitation as a goal of punishment. The sentence
is unique in that, by definition, it requires that the offender die in
prison.”). However, “[c]riminal punishment can have different goals, and
choosing among them is within a legislature’s discretion.” Graham, ___
U.S. at ___, 130 S. Ct. at 2028, 176 L. Ed. 2d at 843. In this case, we are
reviewing a statute that increases punishment for recidivist sex
offenders. The Supreme Court has noted that “[r]ecidivism has long been
recognized as a legitimate basis for increased punishment.” Ewing, 538
U.S. at 25, 123 S. Ct. at 1188, 155 L. Ed. 2d at 120. Enhancing
punishment based on recidivism fulfills the legitimate goals of
19
incapacitation and deterrence. Id. at 26, 123 S. Ct. at 1187–88, 155
L. Ed. 2d at 121.
When examining retribution, the Supreme Court has stated that
“the heart of the retribution rationale is that a criminal sentence must be
directly related to the personal culpability of the criminal offender.”
Graham, ___ U.S. at ___, 130 S. Ct. at 2028, 176 L. Ed. 2d at 843
(citation and internal quotation marks omitted). The goal of retribution
is “restoration of the moral imbalance caused by the offense.” Id. In
order to fully examine the culpability of a person who is subject to
section 902.14, we feel it is also appropriate to analyze the scope of the
prior and triggering crimes, as well as the scope of the statute that
enhances the defendant’s sentence. Section 902.14, which enhanced
Oliver’s conviction to a class “A” felony, covers a relatively narrow set of
conduct. Only a second violation of section 709.3 (second-degree sexual
abuse), 709.4 (third-degree sexual abuse) or 709.8(1) and (2) (fondling a
child or causing a child to fondle the perpetrator) will trigger section
902.14. Unenhanced, each of these offenses is a class “B” or “C” felony.
Iowa Code §§ 709.3, .4, .8. Also, only a conviction or deferred judgment
will trigger section 902.14, not an adjudication of juvenile delinquency.
Id. § 902.14(2). The Supreme Court has noted that juveniles are less
culpable than adults. See Graham, ___ U.S. at ___, 130 S. Ct. at 2028,
176 L. Ed. 2d at 843–44. By limiting section 902.14 to convictions as
opposed to adjudications of delinquency, the legislature has attempted to
avoid enhancing the punishment of less culpable offenders. The scope of
section 902.14 weighs against finding Oliver’s sentence to be cruel and
unusual.
Since life without parole serves at least three legitimate goals, and
is supported by a national consensus, we find the Eighth Amendment
20
does not categorically ban the imposition of life without parole for
persons subject to the imposition of section 902.14.
V. The Challenge to This Particular Defendant’s Sentence
Under the State and Federal Constitutions.
Having determined the penalty mandated by section 902.14 does
not violate any categorical limitations imposed by the State or Federal
Constitutions, we now turn to Oliver’s claim that the penalty mandated
by that statute is so grossly disproportionate to the crimes he committed
that following the statute would, in this case, violate the State or Federal
Constitutions.
Oliver challenges his sentence by claiming it is grossly
disproportionate to his crime using the three-step analysis first
articulated in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d
637 (1983). See Bruegger, 773 N.W.2d at 873. The first step in this
analysis, sometimes referred to as the threshold test, requires a
reviewing court to determine whether a defendant’s sentence leads to an
inference of gross disproportionality. Id. “This preliminary test involves
a balancing of the gravity of the crime against the severity of the
sentence.” Id. If, and only if, the threshold test is satisfied, a court then
proceeds to steps two and three of the analysis. Id. These steps require
the court to engage in an intrajurisdictional analysis “comparing the
challenged sentence to sentences for other crimes within the
jurisdiction.” Id. Next, the court engages in an interjurisdictional
analysis, “comparing sentences in other jurisdictions for the same or
similar crimes.” Id.
At the time Bruegger was decided, we observed that the role of
individualized challenges under the Federal Constitution was unclear.
