Amended May 5, 2017 State of Iowa v. Daimonay Darice Richardson ( 2017 )

IN THE SUPREME COURT OF IOWA
No. 14–1174
Filed February 17, 2017
Amended May 5, 2017
STATE OF IOWA,
Appellee,
vs.
DAIMONAY DARICE RICHARDSON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, Mary E.
Chicchelly, Judge.
A juvenile convicted of second-degree murder seeks further review
of a court of appeals decision affirming the district court’s restitution
order. DECISION OF COURT OF APPEALS AND JUDGMENT AND
SENTENCE OF DISTRICT COURT AFFIRMED.
Mark C. Smith, State Appellate Defender, Rachel C. Regenold (until
withdrawal), then Theresa R. Wilson, Assistant Appellate Defender, for
appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant
Attorney General, and Jerry Vander Sanden, County Attorney, for
appellee.
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MANSFIELD, Justice.
After pleading guilty to second-degree murder, the defendant was
ordered to pay $150,000 in mandatory restitution to the estate of the
victim. See Iowa Code § 910.3B (2013). The defendant was fifteen years
old at the time of the offense. We are asked to decide whether Iowa law
authorized the sentencing court to consider the age of the defendant and
related circumstances before ordering this restitution. If not, we must
determine whether mandatory minimum restitution violates the
defendant’s rights under article I, section 17 of the Iowa Constitution.
For the reasons discussed herein, we conclude that a recent
change in Iowa sentencing law does not affect mandatory minimum
restitution under Iowa Code section 910.3B. We further conclude that
section 910.3B is not unconstitutional either as applied to all juvenile
homicide offenders or as applied to this defendant. Accordingly, we
affirm the judgment and sentence of the district court and the decision of
the court of appeals.
I. Background Facts and Proceedings.
On June 10, 2013, officers with the Cedar Rapids Police
Department were dispatched to an apartment complex after tenants and
maintenance supervisors noticed a foul odor and flies emanating from an
apartment. Inside the apartment, officers discovered a decomposing
body later identified as that of Ronald Kunkle. Kunkle had been stabbed
to death.
During the ensuing investigation, officers learned that the
defendant, fifteen-year-old Daimonay Richardson, and her nineteen-year-
old boyfriend D’Anthony Curd had used Kunkle’s electronic benefit
transfer (EBT) card to make purchases at a gas station on May 19.
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Richardson had been kicked out of her home a few months before 1 and
was residing in another apartment in the same complex. Richardson
had an arrangement with the tenant of that apartment in which she
traded babysitting services for permission to stay there and apparently
for alcohol and drugs. Curd also lived in the same apartment part of the
time.
On August 19, officers interviewed Richardson regarding Kunkle’s
death. Richardson eventually confessed that she helped Curd murder
Kunkle on or about May 18. According to Richardson, Curd had been
with Kunkle in Kunkle’s apartment that day and said that he saw Kunkle
with $2000 in cash. Curd then developed a plan for the two of them to
go back to Kunkle’s apartment, stab Kunkle to death, and take the
$2000. Curd said to Richardson, “[Y]ou’re going to have to stab him
first, that way if we get caught, you will get in trouble if you snitch on
us . . . .”
Curd grabbed two knives out of the butcher block, gave one to
Richardson, and they went back to Kunkle’s apartment. Richardson had
her knife in her front pocket; Curd had his in his back pocket.
Inside Kunkle’s apartment, Curd and Kunkle played beer pong for
about five minutes, at which point Curd signaled to Richardson to stab
Kunkle. She stabbed Kunkle once in the neck, and after that Curd
jumped on Kunkle and—in Richardson’s words—“started stabbing him
everywhere, literally, thigh, legs, stomach, shoulder . . . ,
everywhere . . . .” As Curd was stabbing Kunkle, Richardson also
stabbed Kunkle two more times. When Kunkle’s body was found, he had
1Richardson’s
mother and stepfather later testified that they were willing to keep
her in the home, but she chose not to abide by the rules of the household, rendering
her unwelcome in the family home.
4
approximately thirty-seven stab wounds, the great majority of them
inflicted by Curd. In a subsequent proffer, Richardson said that the
stabbing was entirely Curd’s plan and “would have never happened”
otherwise. However, she acknowledged that Curd did not force her to go
along with his plan.
Once Kunkle was dead, Richardson helped Curd move the body
and clean up the crime scene. Curd was unsuccessful in finding the
$2000 but retrieved Kunkle’s billfold which contained an EBT card. Both
Richardson and Curd then returned to the apartment where Richardson
had been staying. They took showers and changed their clothes.
Richardson continued to live in that apartment until she was arrested for
Kunkle’s murder months later.
Richardson was charged with first-degree murder. See Iowa Code
§ 707.2. Before trial, Richardson entered into a plea agreement with the
State. The agreement called for Richardson to give a proffer statement
and later to testify at Curd’s first-degree murder trial. If the State
concluded Richardson’s proffer testimony was truthful, she would be
permitted to plead guilty to aiding and abetting second-degree murder, a
class “B” felony in violation of Iowa Code section 703.1 and section
707.3. If the State concluded the proffer statement was not truthful,
there would be no plea agreement but the statement could not be used in
the future for any purpose, including impeachment.
Richardson’s proffer interview took place on February 5, 2014, in
the presence of both of her counsel. The next day, Richardson pled
guilty to second-degree murder pursuant to the plea agreement. There
was no agreement between the State and Richardson on sentence.
Richardson understood that the State would be seeking a fifty-year
sentence with a mandatory thirty-five years of incarceration. She was
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free to advocate for a much more lenient sentence. In the guilty plea
colloquy, Richardson admitted that she had actively participated with
Curd in stabbing Kunkle, that Kunkle died as a result of being stabbed,
and that she had acted with malice aforethought.
A sentencing hearing took place on May 28, May 30, and June 6.
The presentence investigation report recommended that Richardson be
sentenced to fifty years in prison. The sentencing hearing revealed that
Richardson had been raised by her mother as one of several siblings.
When Richardson was ten, the family moved from the Chicago area to
Iowa. At the age of thirteen, Richardson was raped. Richardson did not
tell anyone because she did not trust anyone and did not think they
would care.
Richardson’s grandmother, with whom Richardson was quite close,
passed away around the same time. Richardson began abusing
marijuana and alcohol. Richardson’s performance in school deteriorated,
and she had to repeat seventh grade. In 2012, Richardson became
increasingly involved with Curd, who was then eighteen and an older and
somewhat controlling figure in her life. Richardson’s mother and
stepfather tried unsuccessfully to keep Richardson away from Curd.
