836 N.W.2d 41 (Iowa 2013), 11-1080, State v. Null

Docket Nº:11-1080.
Citation:836 N.W.2d 41
Opinion Judge:APPEL, Justice.
Party Name:STATE of Iowa, Appellee, v. Denem Anthony NULL, Appellant.
Attorney:Mark C. Meyer, Cedar Rapids, for appellant. Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Gerald A. Vander Sanden, County Attorney, and Jason A. Burns, Assistant County Attorney, for appellee.
Judge Panel:All justices concur except MANSFIELD, J., who files a concurrence in part and dissent in part in which WATERMAN, J., joins; and ZAGER, J., who files a separate concurrence in part and dissent in part. MANSFIELD, Justice (concurring in part and dissenting in part). WATERMAN, J., joins this concurr...
Case Date:August 16, 2013
Court:Supreme Court of Iowa
 
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836 N.W.2d 41 (Iowa 2013)

STATE of Iowa, Appellee,

v.

Denem Anthony NULL, Appellant.

No. 11-1080.

Supreme Court of Iowa.

August 16, 2013

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         Mark C. Meyer, Cedar Rapids, for appellant.

          Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Gerald A. Vander Sanden, County Attorney, and Jason A. Burns, Assistant County Attorney, for appellee.

          APPEL, Justice.

         By statute, Denem Anthony Null is required to serve at least 52.5 years of his seventy-five-year aggregate sentence for second-degree murder and first-degree robbery. Because he was sixteen years and ten months old at the time of his offenses, he will not be eligible for parole until he attains the age of sixty-nine years and four months. Null argues his lengthy mandatory prison sentence is invalid under the cruel and unusual punishment provisions of the Iowa and United States Constitutions. In the alternative, Null argues the trial court abused its discretion in imposing consecutive sentences.

         Null also raises a number of challenges to his underlying convictions. According to Null, he was not properly informed of the elements of the offenses to which he pled guilty and, as a result, his guilty plea in this case is invalid. Null further argues his counsel provided ineffective assistance by failing to ensure he knowingly and voluntarily waived his right to a reverse-waiver hearing. Finally, Null asks us to preserve for postconviction review his claim that his counsel provided ineffective assistance by not consulting with Null prior to withdrawing his request for a transfer of jurisdiction to juvenile court.

         For the reasons stated below, we affirm Null's conviction, but vacate his sentence and remand the case to the district court for resentencing consistent with this opinion.

         I. Background Facts and Prior Proceedings.

         In 2010, the State charged Null with first-degree murder, a class " A" felony, see Iowa Code § 707.2 (2009), after he shot Kevin Bell with a handgun during the commission of a robbery at Bell's apartment. Null was sixteen years and ten months old at the time. Iowa Code section 232.8(1)( c ) required the State to charge Null as an adult in the district court. Null filed a motion to transfer jurisdiction to the juvenile court. Prior to the hearing, Null withdrew his motion and entered into a plea agreement with the State. Null agreed to plead guilty to second-degree murder and first-degree robbery in exchange for dismissal of the first-degree murder charge.

          Second-degree murder carries a maximum sentence of fifty years. Id. § 707.3. First-degree robbery carries a maximum sentence of twenty-five years. Id. § 711.2; id. § 902.9(2). Further, convictions for

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each crime are subject to mandatory minimum sentences of seventy percent. Id. § 902.12(1), (5). Because Null's alleged actions occurred prior to the Supreme Court's decision in Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), he would have received a mandatory sentence of life in prison without the possibility of parole if he had pled guilty to first-degree murder. See Iowa Code § 707.2; id. § 902.1. The parties further agreed that the State would be allowed to argue at sentencing that Null's sentences should run consecutively and that Null would be allowed to argue that they run concurrently. Thus, the reason Null took the plea deal is readily apparent— by taking it he gained the opportunity to be released from prison on parole, albeit not until he reached the age of sixty-nine years and four months if the court imposed consecutive sentences.

