State v. August

• Citation: 589 N.W.2d 740
• Decision Date: 17 February 1999
• Docket Number: No. 98-282,98-282
• Parties: STATE of Iowa, Appellee, v. Jon Michael AUGUST, Appellant.
• Court: United States State Supreme Court of Iowa

Page 740

589 N.W.2d 740

STATE of Iowa, Appellee, v. Jon Michael AUGUST, Appellant.

No. 98-282.

Supreme Court of Iowa.

Feb. 17, 1999.

William L. Kutmus of Kutmus & Pennington, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and William A. Davis, County Attorney, for appellee.

Considered by McGIVERIN, C.J., and LAVORATO, SNELL, TERNUS, and CADY, JJ.

TERNUS, Justice.

The defendant, Jon Michael August, pled guilty to three forcible felonies and was given two consecutive, indeterminate twenty-five-year sentences and one concurrent, indeterminate ten-year sentence. He claims the consecutive sentences constitute cruel and unusual punishment in violation of the Eighth Amendment. See U.S. Const. amend. VIII. He also asserts the trial court abused its discretion in imposing consecutive sentences. Finding no constitutional violation and no abuse of discretion, we affirm.

I. Background Facts and Proceedings.

The following facts are shown in the record. Late on the evening of May 15, 1997, August, age eighteen, and three of his friends, James Schultz, also age eighteen, Laura Hochmuth, age sixteen, and Sabra Rogers, age fifteen, decided to flag down a car, spray the driver with mace, steal the car, and use it to go to Mexico. Shortly after midnight, the girls were picked up by the victim, Scott York, a pizza delivery boy on his way home from work. At the girls' request, York also picked up August and Schultz who were waiting further down the road.

Eventually, Hochmuth sprayed York with mace and thereafter Schultz began to drive York's vehicle. York was placed in the back seat between August and Hochmuth. Hochmuth took York's ATM card and, after forcing York to reveal his PIN number, used the card to obtain cash.

With York pleading to be released, the group drove from the Quad Cities to Omaha. While in Omaha, August went "car-hopping." He would enter unlocked vehicles and take whatever items of value he found. The money he obtained from these activities was used to buy gas.

Before leaving the Omaha area, the teenagers decided to kill York in a park. This plan was aborted, however, when the group was observed by a bystander. During these events, York continued to plead for his release to no avail. The group then headed towards Rogers' father's home in Oklahoma. On the way, they took turns guarding York when they stopped.

While in Kansas, Schultz, who was driving, pulled down a gravel road and stopped near a field. August, Schultz, and York left the vehicle and went into the field. While waiting in the car, Hochmuth could hear York pleading for his life, crying out, and moaning in pain. August and Schultz returned to the car without York. August had blood all over his boots, and one of the young men carried a black handkerchief covered in blood. The group left York for dead and continued on their way. York, however, miraculously survived his vicious beating and was found two days later.

The four teenagers eventually made their way to Mexico, where they contrived a story that they, along with York, whom they assumed was dead, had been victims of a kidnapping by a Mexican man named "Bob." They returned to the United States and told this story to the FBI. When confronted by the police with the actual events, Hochmuth, Schultz, and August admitted they had kidnapped York and that he had been beaten up and left for dead. There was considerable finger-pointing, however, as to who led the group in these activities; each participant claimed to have acted out of fear, simply doing what someone else in the group told him or her to do.

August was charged with first-degree kidnapping and two counts of robbery in the first degree. See Iowa Code §§ 710.1, 710.2, 711.1, 711.2 (1997). As part of a plea agreement that did not include sentencing recommendations, August pled guilty to second-degree kidnapping, first-degree robbery, and second-degree robbery. See id. §§ 710.1, 710.3, 711.1, 711.2, 711.3. The court sentenced August to serve a term not to exceed twenty-five years on the kidnapping conviction and a consecutive term not to exceed twenty-five years on the first-degree robbery conviction. August was sentenced to prison for a term not to exceed ten years on the second-degree robbery conviction, to run concurrently with the other sentences. August will have to serve at least forty-two and one-half years before he can be released. ¹

On appeal, August claims the length of these sentences constitutes cruel and unusual punishment in violation of the Eighth Amendment. We review this claim de novo. See State v. Hunter, 550 N.W.2d 460, 462 (Iowa 1996). August also contends that the sentencing court abused its discretion in ordering consecutive sentences on the second-degree kidnapping and first-degree robbery convictions. We consider the constitutional claim first.