When Richardson was forced to leave the family home in the spring of
2013, she was homeless for a period of time before moving into the
apartment where she was living at the time of Kunkle’s murder.
At the sentencing hearing, Richardson showed considerable
remorse for Kunkle’s death. As the district court related,
When asked how she felt about the situation, she tearfully
replied, “I don’t feel like a human. I feel like…I deserve to be
down. I should have took his place. I should have stood
there and said no to him, but because I was so selfish I
stayed there. I caused all of this. And I can’t change it. I
can’t make him come back and as much as I want to I
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can’t…take the pain away. I can say I’m sorry but sorry
doesn’t -- sorry don’t change nothing.” Ms. Richardson went
on to testify that because of her actions, she wasn’t even
sure she wanted to ask for her freedom anymore. The Court
finds these statements to be genuine and insightful, showing
a great deal of remorse, not about being caught, but about
the life she took from Mr. Kunkle.
At the sentencing hearing, Richardson also presented expert
testimony from a forensic psychologist who opined that Richardson
would not likely have perpetrated the offense by herself and had been
subjected to numerous adverse developmental factors. These factors
included her age at the time of the offense, transgenerational family
dysfunction, residential transience, sexual assault, early teen onset of
alcohol and drug abuse, and victimization in a predatory relationship
with the codefendant. The psychologist concluded that Richardson had a
good potential for establishing a constructive, contributing adulthood
and a low likelihood of future serious violence.
The district court, in a lengthy July 18 sentencing decision,
determined that continued confinement of Richardson was warranted
but rejected a mandatory term of incarceration. 2 The court explained,
2The court made a record based on Richardson’s age at the time of the offense
and other Miller/Ragland factors. In State v. Ragland, we said that a sentencing court
“must consider” the following Miller factors when sentencing a juvenile to a possible
sentence of life without parole:
(1) the “chronological age” of the youth and the features of youth,
including “immaturity, impetuosity, and failure to appreciate risks and
consequences”; (2) the “family and home environment” that surrounded
the youth; (3) “the circumstances of the . . . offense, including the extent
of [the youth’s] participation in the conduct and the way familial and
peer pressures may have affected [the youth]”; (4) the “incompetencies
associated with youth—for example, [the youth’s] inability to deal with
police officers or prosecutors (including on a plea agreement) or [the
youth’s] incapacity to assist [the youth’s] own attorneys”; and (5) “the
possibility of rehabilitation.”
836 N.W.2d 107, 115 n.6 (Iowa 2013) (alterations in original) (quoting Miller v. Alabama,
567 U.S. ___, ___, 132 S. Ct. 2455, 2468, 183 L. Ed. 2d. 407, 423 (2012)). We
subsequently held that the rationale of Miller applies to all cases where a juvenile could
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[T]he Court believes that the programs, facilities and
personnel available, together with the structured
environment that would be provided within the Correctional
System, will more effectively lead to Ms. Richardson’s
rehabilitation in a way that will eventually lead to her safe
reentry into society. That said, the Court feels that an
indeterminate term of years herein is appropriate, without
any mandatory minimum term imposed. This will allow Ms.
Richardson to embrace the services and treatment offered,
and will allow her to prove herself to the parole board as time
progresses.
The court thus sentenced Richardson to an indeterminate term of
incarceration not to exceed fifty years with twenty-five years of the
sentence to be suspended. The court also ordered Richardson to pay
$150,000 in restitution to the estate of Ronald Kunkle “[p]ursuant to
Iowa Code section 910.3B.” Richardson did not raise any objection to
the $150,000 restitution award at the time of sentencing.
Nonetheless, on appeal, Richardson challenges only the $150,000
restitution award. Richardson contends the sentencing court had
discretion under recently enacted Iowa Code section 901.5(14) (2014) to
impose a lower amount of restitution and should have exercised that
discretion to reduce the award. Alternatively, Richardson maintains
section 910.3B, to the extent it mandates a $150,000 restitution award,
violates article I, section 17 of the Iowa Constitution both on its face as it
pertains to all juvenile offenders and as applied to the particular
circumstances of her case. Richardson argues that a recent decision
from the United States Supreme Court and subsequent decisions of our
court sustain her claim that her age and culpability are necessary factors
to consider in awarding restitution under the statute. See Miller v.
Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012); State
___________________________
be potentially sentenced to a mandatory minimum period of incarceration. See State v.
Lyle, 854 N.W.2d 378, 400–01 (Iowa 2014).
8
v. Lyle, 854 N.W.2d 378 (Iowa 2014); State v. Ragland, 836 N.W.2d 107
(Iowa 2013); State v. Pearson, 836 N.W.2d 88 (Iowa 2013); State v. Null,
836 N.W.2d 41 (Iowa 2013).
We transferred Richardson’s case to the court of appeals. Relying
on its opinion in a companion case, 3 that court concluded Iowa Code
section 901.5(14) does not authorize a lower restitution amount. The
court reasoned that “sentence,” as used in the statute, does not apply to
restitution or fines. The court also rejected Richardson’s facial challenge
to section 910.3B. The court noted that “[n]either Miller nor Iowa’s Miller
progeny mention restitution or fines.” Finally, the court rejected
Richardson’s as-applied challenge to her restitution order, finding the
restitution not constitutionally excessive because it bore a reasonable
relationship to the harm caused by the offense. On these grounds, the
court of appeals affirmed the district court’s restitution order.
We granted Richardson’s application for further review.
II. Standard of Review.
“We review ‘the trial court’s application of pertinent sentencing
statutes for corrections of error at law.’ ” State v. Calvin, 839 N.W.2d
181, 184 (Iowa 2013) (quoting State v. Hawk, 616 N.W.2d 527, 528 (Iowa
2000)). We review an allegedly unconstitutional sentence de novo. Lyle,
854 N.W.2d at 382.
III. Analysis.
A. Does Iowa Code Section 901.5(14) Apply to Restitution
Awards Under Section 910.3B? We must first determine whether Iowa
Code section 901.5(14) confers judicial discretion over what would
otherwise be a mandatory restitution award under section 910.3B.
3State v. Breeden, No. 14–1789, 2015 WL 8389964 (Iowa Ct. App. Dec. 9, 2015).