         Null was an only child with a difficult childhood. Null's presentence investigation report indicated he had been arrested four times, dating back to 2004 when he was just eleven years old, once each for assault and assault causing bodily injury and twice for disorderly conduct. Though he never received an adjudication of delinquency, he did successfully complete one informal adjustment, during which he was placed at Tanager Place, a residential facility providing specialized treatment to children with behavior and psychiatric disorders. The remainder of his charges was dismissed. The report also indicated Null dropped out of school in eleventh grade because he left his father's home. Prior to that time, however, Null had been expelled from school for altercations with other students and placed in behavior disorder classes, which he apparently completed prior to dropping out. The report also indicated Null did not know whether his parents were working.

         Null's father lived in Kansas City, and although he lived with his mother, she frequently sent him to live with his grandmother. He indicated that he did not like either of his parents because they " constantly put down" the other and that he was closest to his grandmother. Null's grandmother indicated Null's parents never treated each other or Null well during his childhood and even asserted that Null and his father were involved in a physical altercation at one point. Null's mother, who was diagnosed with bipolar disorder, but did not take medication, had a history of drug and alcohol abuse, criminal convictions, and violent behavior. Null indicated he did not get along well with his father because his father was " always talking down" his mother. Further, Null had been a child in need of assistance since 2006. He was subsequently placed in numerous shelters and treatment programs, but went on the run from most of them. In fact, Null was on the run at the time he committed the offenses leading to the sentence at issue here. Null stated he did not drink alcohol even though his mother taught him to " sip beer" as a baby. Null further stated that though he had used marijuana twice, he did not use illegal substances.

         According to the minutes of testimony, Null stole a .22-caliber pistol from a friend. At some point thereafter, Null went with his brother and cousin to Bell's apartment to steal a pound of marijuana. During the robbery, Null shot Bell in the head. When occupants of another room in the apartment appeared, Null and the others fled the scene.

          At Null's sentencing hearing, the court stated that it had no discretion in imposing the fifty-year sentence for second-degree murder or the twenty-five-year sentence for first-degree robbery, but that it did have discretion to determine whether the

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sentences should run concurrently or consecutively.

         The State took exception to the recommendation of the presentence investigation report.1 In recommending that Null receive consecutive sentences, the State directed the court to the presentence report. The State said,

He had a long history of offender interventions that are located on pages 6 and 7 of the presentence report. He had informal adjustments and placed at Foundation 2, Tanager Place, the Linn County Detention Center and just more than a dozen placements and intervention attempts prior to this case, Your Honor. In fact, he was on run from Tanager Place when he committed this murder.

In asking for a concurrent sentence, Null's counsel referenced the fact that Null was only sixteen years old at the time of the killing. He stated:

My client, Your Honor, at age 16 made a bad decision. And like many people that are age 16 they are not capable of making good decisions sometimes. They are unable to think about what if, what is beyond this immediate decision that I am making.

....

As the presentence investigation reports, this was a one-time occurrence. It's where a 16-year-old didn't ask what if and several families have been damaged by this tragedy.

...

If you look at the biographical information on Mr. Null, this was almost predetermined. His involvement with the court system was almost predetermined.

It is not an excuse, because many people have come from backgrounds such as this and have not found themselves in this situation.

Mr. Null did not have the mentoring, did not have the role models, did not have the upbringing that some of us are fortunate enough to have. He didn't have the time to learn how to look beyond his immediate actions to what might result from those actions.

          In sentencing Null, the district court indicated that because it had the benefit of sentencing Null's codefendants the week before, it had a frame of reference with which to evaluate Null's conduct for sentencing (each codefendant received twenty-five-year sentences and are eligible for parole after 17.5 years). The court stated that it had read the presentence investigation report and that there had been " significant juvenile court intervention" with Null dating back to early 2005. The court further found the argument that Null did not receive structure or mentoring did not carry a lot of weight because the State had attempted to place Null on numerous occasions and Null ran from them. The court also noted there had been a comment that Bell " came at" Null just prior to the shooting, which the court considered " a little bit of a minimization," but not a justification. Ultimately, the court ordered Null to serve his sentences consecutively, but indicated he would still have an opportunity to seek parole down the road. The court stated it had considered the nature and circumstances of the offenses, Null's history and

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characteristics, including his age and prior court interventions, and the recommendation of both counsel. The court concluded,

I find the sentence that I have imposed offers [Null] the maximum opportunity for rehabilitation, balanced against the interest of the community, not only protecting the community but also...

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