See id. at 874–76. We noted that in Rummel v. Estelle, 445 U.S. 263, 100
21
S. Ct. 1133, 63 L. Ed. 2d 382 (1980), and in Solem, the Supreme Court
favored an individualized challenge to a defendant’s sentence outside of
the capital punishment context. Id. at 875. However, we noted that in
Harmelin the plurality of the Court seemed to retreat from allowing
individualized challenges under the Eighth Amendment. Bruegger, 773
N.W.2d at 875 (citing Harmelin, 501 U.S. at 995, 111 S. Ct. at 2701–02,
115 L. Ed. 2d at 865). In a concurring opinion joined by two of the five
justices that comprised the plurality in Harmelin, Justice Kennedy
discussed the defendant’s challenge as “a comparison of his crime with
his sentence.” Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L.
Ed. 2d at 872 (Kennedy, J., concurring) (emphasis added). Though
Justice Kennedy stopped short of requiring the type of individualized
sentencing procedure that is required in capital cases, his concurrence
makes clear that the three-step analysis the Supreme Court used in
Solem requires a comparison between a defendant’s sentence and his
particular crime. Id. at 1006, 111 S. Ct. at 2707, 115 L. Ed. 2d at 872.
Justice Kennedy’s use of the three-part test on an individualized
basis outside of the capital punishment context gained support in the
Supreme Court’s next major Eighth Amendment decision. In Ewing, the
defendant claimed his sentence of twenty-five years to life in prison
under California’s three strikes law was grossly disproportionate to his
crime: the theft of three golf clubs. Id. at 18–20, 123 S. Ct. at 1183–85,
155 L. Ed. 2d at 115–16. Though, as in Harmelin, no single opinion
commanded a majority, the majority of the justices endorsed the fact-
specific analysis Justice Kennedy advocated for in Harmelin. Id. at 23–
24, 123 S. Ct. at 1187, 155 L. Ed. 2d at 119 (“The proportionality
principles in our cases distilled in Justice Kennedy’s concurrence [in
Harmelin] guide our application of the Eighth Amendment in [this
22
context].”); see also Bruegger, 773 N.W.2d at 876 (“[A] majority of the
Supreme Court in Ewing seems to approve of an as-applied challenge to
an otherwise valid statute under the Cruel and Unusual Punishment
Clause of the Eighth Amendment.”).
After describing the back-and-forth state of as-applied challenges
under the Federal Constitution, our Bruegger opinion then turned to the
possibility of an as-applied challenge under the Iowa Constitution.
Bruegger, 773 N.W.2d at 884. We noted “that many of our cases reject
individualized determinations in connection with cruel-and-unusual-
punishment challenges in a number of contexts.” Id. at 884. However,
we then stated that “we do not believe that a defendant can never
challenge a sentence as cruel and unusual as applied.” Id. We held
that, based on the unique factors of his case, Bruegger was allowed to
make an individualized showing that his sentence amounted to cruel and
unusual punishment under the Iowa Constitution. Id. Since “the
current record [was] simply inadequate to resolve the issue,” we
remanded the case to the district court “for a new sentencing hearing to
allow Bruegger and the State to present evidence as to the
constitutionality of [the statute] as applied to the defendant.” Id. at 886.
The next year, the United States Supreme Court decided Graham.
In Graham, the Supreme Court stated that the three-step analysis used
in Harmelin and Ewing is not suited for cases where a particular
sentencing practice is in question, which, in Graham, was the practice of
sentencing minors to life in prison for nonhomicide crimes. ___ U.S. at
___, 130 S. Ct. at 2022, 176 L. Ed. 2d at 837. Instead, the Court held
the three-step analysis set forth in Solem “is suited for considering a
23
gross proportionality challenge to a particular defendant’s sentence.”10
Id.
By labeling the three-step analysis as a challenge based on a
particular defendant’s sentence, the Supreme Court’s opinion in Graham
is now consistent with our holding in Bruegger. Therefore, under both
the State and Federal Constitutions, a defendant is allowed to challenge
his sentence by “emphasizing the specific facts of the case.” Bruegger,
773 N.W.2d at 884; see also Graham, ___ U.S. at __, 130 S. Ct. at 2022,
176 L. Ed. 2d at 837.
Having determined that a defendant may bring an as-applied
challenge under the Eighth Amendment to the United States
Constitution and article I, section 17 of the Iowa Constitution, we now
turn to the question of how such a challenge should proceed. Section
902.14 mandates the sentence of LWOP be imposed on Oliver. Our task
is to determine whether following that mandate in this case would
amount to cruel and unusual punishment.
Mandatory imposition of the death penalty has been held
unconstitutional by the United States Supreme Court. See Johnson v.