9
In 1997, the general assembly enacted legislation relating to
“restitution for death of victim.” See 1997 Iowa Acts ch. 125, § 11
(codified at Iowa Code § 910.3B). That law now provides in part,
In all criminal cases in which the offender is convicted of a
felony in which the act or acts committed by the offender
caused the death of another person, in addition to the
amount determined to be payable and ordered to be paid to a
victim for pecuniary damages, as defined under section
910.1, and determined under section 910.3, the court shall
also order the offender to pay at least one hundred fifty
thousand dollars in restitution to the victim’s estate . . . .
Iowa Code § 910.3B(1) (2017). 4
Interpreting this statute in State v. Klawonn, we held,
[T]he context of section 910.3B(1) clearly indicates the award
is mandatory once the offender’s felonious actions result in
the loss of human life. The use of the word “shall” in section
910.3B(1) was intended to create not merely the power to
impose, but rather the duty upon the sentencing court to
impose a restitution award payable to the estate of at least
$150,000.
609 N.W.2d 515, 522 (Iowa 2000).5
Prior to 2013, there was no question that juveniles whose cases
were transferred into district court and who were convicted of crimes as
adults were subject to the same restitution obligations as adults. See
Iowa Code § 910.2(1) (2011) (“In all criminal cases in which there is a
plea of guilty, verdict of guilty, or special verdict upon which a judgment
of conviction is rendered, the sentencing court shall order that
restitution be made by each offender to the victims of the offender’s
4All references to the Iowa Code are to the 2017 Code unless otherwise noted.
5In 2000, we said that we were “unable to find any state in the nation with a
similar statute for restitution.” State v. Izzolena, 609 N.W.2d 541, 550 (Iowa 2000). In
2009, Alabama enacted a law requiring mandatory minimum restitution of $50,000 for
certain types of murder. See Ala. Code § 15-18-68(b)(1) (Westlaw through Act 2016–485
of 2016 1st Special Sess.).
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criminal activities . . . .”); id. § 915.100(2)(a) (“In all criminal cases in
which there is a plea of guilty, verdict of guilty, or special verdict upon
which a judgment of conviction is rendered, the sentencing court shall
order that restitution be made by each offender to victims of the
offender’s criminal activities.”). Iowa law drew a distinction between
criminal cases, where restitution must be ordered, and juvenile
delinquency proceedings, where it may be ordered. Compare id.
§ 915.100(2)(a), with id. § 232.52(2)(a)(2), and id. § 915.100(2)(b).
However, in 2013, the legislature enacted new sentencing
legislation relating to juveniles. See 2013 Iowa Acts ch. 42, § 14 (codified
at Iowa Code § 901.5(14) (2014)). That law provides,
Notwithstanding any provision in section 907.3 or any other
provision of law prescribing a mandatory minimum sentence
for the offense, if the defendant, other than a child being
prosecuted as a youthful offender, is guilty of a public
offense other than a class “A” felony, and was under the age
of eighteen at the time the offense was committed, the court
may suspend the sentence in whole or in part, including any
mandatory minimum sentence, or with the consent of the
defendant, defer judgment or sentence, and place the
defendant on probation upon such conditions as the court
may require.
Iowa Code § 901.5(14).
When Richardson was sentenced below, the district court ordered
her to make restitution of $150,000 to Kunkle’s estate in accordance
with Iowa Code section 910.3B(1). Richardson did not raise the potential
applicability of the 2013 legislation at that time, nor did she object on
constitutional grounds to mandatory restitution under section 910.3B(1).
However, the rule of error preservation “is not ordinarily applicable to
void, illegal or procedurally defective sentences.” State v. Thomas, 520
N.W.2d 311, 313 (Iowa Ct. App. 1994).
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Richardson now argues on appeal that the district court failed to
recognize it had discretion conferred by Iowa Code section 901.5(14) to
reduce the amount of the restitution award. In Richardson’s view, the
phrase “mandatory minimum sentence” as used in section 901.5(14)
includes the minimum restitution required by section 910.3B(1). And,
according to Richardson, the phrase “suspend the sentence in whole or
in part” in section 901.5(14) provides sentencing judges with authority to
impose a lower restitution amount than section 910.3B(1) would
otherwise require. Richardson thus contends that the 2013 legislation
effectively amended section 910.3B(1) as to juvenile homicide offenders.
The State, on the other hand, maintains that “sentence” as used
throughout section 901.5(14) does not include restitution. Hence, the
State urges that the 2013 legislation had no effect on section 910.3B(1).
The fighting issue before us is largely the meaning of “sentence” as
used in Iowa Code section 901.5(14). Our first step in statutory
interpretation is to determine whether the language is ambiguous. Iowa
Ins. Inst. v. Core Grp. of Iowa Ass’n for Justice, 867 N.W.2d 58, 71–72
(Iowa 2015). If the language is unambiguous, our inquiry stops there.
State v. Starkey, 437 N.W.2d 573, 575 (Iowa 1989). “A statute is
ambiguous if reasonable minds differ or are uncertain as to the meaning
of the statute.” Rhoades v. State, 880 N.W.2d 431, 446 (Iowa 2016). “We
determine whether a statute is ambiguous or unambiguous by reading
the statute as a whole.” State v. DeSimone, 839 N.W.2d 660, 666 (Iowa
2013). “[T]he determination of whether a statute is ambiguous does not
necessarily rest on close analysis of a handful of words or a phrase
utilized by the legislature, but involves consideration of the language in
context.” Rhoades, 880 N.W.2d at 446.
12
The wording of section 901.5(14) itself offers limited guidance as to
whether “sentence” includes a restitution award. This provision does
authorize a court to suspend “the sentence” in whole or in part,
“including any mandatory minimum sentence.” Iowa Code § 901.5(14).
This provision also authorizes a court to “defer judgment or sentence”
and place the defendant on probation. Id.
Elsewhere in Iowa Code section 901.5, though, references to
“sentence” include fines but not restitution. For example, section
901.5(1) empowers the district court to “defer judgment and sentence” in
accordance with chapter 907, while section 901.5(3) authorizes the court
to “suspend the execution of the sentence” as provided in chapter 907.
See id. § 901.5(1), (3). Additionally, section 901.5(5) allows the court to
“defer the sentence” when authorized by section 907.3. See id.
§ 901.5(5). Section 907.3—referenced by these subsections—is the
section entitled, “Deferred judgment, deferred sentence, or suspended
sentence.” See id. § 907.3.
