State v. Russell, 54707

• Decision Date: 27 March 1974
• Docket Number: No. 54707,54707
• Citation: 216 N.W.2d 355
• Parties: STATE of Iowa, Appellee, v. Arthur Richard RUSSELL, Appellant.
• Court: Iowa Supreme Court

Page 355

216 N.W.2d 355

STATE of Iowa, Appellee, v. Arthur Richard RUSSELL, Appellant.

No. 54707.

Supreme Court of Iowa.

March 27, 1974.

R. Fred Dumbaugh and Guy P. Booth, of Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., David E. Linquist, Asst. Atty. Gen., William G. Faches, Co. Atty., for appellee.

Submitted to MOORE, C.J., and MASON, LeGRAND, UHLENHOPP and REYNOLDSON, JJ.

MASON, Justice.

Arthur Richard Russell appeals from judgment following his conviction of the crime of robbery with aggravation in violation of section 711.2, The Code. He was charged by indictment with robbing a Cedar Rapids tavern while armed with a hand gun and with intent if resisted to kill or maim the barmaid.

The judgment and sentence provided defendant 'be imprisoned in the state penitentiary at Fort Madison, Iowa, for an indeterminate term not to exceed 25 years at hard labor. Said sentence is to run consecutively and not concurrently to the sentence now being served by defendant at the Iowa state penitentiary.' At the time of arrest defendant was on parole from a 25-year sentence for a 1965 conviction of robbery with aggravation.

After defining the crime of robbery in section 711.1, The Code, the legislature in section 711.2 provided the penalty for the aggravated offense in this manner:

'If such offender at the time of such robbery is armed with a dangerous weapon, with intent, if resisted, to kill or maim the person robbed; of if, being so armed, he wound or strike the person robbed; or if he has any confederate aiding or abetting him in such robbery, present and so armed, he shall be imprisoned in the penitentiary for a term of twenty-five years.'

Defendant does not seek a new trial or a reversal on the merits but asks this court to review the sentence imposed, vacate it and remand the matter to the trial court for resentencing. He relies upon one proposition for remand in which he contends the court erred in imposing a sentence that is cruel and unusual in violation of Amendment 8 of the United States Constitution and in violation of Article I, section 17 of the Iowa Constitution.

I. Defendant argues two brief points in seeking to sustain his position. At one point he argues he has been denied due process of law because section 711.2 is unconstitutionally vague. He maintains that in attempting to form a distinction between robbery with aggravation and robbery without aggravation the legislature 'foundered' upon constitutional vagueness, pointing out what he contends are so many vague and undefined phrases that the intent of the statute is lost.

This argument is coupled with the contention the statute is unconstitutional on its face since it provides cruel and unusual punishment by mandating an automatic term of 25 years upon conviction regardless of the circumstances of the crime; the arbitrary and capricious nature of section 711.2 removes all human element from sentencing and creates a punishment that is cruel and inhuman and in many instances clearly excessive thereby offending the constitutional provisions referred to earlier.

However, neither of the foregoing contentions as to the unconstitutionality of section 711.2 was raised in the trial court by demurrer, State v. Ramos, 260 Iowa 590, 597, 149 N.W.2d 862, 866, or in any other manner.

Ordinarily, matters not raised in the trial court, including constitutional questions, cannot be effectively asserted the first time on appeal. Furthermore, the constitutionality of a statute may not be considered on appeal where the question was not raised in the lower court. State v. Tokatlian, 203 N.W.2d 116, 120 (Iowa 1972), and authorities cited.

In State v. Wisniewski, 171 N.W.2d 882, 886--887 (Iowa 1969), we recognized as an exception to the general rule certain circumstances where a defendant may raise in this court for the first time a right arising after his trial. In the cited case we neither...