Texas, 509 U.S. 350, 360–61, 113 S. Ct. 2658, 2665, 125 L. Ed. 2d 290,
301 (1993). This is because “[c]apital punishment must be limited to
those offenders who commit ‘a narrow category of the most serious
crimes’ and whose extreme culpability makes them ‘the most deserving of
execution.’ ” Roper, 543 U.S at 568, 125 S. Ct. at 1194, 161 L. Ed. 2d at
21 (citation omitted). Thus, prior to sentencing an offender to death, a
10In his concurring opinion in Graham, Chief Justice Roberts went so far as to
argue that the categorical principle should not be expanded beyond the capital
punishment context and that all noncapital challenges should be based on the
particular facts of each case. See Graham, ___ U.S. at __, 130 S. Ct. at 2038–39, 176 L.
Ed. 2d at 853 (Roberts, C.J., concurring).
24
court must make an individualized determination that the offender is
worthy of capital punishment.
The Constitution does not require an individualized sentencing
proceeding outside the capital punishment context. Woodson v. North
Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944, 961
(1976) (noting that, outside the capital punishment context, “[t]he
prevailing practice of individualizing sentencing determinations generally
reflects simply enlightened policy rather than a constitutional
imperative”). Unlike mandatory death sentences, mandatory LWOP
sentences have been upheld.11 See, e.g., Harmelin, 501 U.S. at 961, 996,
111 S. Ct. at 2683, 2702, 115 L. Ed. 2d at 843, 865 (upholding a
mandatory LWOP sentence of possession of 672 grams of cocaine). Even
though the Eighth Amendment does not require individualized
sentencing in noncapital cases, a defendant may challenge a mandatory,
noncapital sentence as grossly disproportionate to the crime committed.
Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L. Ed. 2d at 872
(Kennedy, J, concurring). Bruegger is an example of such a challenge.
In Bruegger, we held the Iowa Constitution allowed an as-applied
challenge under the three-part test. We remanded Bruegger because
“[t]he Solem-type approach for evaluating Bruegger’s cruel-and-unusual-
punishment claim cannot be applied without a proper record.” 773
N.W.2d at 886. Creating a proper record would require giving the
defendant an opportunity to fully explain the facts and circumstances of
11The United States Supreme Court has gone so far as to suggest that a
mandatory LWOP sentence may be more likely to be constitutional than one that is left
to the discretion of the sentencing court. See, e.g., Harmelin, 501 U.S. at 1006, 111 S.
Ct. at 2708, 115 L. Ed. 2d at 872–73 (Kennedy, J., concurring) (“To set aside
petitioner’s mandatory sentence would require rejection not of the judgment of a single
jurist . . . but rather the collective wisdom of the . . . Legislature and, as a consequence,
the . . . citizenry.”).
25
his prior offense. Id. at 885. It would also involve giving the State a
chance to present evidence of the impact on the victim and her family,
the defendant’s lack of remorse, his inability to respond to rehabilitative
services, and the need to incapacitate the defendant. Id. at 886. In this
case, the court addressed the constitutionality of the sentence mandated
by section 902.14 prior to sentencing. At the sentencing hearing, both
Oliver and the State presented the type of evidence we felt was lacking in
Bruegger. Remand in this case is therefore unnecessary.
In Bruegger, we
appl[ied] the general principles as outlined by the United
States Supreme Court for addressing a cruel-and-unusual-
punishment challenge under the Iowa Constitution.
Even so, we do not necessarily apply the federal
standards in the same way as the United States Supreme
Court.
Id. at 883 (citations omitted). To this end, we reiterate “that review of
criminal sentences for ‘gross disproportionality’ under the Iowa
Constitution should not be a ‘toothless’ review and adopt a more
stringent review than would be available under the Federal Constitution.”
Id. Since Oliver has challenged his sentence under the Iowa
Constitution, we will apply our more stringent gross-disproportionality
review to the facts of his case.
We now turn to the threshold inquiry to determine whether Oliver’s
sentence of life without parole leads to an inference of gross
disproportionality to Oliver’s crime. If the sentence does not create an
inference of gross disproportionality, then “no further analysis is
necessary.” State v. Seering, 701 N.W.2d 655, 670 (Iowa 2005) (citation
and internal quotation marks omitted). Our principal task at this stage
26
is to “balanc[e] the gravity of the crime against the severity of the
sentence.” Bruegger, 773 N.W.2d at 873.