We long ago held restitution is mandatory even when the foregoing
sentencing options are exercised. See State v. Kluesner, 389 N.W.2d 370,
372–73 (Iowa 1986) (holding that restitution is mandatory even when the
sentencing options under section 907.3 are exercised). Because the
authority to defer judgment or sentence does not include the authority to
defer restitution, we have also held that an application for discretionary
review is the proper way to challenge a restitution order in a deferred
judgment case. State v. Stessman, 460 N.W.2d 461, 464 (Iowa 1990).
Hence, the word “sentence” as used in other parts of section 901.5 does
not include restitution.
We can draw other lessons from examining Iowa Code section
901.5 as a whole. The section introduces all of its numbered
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subsections—including section 901.5(14)—with the following clause: “At
the time fixed by the court for pronouncement of judgment and sentence,
the court shall act accordingly[.]” Iowa Code § 901.5. Section 901.5(14)
is simply the fourteenth in a list of numbered items following this
preamble. And as the preamble states, each item in the list is something
that, if ordered, shall be ordered at the time of “pronouncement of
judgment and sentence.” Id.
Restitution is not mentioned anywhere within the list. Instead,
another section in another chapter—i.e., section 910.3—covers the
process for ordering restitution. And in contrast to section 901.5’s
preamble, section 910.3 indicates that restitution may be ordered “[a]t
the time of sentencing or at a later date to be determined by the court.”
Id. § 910.3 (emphasis added). 6 This critical timing difference further
supports the proposition that section 901.5(14), like the rest of section
901.5, has no bearing on restitution and concerns nonrestitution matters
that must be ordered at the time of pronouncement of judgment and
sentence, not later.
In sum, “sentence” as used in Iowa Code sections 901.5(1),
901.5(3), and 901.5(5) excludes restitution. One can therefore
reasonably say that the same term appearing in section 901.5(14)—
which has similar references to suspending the sentence or deferring
judgment or sentence—does not include restitution, either. Going
further, section 901.5 matters must occur at the time of pronouncement
of judgment and sentence. Restitution determinations, on the other
6Even though the $150,000 award in homicide cases is mandatory, it is a
minimum, and a victim’s family might seek to claim more, necessitating a later hearing.
See Iowa Code § 910.3B(1).
14
hand, can occur later. This also supports a determination that section
901.5(14) does not address restitution.
Adding force to these arguments is certain language at the
beginning of Iowa Code section 901.5(14) itself. This language reads,
“Notwithstanding any provision in section 907.3 or any other provision of
law prescribing a mandatory minimum sentence for the offense . . . .” Id.
§ 901.5(14) (emphasis added). As we have already noted, the cross-
referenced provision, section 907.3, relates to deferred judgments,
deferred sentences, and suspended sentences. See id. § 907.3. It
identifies certain circumstances including forcible felonies where
incarceration is mandatory and the deferred and suspended options are
not available. But as discussed above, section 907.3 has no bearing on
restitution; that is a separate overriding requirement unaffected by
section 907.3. Thus, if one applies the canons of ejusdem generis and
noscitur a sociis, one would read “any other provision of law prescribing a
minimum sentence” to refer to similar kinds of provisions as section
907.3. See In re Estate of Sampson, 838 N.W.2d 663, 670 (Iowa 2013)
(discussing ejusdem generis); Mall Real Estate, L.L.C. v. City of Hamburg,
818 N.W.2d 190, 199 (Iowa 2012) (discussing noscitur a sociis). In that
event, section 901.5(14) would not apply to restitution.
Additionally, Iowa Code section 901.5(14) refers to “a mandatory
minimum sentence for the offense.” Iowa Code § 901.5(14) (emphasis
added). Yet the restitution under Iowa Code section 910.3B is not tied to
a particular offense or group of offenses. Rather, it requires an offense
(namely a felony) and that “the act or acts committed by the offender
caused the death of another person.” Iowa Code § 910.3B(1).
Nonetheless, it is true that the Iowa Code does not define
“sentence” anywhere. We have said that a sentence is “[t]he judgment
15
formally pronounced by the court or judge upon the
defendant . . . imposing the punishment to be inflicted.” Klouda v. Sixth
Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 261 (Iowa 2002)
(alteration in original) (quoting Sentence, Black’s Law Dictionary (6th ed.
1990)); see also 4 Charles E. Torcia, Wharton’s Criminal Procedure § 535,
at 424 (13th ed. 1992) (defining sentence as “the pronouncement by a
court of the penalty imposed upon the defendant after a judgment of
guilty”). As we discuss in the next part of our opinion, a restitution
award under section 910.3B is partly punitive. Therefore, depending on
the context, restitution could be considered part of the “sentence.”
We think we have said enough to demonstrate that reasonable
minds can differ as to whether “sentence” as used in section 901.5(14)
includes a restitution award. It would not be surprising that the
meaning of “sentence” depends on the context. We have said the same
thing repeatedly about the meaning of “conviction.” See, e.g., State v.
Deng Kon Tong, 805 N.W.2d 599, 601–02 (Iowa 2011); Daughenbaugh v.
State, 805 N.W.2d 591, 597, 599 (Iowa 2011). Because section 901.5(14)
is ambiguous, we must employ additional tools of statutory
interpretation to ascertain statutory meaning.
One possible tool is to examine how the phrase “mandatory
minimum sentence” is used elsewhere in the Iowa Code. Does it include
restitution in other contexts? Notably, Black’s Law Dictionary defines
“sentence” as “[t]he judgment that a court formally pronounces after
finding a criminal defendant guilty” or “the punishment imposed on a
criminal wrongdoer” but defines “minimum sentence” as “[t]he least
amount of time that a convicted criminal must serve in prison before
becoming eligible for parole.” Sentence, Black’s Law Dictionary (10th ed.
2014); Minimum Sentence, Black’s Law Dictionary; see State v. Hoyman,
16
863 N.W.2d 1, 11 (Iowa 2015) (citing Black’s Law Dictionary in
interpreting a criminal statute).
Other provisions of the Iowa Code use “mandatory minimum
sentence” to refer to a mandatory period of incarceration. See Iowa Code
§ 124.413 (section entitled “Mandatory minimum sentence”); id.
§ 232.45(14)(a) (cross-referencing section 124.413); id. § 462A.14(3)(a)
(“mandatory minimum sentence of incarceration”); id. § 901.5(7) (“The
court shall inform the defendant of the mandatory minimum sentence, if
one is applicable.”); id. § 901.10(2) (allowing reductions in the
“mandatory minimum sentence” for certain offenses if the defendant
pleads guilty or cooperates in the prosecution of other persons); id.