II. Eighth Amendment.

A. Applicable law. The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishments." U.S. Const. amend. VIII. August claims we must apply the three-factor test set out in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), to determine whether his sentence violates the Eighth Amendment. Under this test,

a [trial] court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Solem, 463 U.S. at 292, 103 S.Ct. at 3011, 77 L.Ed.2d at 650. August also asks that we make an individualized assessment of the gravity of his offense. In other words, rather than considering the seriousness of second-degree kidnapping and first-degree robbery generically, he asks that we look at mitigating circumstances that lessen his individual culpability.

The State disagrees with August as to the appropriate analysis. The State claims that the Solem test is not applicable until a threshold assessment has been made that the challenged sentences are grossly disproportionate to the gravity of the crimes. The State also asserts that the crimes are viewed objectively in determining their seriousness. We think the State is correct on both counts.

As we recently observed in State v. Lara, 580 N.W.2d 783 (Iowa 1998), the Solem disproportionality test has been limited to " 'the rare case [in which] a threshold comparison of the crime committed to the sentence imposed leads to an inference of gross disproportionality.' " Lara, 580 N.W.2d at 785 (quoting 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)). ² Justice Kennedy's opinion in Harmelin sets out the principles relevant to a proportionality review:

[First,] that the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is "properly within the province of legislatures, not courts." ... [Second,] the Eighth Amendment does not mandate adoption of any one penological theory ... [and] state criminal systems have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and rehabilitation.... Third, marked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure.... [F]ourth[,] proportionality review ... should be informed by "objective factors to the maximum possible extent...." The most prominent objective factor is the type of punishment imposed.

Harmelin, 501 U.S. at 998-1000, 111 S.Ct. at 2703-05, 115 L.Ed.2d at 867-68 (Kennedy, J., concurring in part and concurring in judgment) (emphasis added). Justice Kennedy concluded: "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime." Id. at 1001, 111 S.Ct. at 2705, 115 L.Ed.2d at 869 (Kennedy, J., concurring in part and concurring in judgment) (quoting Solem, 463 U.S. at 288, 103 S.Ct. at 3001, 77 L.Ed.2d at 648).

The Supreme Court also considered in Harmelin the necessity for an individualized assessment of mitigating circumstances in determining whether the Eighth Amendment has been violated. ID. AT 994-95, 111 S.CT. AT 2701, 115 L.ED.2D AT 864-65. ³ The Court noted that although it had required such an individualized consideration in capital punishment cases, it had "drawn the line" there and saw "no basis for extending it further." Id. at 996, 111 S.Ct. at 2702, 115 L.Ed.2d at 865.

In summary, then, the test we will apply here is as follows. We will compare the sentences imposed upon August with the gravity of his crimes, viewed objectively. Only if the sentences appear grossly disproportionate will we then move to a consideration of the three-prong Solem test.

B. Application of law. August was sentenced to an indeterminate twenty-five-year term for the crime of second-degree kidnapping. ⁴ He received the same sentence for his conviction of robbery in the first degree. ⁵ August complains that because he is not eligible for parole, because he can only earn a fifteen percent reduction for good conduct time, and because the sentences are consecutive, the resulting forty-two and one-half years that he will have to serve in prison is cruel and unusual. Although we have held that consecutive sentences do not violate the Eighth Amendment and that the elimination of the possibility of parole does not transform a permissible punishment into one that is cruel and unusual, we have never considered whether the combination of two consecutive sentences, both of which must be served, constitutes cruel and unusual punishment in violation of the Eighth...