There are some general principles we must consider when
reviewing a defendant’s sentence to determine whether it is “grossly
disproportionate” to the crime committed. The first is that we owe
substantial deference to the penalties the legislature has established for
various crimes. As noted earlier, “[c]riminal punishment can have
different goals, and choosing among them is within a legislature’s
discretion.” Graham, ___ U.S. at ___, 130 S. Ct. at 2028, 176 L. Ed. 2d at
843; see also Bruegger, 773 N.W.2d at 872–73; Seering, 701 N.W.2d at
670; State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000). We give the
legislature deference because “[l]egislative judgments are generally
regarded as the most reliable objective indicators of community
standards for purposes of determining whether a punishment is cruel
and unusual.” See Bruegger, 773 N.W.2d at 873.
The second principle is that it is rare that a sentence will be so
grossly disproportionate to the crime as to satisfy the threshold inquiry
and warrant further review. State v. Musser, 721 N.W.2d 734, 749 (Iowa
2006) (citing State v. Lara, 580 N.W.2d 783, 785 (Iowa 1998)); see also
Cronkhite, 613 N.W.2d at 669. This is true even though our review is
more stringent than is required under the Federal Constitution. See
Bruegger, 773 N.W.2d at 883.
The third principle is that a recidivist offender is more culpable
and thus more deserving of a longer sentence than a first-time offender.
See Solem, 463 U.S. at 296, 103 S. Ct. at 3013, 77 L. Ed. 2d at 653 (“[A]
State is justified in punishing a recidivist more severely than it punishes
a first offender.”). Therefore, when determining the gravity of the
offender’s crime, a district court can consider the offender’s criminal
27
history. See, e.g., Ewing, 538 U.S. at 29, 123 S. Ct. at 1189–90, 155
L. Ed. 2d at 122 (“In weighing the gravity of Ewing’s offense, we must
place on the scales not only his current felony, but also his long history
of felony recidivism. Any other approach would fail to accord proper
deference to the policy judgments that find expression in the legislature’s
choice of sanctions.”); see also Bruegger, 773 N.W.2d at 874. Lengthy
sentences are more likely to be constitutional when imposed on offenders
with lengthy criminal histories. See Ewing, 538 U.S. at 29–30, 123 S. Ct.
1189–90, 155 L. Ed. 2d at 122–23.
Finally, we note that the unique features of a case can “converge to
generate a high risk of potential gross disproportionality.” Bruegger, 773
N.W.2d at 884. The unique factors at issue in Bruegger were “a broadly
framed crime, the permissible use of preteen adjudications as prior
convictions to enhance the crime, and a dramatic sentence enhancement
for repeat offenders.”12 Id. Thus, we must examine the unique
combination of the features in Oliver’s case as part of our threshold
determination regarding the inference of gross disproportionality.
With these general principles in mind, we now turn to Oliver’s
claim that section 902.14 imposes an unconstitutional penalty on him.
Oliver was sentenced to life without parole for two convictions of third-
degree sexual abuse. As we noted in Bruegger, third degree sexual abuse
includes what is commonly termed “statutory rape” and is a broadly
framed crime:
The crime of statutory rape covers a wide variety of
circumstances, from Romeo and Juliet relationships to much
more objectionable situations involving the luring of
12In Bruegger, these factors converged to convince us that the defendant was
entitled to bring an as-applied challenge to his sentence under the Iowa Constitution.
773 N.W.2d at 885. As noted above, it is now clear that such a challenge can be
brought, regardless of the presence or absence of these factors.
28
youngsters by older individuals using manipulative
techniques, positions of authority, threats of violence, and
other aggravating factors.
Id. at 884–85. While a sexual relationship between two preteen
children—which was Bruegger’s first offense—may resemble a “Romeo
and Juliet relationship,” Oliver’s first and present offenses are “much
more objectionable situations.” Id. While the only criminal aspect of the
sexual intercourse between R.A. and Oliver was their extreme age
difference, this case is not the type of circumstance that leads us to infer
that section 902.14 is grossly disproportionate to Oliver.
At the time of Oliver’s first offense, he was twenty-four years old,
and his victim was fourteen or fifteen years old. At the time of his
present offense, he was thirty-three years old and his victim was thirteen
years old. Conley, Oliver’s long-time friend, was a father figure to R.A.