§ 903A.2(5) (addressing the interaction between earned time accrued by
inmates and “any mandatory minimum sentence”); id. § 903A.5(1)
(addressing the interaction between earned time and certain “mandatory
minimum sentence[s]”); id. § 904.902 (“An inmate serving a mandatory
minimum sentence of one year or more . . . .”); id. § 906.5(1)(a) (stating
that the board of parole does not need to annually review the status of a
person “serving a mandatory minimum sentence”); id. § 907.3(1)(a)(7) (“a
mandatory minimum sentence must be served or mandatory minimum
fine must be paid”); id. § 907.3(2)(a)(3) (“a mandatory minimum sentence
must be served or mandatory minimum fine must be paid”); id.
§ 907.3(3)(c) (“[a] mandatory minimum sentence of incarceration”); id.
§ 907.3(3)(f) (“[a] mandatory minimum sentence or fine imposed for a
violation of section 462A.14”).
Besides the foregoing provisions, we are aware of one other
instance where our Code uses the phrase “mandatory minimum
sentence.” This is section 907.3A, which relates to youthful offenders.
Until 2013, this section read in part as follows:
17
Notwithstanding any provision of the Code which prescribes
a mandatory minimum sentence for the offense committed
by the youthful offender, following transfer of the youthful
offender from the juvenile court back to the court having
jurisdiction over the criminal proceedings involving the
youthful offender, the court may continue the youthful
offender deferred sentence or enter a sentence, which may be
a suspended sentence.
Id. § 907.3A(3) (2013). Section 907.3A addressed what happened to a
“youthful offender” when he or she turned eighteen and was returned to
the jurisdiction of the district court. See State v. Iowa Dist. Ct., 616
N.W.2d 575, 580 (Iowa 2000) (discussing this section). A juvenile
charged with committing, say, a forcible felony when under the age of
sixteen could be waived to district court to be prosecuted as a “youthful
offender.” See id. If the juvenile were convicted in district court,
sentence would be deferred and supervision would be transferred back to
juvenile court. See id. Hence, section 907.3A described what would
occur if the juvenile were returned to the district court after aging out of
the juvenile system.
The same 2013 legislation that added Iowa Code section 901.5(14)
also amended section 907.3A on youthful offenders to read as follows:
Notwithstanding any provision of the Code which prescribes
a mandatory minimum sentence for the offense committed
by the youthful offender, following transfer of the youthful
offender from the juvenile court back to the court having
jurisdiction over the criminal proceedings involving the
youthful offender, the court shall order one of the following
sentencing options:
(1) Defer judgment and place the youthful offender on
probation, upon the consent of the youthful offender.
(2) Defer the sentence and place the youthful offender
on probation upon such terms and conditions as the court
may require.
(3) Suspend the sentence and place the youthful
offender on probation upon such terms and conditions as
the court may require.
18
(4) A term of confinement as prescribed by law for the
offense.
(5) Discharge the youthful offender from youthful
offender status and terminate the sentence.
Id. § 907.3A(3)(a) (2014); see 2013 Iowa Acts ch. 42, § 15. The 2013
legislation thus expanded the sentencing options available for the
youthful offender who turned eighteen, “[n]otwithstanding any provision
of the Code which prescribes a mandatory minimum sentence for the
offense committed by the youthful offender.” Iowa Code § 907.3A(3)(a).
But the options have to do with the offender’s liberty. That is why
“confinement” alone—not “confinement” and “restitution,” for example—
is listed as one of the options. In other words, “mandatory minimum
sentence” as used in the very next section of the 2013 legislation—i.e.,
section 15 rather than section 14—refers to incarceration because this
section describes four alternatives to incarceration and one
nonalternative.
It is logical to conclude the legislature intended “mandatory
minimum sentence,” when used in consecutive sections of the same
2013 law, to have the same meaning. “When the same term appears
multiple times in the same statute, it should have the same meaning
each time.” State v. Paye, 865 N.W.2d 1, 7 (Iowa 2015); see also Tiano v.
Palmer, 621 N.W.2d 420, 423 (Iowa 2001) (“When the same word or term
is used in different statutory sections that are similar in purpose, they
will be given a consistent meaning.”).
For all these reasons, we have decided that Iowa Code section
901.5(14) does not authorize the district court to modify a restitution
award otherwise required by section 910.3B(1). Restitution under
chapter 910 is mandatory, may be imposed later, and operates
independently from the section 901.5 sentencing options available to a
19
court. Because Iowa Code section 901.5(14) does not apply to restitution
under section 910.3B, the district court lacked statutory discretion to
reduce Richardson’s payment to Kunkle’s estate below $150,000. 7
B. Facial Challenge to Section 910.3B. We next turn to
Richardson’s legal challenge to the constitutionality of Iowa Code section
910.3B as it relates to all juvenile homicide offenders. She argues the
statute violates article I, section 17 of the Iowa Constitution to the extent
it imposes mandatory restitution on a juvenile homicide offender without
a court first considering the Miller/Ragland factors. Article I, section 17
provides in part that “excessive fines shall not be imposed, and cruel and
unusual punishment shall not be inflicted.” Iowa Const. art. I, § 17.
Richardson asserts a facial constitutional challenge under both clauses.
1. Cruel and unusual punishment challenge. We have not had the
opportunity to determine whether a mandatory restitution award
constitutes cruel and unusual punishment prohibited by article I, section
17 of the Iowa Constitution. In State v. Izzolena, we held that Iowa Code
section 910.3B did not on its face violate the Excessive Fines Clause or
the Due Process Clause of the United States or Iowa Constitutions. 609
N.W.2d 541, 551, 553 (Iowa 2000). However, that case did not involve a
challenge of unconstitutionality under the cruel and unusual
punishment clause. See id. at 546–47. Two years ago, in Lyle, we held
that “all mandatory minimum sentences of imprisonment for youthful
offenders are unconstitutional under the cruel and unusual punishment
clause in article I, section 17 of our constitution.” 854 N.W.2d at 400.
7We acknowledge that under the rule of lenity, criminal statutes are strictly
construed. See Hoyman, 863 N.W.2d at 18. Here, this rule of construction does not
overcome the other reasons we have detailed for construing Iowa Code section 901.5(14)
as not covering the topic of restitution.
20
Richardson asks us to extend this holding to mandatory minimum
restitution amounts.
We do not believe the cruel and unusual punishment clause is at
issue here. As we pointed out in Izzolena, the excessive fines clause
“limit[s] the government’s power to punish” through monetary exactions.
609 N.W.2d at 548. If the cruel and unusual punishment clause also
limited fines, the excessive fines clause would be duplicative and
unneeded. 8
In Eighth Amendment jurisprudence, the two constitutional
clauses are not interchangeable. See Alexander v. United States, 509
U.S. 544, 113 S. Ct. 2766, 125 L. Ed. 2d 441 (1993). In Alexander, the
petitioner challenged the forfeiture of his businesses and property as part
of a criminal proceeding. Id. at 546, 113 S. Ct. at 2769, 125 L. Ed. 2d at
447–48. He claimed the forfeiture violated the Eighth Amendment “either
as a ‘cruel and unusual punishment’ or as an ‘excessive fine.’ ” Id. at
558, 113 S. Ct. at 2775, 125 L. Ed. 2d at 455. However, the Court
distinguished the two claims, noting that the court of appeals had
incorrectly “lumped the two together.” Id. The Court reasoned,
Unlike the Cruel and Unusual Punishments Clause, which is
concerned with matters such as the duration or conditions of
confinement, “[t]he Excessive Fines Clause limits the
government’s power to extract payments, whether in cash or
8Richardson cites a 1799 Virginia case where the court struck down a joint fine
assessed against three defendants convicted of assault and battery. See Jones v.
Commonwealth, 5 Va. (1 Call) 555 (1799). According to Richardson, this case illustrates
that a disproportionate fine can violate both the excessive fines clause and the cruel and
unusual punishment clause. We believe Richardson’s reading of the Virginia case,
which she borrows from a law review article, is mistaken. Although the Virginia opinion
is a bit difficult for us to read today, because in nineteenth-century style it is a tag-team
of the views of three judges, no view is expressed therein that the joint fine specifically
violated the cruel and unusual punishment clause. One judge said it was an excessive
fine, id. at 556–57, another said it simply violated “the bill of rights” without specifying
the clause, id. at 557–59, and a third judge dissented, id. at 560.
 21
in kind, as punishment for some offense.” The in personam
criminal forfeiture at issue here is clearly a form of monetary
punishment no different, for Eighth Amendment purposes,
from a traditional “fine.” Accordingly, the forfeiture in this
case should be analyzed under the Excessive Fines Clause.
Id. at 558–59, 113 S. Ct. at 2775–76, 125 L. Ed. 2d at 455 (alteration in
original) (citations omitted) (quoting Austin v. United States, 509 U.S.
602, 609–10, 113 S. Ct. 2801, 2805–06, 125 L. Ed. 2d 488, 497 (1993)).
While we “jealously guard our authority to interpret the Iowa
Constitution independently,” In re J.C., 877 N.W.2d 447, 458 (Iowa
2016), we read article I, section 17 in the same dual fashion. The text of
article I, section 17—like that of the similarly worded Eighth
Amendment—observes a distinction between punishment of a physical
nature, such as confinement, and punitive financial measures.
Therefore, we do not believe that Iowa Code section 910.3B restitution
can amount to “cruel and unusual punishment.”
2. Excessive fines challenge. We thus turn to whether mandatory
$150,000 restitution as applied to a juvenile homicide offender violates
the excessive fines clause of article I, section 17. In Izzolena, as noted,
we rejected a facial challenge to Iowa Code section 910.3B brought by a
defendant who had been ordered to pay $150,000 in victim restitution
under section 910.3B following a conviction for unintentionally causing
the death of another by operating a motor vehicle in a reckless manner.
609 N.W.2d at 545, 551. We first determined that the restitution award
under section 910.3B has “several punitive elements” and therefore
should be considered a “fine” within the meaning of both the Eighth
Amendment and article I, section 17. Id. at 548–49. However, we held
the mandatory $150,000 award was not unconstitutionally “excessive.”
Id. at 551.
 22
In Izzolena we pointed out that the statute “applies only to
felonious acts resulting in death.” Id. at 550. The mandatory restitution
provided by the statute “could not be imposed in a case involving an
unintentional or negligent offender.” Id. We also recognized that the
statute “only applies to offenders who committed a crime which caused
the death of another human.” Id. “The seriousness of this harm, in the
final analysis, is unmatched in the broad spectrum of crimes.” Id. We
further observed that other criminal laws in Iowa authorized “enormous
fines” which “help[ed] place the penalty imposed by section 910.3B in
context.” Id.; see also State v. Di Paglia, 247 Iowa 79, 85–86, 71 N.W.2d
601, 604–05 (1955) (finding that a fine of up to $10,000 for bribery in
athletic contests—the equivalent of approximately $64,000 in 2000—did
not violate article I, section 17). Ultimately, in Izzolena, we said,
Considering the nature of the offense, resulting harm,
and the great deference afforded the legislature, we conclude
section 910.3B does not on its face violate the Excessive
Fines Clause of our state and federal constitutions. The
minimum restitution award of $150,000 is high, but not
grossly disproportionate to the gravity of the offenses covered
under the statute.
609 N.W.2d at 551.
Our analysis in Izzolena under both the United States and the
Iowa Constitutions drew upon recent United States Supreme Court
precedent. In United States v. Bajakajian, the United States Supreme
Court had held it would violate the Eighth Amendment to order a
defendant to forfeit all of the $357,144 he failed to report in violation of
federal law considering that his crime was “solely a reporting offense,” he
would have been able “to transport the currency out of the country so
long as he reported it,” he was not in the class of persons targeted by the
statute, and the harm caused by his actions was “minimal” and resulted
23
in “no loss to the public fisc.” 524 U.S. 321, 337–39, 118 S. Ct. 2028,
2038–39, 141 L. Ed. 2d 314, 331–32 (1998). According to the Bajakajian
Court, a forfeiture that was “grossly disproportional to the gravity of the
defendant’s offense” would be unconstitutional. Id. at 337, 118 S. Ct. at
2038, 141 L. Ed. 2d at 329.