R.A. was only at Conley’s home that evening because of difficulties in her
own home life. Oliver knew the nature of the relationship between R.A.
and Conley. According to R.A.’s testimony, Oliver told R.A. that he loved
her and was going to leave his wife. After the incident, Oliver continued
to contact R.A., at one point inviting her to come to his hotel room. In
R.A.’s own words at the sentencing hearing,
[B]ecause of this incident, I went to treatment for eight
months and I’m doing therapy at Children and Families of
Iowa . . . .
....
. . . [W]e had to move out of our own home. I went to
about four different schools. I was in residential treatment
and I would like you to know that this man molested me. He
made me believe that he loved me and then had sex with me
and then left. I trusted him. I was a thirteen-year-old little
girl and he took my life away . . . .
29
This is the type of exploitation section 709.4 was designed to prevent, not
conduct that was inadvertently caught by a broadly written statute. See
id. at 884.
In addition to analyzing the scope of the instant crime, we feel it is
also appropriate to analyze the scope of the statute that enhances the
defendant’s sentence. Like Bruegger, Oliver faces a lengthy sentence
after being convicted of the broadly framed crime of third-degree sexual
abuse. Id. However, Bruegger’s sentence was enhanced under section
901A.2, whereas Oliver’s enhancement is under section 902.14. Id. at
885. Section 901A.2(3) enhances the sentence of anyone convicted of a
“sexually predatory offense” that is a felony if that person has a prior
conviction for a “sexually predatory offense.” Section 901A.1(1) defines a
“sexually predatory offense” as any violation of chapter 709, the “C”
felonies of sexual exploitation of a minor, enticing a minor under the age
of thirteen away or pandering involving a minor, and any attempted
violation of any of those statutes. Adjudications of delinquency are
included in the definition of “prior convictions.” Iowa Code § 901A.1(2).
Section 902.14 covers a much narrower set of conduct. To trigger
this section, both the predicate and triggering offenses must be violations
of section 709.3 (second-degree sexual abuse), 709.4 (third-degree sexual
abuse) or 709.8(1) and (2) (fondling a child or causing a child to fondle
the perpetrator). Id. § 902.14(1). Each of these offenses is, on its own, a
class “B” or “C” felony. See id. §§ 709.3, .4, .8(1–2). Also, only a
conviction or deferred judgment will trigger section 902.14, not an
adjudication of juvenile delinquency. Compare id. § 902.14(2), with id.
§ 901A.1(2).
There are fewer predicate crimes that make a defendant eligible for
an enhanced punishment under section 902.14. Unlike section 901A.2,
30
which includes “D” felonies and serious and aggravated misdemeanors as
predicate offenses, the predicate offense under section 902.14 must be a
“B” or “C” felony. Compare id. § 901A.2, with § 902.14(1). Also, only
convictions and deferred judgments, as opposed to adjudications of
delinquency, trigger section 902.14. Section 902.14 is not as broadly
framed as 901A.2, and thus the scope of this statute generates less
potential for gross disproportionality than section 901A.2. See Bruegger,
773 N.W.2d at 884.
Another factor considered in Bruegger was the defendant’s “age as
a preteen when the predicate offense was committed.” Id. at 885. If
Oliver were a preteen when his predicate offense was committed, this
might contribute to an inference that life without parole was grossly
disproportionate to the crime. However, Oliver was first convicted of
third-degree sexual assault when he was twenty-four years old. He was
convicted again at age thirty-four. Unlike Bruegger, Oliver is not seeking
“to show that the consequences of his adolescent act become grossly
disproportional to his sentence for the adult crime.” Id. at 885. Oliver’s
sentence is not based on any crimes he committed in his teens. His
crimes were both committed after entering adulthood. Oliver’s age at the
time of his first offense does not support an inference that this sentence
is grossly disproportionate.
Oliver’s additional criminal history does not favor an inference of
gross disproportionality. According to his PSI, Oliver has nineteen prior
convictions in the last sixteen years. Oliver’s convictions for supplying
alcohol to a minor and a sex offender residency violation are particularly
troubling given his current conviction. Offenses relating to Oliver’s
status as a sex offender are not merely technicalities; the legislature has
imposed these requirements because of the “realistic concerns related to
31
offender recidivism” and the need to limit a recidivist’s opportunities to
reoffend. Seering, 701 N.W.2d at 670.