We adopted that standard in Izzolena for restitution. 609 N.W.2d
at 549. Therefore, we concluded a restitution award with punitive
characteristics would violate the excessive fines clause of article I,
section 17 if it was “grossly disproportional to the gravity of the
defendant’s offense.” Id. (quoting Bajakajian, 524 U.S. at 337, 118 S. Ct.
at 2038, 141 L. Ed. 2d at 331). 9
Richardson does not ask us to overrule Izzolena for adult
defendants. And we are not the only jurisdiction to uphold large
mandatory fines in criminal cases. See, e.g., Gordon v. State, 139 So. 3d
958, 959–60, 964 (Fla. Dist. Ct. App. 2014) (finding that mandatory fines
of $100,000 and $500,000 imposed on an oxycodone trafficker did not
violate the Eighth Amendment or article I, section 17 of the Florida
Constitution); Commonwealth v. Carela-Tolentino, 48 A.3d 1221, 1222
(Pa. 2012) (mem.) (per curiam) (rejecting a federal and state excessive
fines challenge to a mandatory $25,000 fine imposed in drug possession
case). However, Richardson urges that the legal landscape has changed
as to juvenile homicide offenders since Izzolena was decided. As we have
already noted, in Lyle, we decided all mandatory minimum prison
sentences for juvenile offenders violate the cruel and unusual
9Two years ago, the Supreme Court indicated that the punitive purposes of
restitution may be sufficient to bring it within the purview of the Eighth Amendment’s
Excessive Fines Clause. Paroline v. United States, 572 U.S. __, __, 134 S. Ct. 1710,
1726, 188 L. Ed. 2d 714, 732–33 (2014).
24
punishment clause of the Iowa Constitution. 854 N.W.2d at 400.
Richardson maintains that under the rationale of Lyle, we should find a
mandatory restitution award violates the excessive fines clause of the
Iowa Constitution when imposed upon a juvenile homicide offender.
Richardson seizes on language in Lyle focusing upon the critical
importance of sentencing discretion when sentencing juveniles: “[E]ven a
short [mandatory] sentence . . . deprives the district court of discretion in
crafting a punishment that serves the best interests of the child and of
society.” Id. at 402. “Article I, section 17 . . . prohibits the one-size-fits-
all mandatory sentencing for juveniles.” Id. at 403; see also id. at 401
(“The mandatory nature of the punishment establishes the constitutional
violation.”).
Yet, we believe that a mandatory period of incarceration is
fundamentally different from the $150,000 restitution award at issue
here. No court, to our knowledge, has applied Miller to fines or
restitution. Imprisonment is qualitatively different because it
incapacitates the individual and foreswears rehabilitation during the
period of incarceration. See id. at 400. As we put it in Lyle, there is a
sense in which imprisonment “write[s] off” the incarcerated individual
during his or her term of incarceration. Id. at 401; see also Pearson, 836
N.W.2d at 96 (indicating that imprisonment deprives a juvenile of
“leading a more normal adult life”). Thus, being incarcerated and owing
a restitution debt are simply not comparable. One is a matter of liberty,
the other a financial obligation.
Also, even if Iowa Code section 910.3B did not exist, juveniles who
committed felonious homicides would still be subject to substantial
financial obligations to their victims’ heirs and estates. See Iowa Code
§§ 611.20–.22; id. §§ 613.15–.15A; Iowa Supreme Ct. Att’y Disciplinary
25
Bd. v. Ouderkirk, 845 N.W.2d 31, 32–33 (Iowa 2014) (noting that a
multimillion dollar wrongful-death judgment was recovered against an
individual convicted of voluntary manslaughter).
In fact, payments on wrongful-death judgments and settlements
are credited against section 910.3B restitution. See Iowa Code § 910.8
(“[A]ny restitution payment by the offender to a victim shall be set off
against any judgment in favor of the victim in a civil action arising out of
the same facts or event.”). In State v. Klawonn, we held that the receipt
of a $275,000 settlement by the victim’s widow had the effect of
canceling the defendant’s $150,000 restitution obligation. See 688
N.W.2d 271, 275–76 (Iowa 2004). In State v. Driscoll, we held that civil
settlement payments of $165,000 and $130,000 respectively should be
credited against two restitution awards of $150,000 that had been
ordered after the defendant committed homicide-by-vehicle resulting in
two deaths. 839 N.W.2d 188, 189, 192 (Iowa 2013). The credited
payments thereby eliminated all but $20,000 of the defendant’s future
restitution obligation. Id.
Furthermore, like section 910.3B restitution, wrongful-death
judgments are not dischargeable in bankruptcy if based on “willful and
malicious injury.” See 11 U.S.C. § 523(a)(6) (2012); Iowa Code
§ 910.3B(1). In short, given the statutory coordination between civil
damages and criminal restitution payments to avoid double recovery, see
Klawonn, 688 N.W.2d at 275, and given that $150,000 is not
extraordinary or even generous compensation for the death of a person,
it would not be fair to equate it to a mandatory term of incarceration. 10
10This is true even considering that Iowa Code section 910.3B allows separate
recovery of “pecuniary damages.” See Iowa Code § 910.3B(1).
26
In a sense, Iowa Code section 910.3B functions as an alternative to
a wrongful-death action. Instead of retaining an attorney and bringing
suit, a victim’s family may prefer to rely on the minimum $150,000
restitution afforded by section 910.3B. It is entirely plausible that
relatives of decedents allowed estates to be closed and the wrongful-
death statute of limitations to run based on having received mandatory
restitution awards.
Additionally, our justice system is replete with mandatory
payments. In Lyle, we reasoned that the constitutional defect arose once
the legislature mandated any period of incarceration for a juvenile who
committed a crime. 854 N.W.2d at 401 (“The mandatory nature of the
punishment establishes the constitutional violation.”). Yet if we applied
that logic to fines and restitution, a juvenile could not be subjected to
any kind of financial penalty without a Miller/Ragland hearing. A
Miller/Ragland hearing would be required, potentially, before the court
could impose the scheduled fine for a speeding ticket on a juvenile.
Richardson makes a broad statement that “juvenile offenders are
not in the same position as adult offenders to afford restitution payments
due to an inability to achieve a comparable level of earning capacity.”
However, Richardson cites no data for this assertion. In fact, juvenile
offenders like Richardson could be in a better position than comparable
adult offenders to repay $150,000 restitution because of their younger
age and the shorter period for which they will be incarcerated. Cf. State
v. Mayberry, 415 N.W.2d 644, 645–47 (Iowa 1987) (rejecting a claim in a
pre-Iowa Code section 910.3B first-degree murder case that the
$60,828.53 restitution award against the defendant serving a life
sentence was unconstitutionally excessive, even though calculations
showed he would be unable to repay it in his lifetime).
27
Finally, a defendant is not required to pay the $150,000 restitution
all at once. For each defendant, a restitution payment plan is prepared
taking into account the defendant’s income and other circumstances.
See Iowa Code § 910.5(1)(d)(1). The payment plan can be amended as
those circumstances change. See id. §§ 910.5(1)(d)(2), .7(2); State v.