After his first conviction for third-degree sexual abuse, Oliver’s
probation was revoked because of his failure to comply with the
requirements of supervised probation. Records also indicate that he
failed to successfully complete his court-ordered sex offender treatment
programming. Oliver claimed at sentencing that he stopped participating
in the class because he had been sent back to prison and was therefore
“not required to finish the class.”
At sentencing, Oliver argued life without parole was an
inappropriate sentence because, as he stated,
I didn’t put a gun to anyone’s head. I didn’t kidnap
anybody. I didn’t rob a bank. I didn’t shoot anybody. I see
a lot of things in the paper about stuff like that and those
are people who are getting life sentences.
He also stated, “I’m sorry for what I put everybody through, including
myself and my children, [R.A.’s mother,] and her children. I mean my
friends, I put them through hell, other people.” When asked to write out
his version of events for the PSI, Oliver simply stated, “I just wanted to
say that everyone involved in this has suffered but the punishment does
not fit the crime. Plus the punishment really should be shared.
Everyone involved knows right from wrong.” Oliver’s unwillingness to
accept responsibility for his actions, or to accept that he has committed a
serious crime, further convinces us that Oliver’s individualized challenge
claiming gross disproportionality fails.
For sixteen years, Oliver has demonstrated an inability to conform
his conduct to the law. Some of these violations have been relatively
minor misdemeanors while others have been felonies. In particular,
Oliver has demonstrated an inability to conform his actions to society’s
32
expectations regarding minors, having been convicted of supplying
alcohol to a minor and twice convicted of statutory rape. By violating
residency requirements imposed on sex offenders, Oliver has also shown
he is unwilling to comply with the safeguards the legislature has
mandated to protect children from sexual criminals. Oliver has not
acknowledged his crime, nor its severity, claiming that “the punishment
really should be shared” and that “[e]veryone involved knows right from
wrong.” The nature of Oliver’s past and present crimes, the narrow
scope of section 902.14, and Oliver’s attitude towards his criminal
behavior lead us to conclude that section 902.14 does not impose a
grossly disproportionate penalty on Oliver.
After reviewing Oliver’s case and comparing the gravity of his crime
to the penalty mandated by the statute, we do not feel that section
902.14 imposes an unconstitutional punishment on Oliver. Oliver’s
sentence does not lead to an inference of gross disproportionality. Oliver
has committed multiple crimes as an adult and has an extensive
criminal history. He has shown a lack of remorse and an inability to be
rehabilitated. Based on the facts of his case, life without parole does not
strike us as a grossly disproportionate punishment to his crimes. Since
the penalty does not lead to an inference of gross disproportionality, we
need not proceed to steps two and three of the analysis, the
intrajurisdictional and interjurisdictional comparisons. Bruegger, 773
N.W.2d at 873.
VI. Disposition.
Oliver committed third-degree sexual abuse twice in a period of ten
years. The legislature has chosen to harshly punish those who
repeatedly engage in a variety of sex acts with children by imposing
Iowa’s most severe sentence, life without parole, on them. Our role is not
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to determine what the proper sentence for a crime should be. Instead,
we are to review the sentence mandated by the legislature to ensure that
it is within the protections ensured by the State and Federal
Constitutions. In this case, the legislature has chosen to permanently
confine those who have shown, on multiple occasions, that they are
unwilling to follow society’s restrictions regarding sexual contact between
children and adults. We see no constitutional infirmity in that decision.
Even if the penalty of life without parole is not categorically
prohibited for violations of section 902.14, Oliver claims the sentence
imposed is grossly disproportionate to his particular acts. Again, we
disagree. Oliver committed both of his crimes well beyond his eighteenth
birthday. He has committed other crimes that indicate an unwillingness
to comply with society’s rules regarding both minors and sexual
behavior. While Oliver claims that his crimes were not physically violent,
they are still emotionally, psychologically and physically damaging to the
child being exploited. The penalty of life without parole is within the
boundaries imposed upon the legislature’s discretion by the state and
federal constitutions, and the penalty is not cruel and unusual when
considered in light of the particular facts of Oliver’s case.
The sentence imposed by the district court is affirmed.
AFFIRMED.