Morris, 858 N.W.2d 11, 16 & n.4 (Iowa 2015); Izzolena, 609 N.W.2d at
553 n.8; Klawonn, 609 N.W.2d at 519 (“The restitution statute permits
the court to structure a plan of restitution to help diminish the collateral
consequences of a civil judgment.”). Thus, restitution is less one-size-
fits-all than a cursory review of section 910.3B alone might suggest. Cf.
Lyle, 854 N.W.2d at 403 (indicating that one-size-fits-all mandatory
prison terms for juveniles are unconstitutional). It is true that a
restitution payment plan requires regular periodic payments, but most
Iowans carry ongoing financial obligations as part of their monthly lives,
such as home loans, car loans, credit card debt, and student loans. 11
In Mayberry, we took note of the flexibility afforded by Iowa Code
section 910.7 in rejecting the defendant’s Eighth Amendment excessive
fines challenge: “[U]nder Iowa Code section 910.7, a plan of restitution is
reviewable at any time during the period of probation, parole, or
11Richardson maintains that restitution is different because payment of
restitution may affect voting rights. To be precise, under article II, section 5 of the Iowa
Constitution, it is the conviction of an “infamous crime” that results in the loss of voting
rights. See Griffin v. Pate, 884 N.W.2d 182, 185 (Iowa 2016). The governor has the
ability to restore voting rights to persons convicted of infamous crimes through the
pardoning power. Id. at 194. Different governors have followed different approaches in
deciding when to use executive clemency to restore voting rights. See id. The current
stated policy requires the person to discharge his or her sentence, but does not require
him or her to have completed restitution. Instead, the person “must submit
documentation demonstrating [he or she is] on a payment plan and [has] paid on these
costs in good faith.” See FAQ - Voting, Office of the Governor of Iowa, at 2 (Sept. 1,
2016), https://governor.iowa.gov/sites/default/files/documents/FAQ%20-
%20Voting.pdf.
28
incarceration at the request of the offender or the party who prepared the
plan of restitution.” 415 N.W.2d at 647. This flexibility does not exist for
civil wrongful-death judgments. They can be collected at any time in any
amount, subject only to certain federal limits. See, e.g., 15 U.S.C.
§ 1673(a) (limiting wage garnishment to twenty-five percent of disposable
earnings).
We conclude section 910.3B does not on its face violate the
excessive fines clause of the Iowa Constitution as it relates to juvenile
homicide offenders. The $150,000 minimum restitution award is not
grossly disproportionate to the offense for the reasons we previously
discussed in Izzolena, and Lyle does not undermine that holding as to
juveniles for the reasons discussed here. The diminished culpability of
youth does not make it unconstitutional for the legislature to mandate a
$150,000 restitution award (with credits for payments on civil judgments
or civil settlements) against all persons who are convicted of a felony that
results in the death of another.
C. As-Applied Constitutional Challenge. Lastly, Richardson
raises an as-applied challenge to the $150,000 restitution ordered in her
specific case. We previously addressed two such challenges the same
day we decided Izzolena.
In Klawonn, we considered an as-applied challenge to a $150,000
restitution-for-death award brought by a twenty-four-year-old motorist
who was convicted of involuntary manslaughter after driving seventy
miles per hour in a forty-mile-per-hour zone. 609 N.W.2d at 517.
Although the defendant’s driving resulted in a fatal collision, no drugs or
alcohol was involved. Id. The defendant nonetheless raised an as-
applied challenge under both the Eighth Amendment and article I,
section 17, asserting “the $150,000 restitution award . . . [was] excessive
29
in light of all of the underlying facts and circumstances of the offense.”
Id. at 518. We summarized the defendant’s position as follows:
[H]e claims the traffic offense of speeding does not justify
punishment in the form of a restitution award of $150,000.
Additionally, he asserts the award is excessive because it is
not dischargeable in bankruptcy and will likely constitute a
debilitating financial burden for the remainder of his life.
Id.
We found no constitutional violation. Id. at 519. We emphasized
that the defendant had driven recklessly at seventy miles per hour on a
city street. Id. at 518. We found that “the $150,000 restitution award is
not grossly disproportionate to the gravity of the offense of involuntary
manslaughter involving the reckless operation of a motor vehicle.” Id. at
519.
In State v. Rohm, we likewise considered an as-applied challenge.
609 N.W.2d 504, 514 (Iowa 2000). There the defendant had purchased
liquor to be served at a party hosted by her sons, aged nineteen and
twenty, after one of them “persuaded her he would simply find another
means to obtain liquor if she refused to purchase it.” Id. at 507. A
fourteen-year-old learning-disabled boy consumed the alcohol at the
party and died of alcohol poisoning. Id. at 507, 509. The defendant was
convicted of involuntary manslaughter and ordered to pay the $150,000
restitution award. Id. at 509.
As in Klawonn, we rejected the defendant’s as-applied challenges
to the restitution award under the Eighth Amendment and article I,
section 17. We pointed out,
Although her conduct was passive in the sense that she did
not participate in the consumption of liquor with the minors,
she was the source or supplier of the liquor. She supplied
large amounts of liquor, some with very high levels of
alcohol. There was also evidence to support a finding she
30
knew the liquor was being consumed. Whether passive or
active, her conduct was extremely serious under the
circumstances of the case.
Id. at 514.
Here, Richardson pled guilty to aiding and abetting a murder with
malice aforethought. She knew that Curd’s plan was to kill Kunkle, and
she joined in and actively participated in the plan. She does not dispute
that her acts were a cause of Kunkle’s death. As in Klawonn and Rohm,
the issue here is whether the $150,000 restitution award required by
section 910.3B is grossly disproportionate to the gravity of the offense
committed. See Klawonn, 609 N.W.2d at 518; Rohm, 609 N.W.2d at 514.
As we have already discussed, excessive-fine analysis primarily
focuses “on the amount of the punishment as it relates to the particular
circumstances of the offense.” Izzolena, 609 N.W.2d at 551. “The ‘fine’
must bear some relationship to the gravity of the offense it is designed to
punish.” Klawonn, 609 N.W.2d at 518 (citing Bajakajian, 524 U.S. at
327, 118 S. Ct. at 2028, 141 L. Ed. 2d at 325). The issue is whether “the
restitution award [is] grossly disproportionate to the offense.” Rohm, 609
N.W.2d at 514.
In In re Property Seized from Terrell, we addressed an excessive
fines claim in the context of a juvenile delinquency proceeding. See 639
N.W.2d 18 (Iowa 2002). In that case, a youth was adjudicated a
delinquent in connection with the attempted burglary of stereo
equipment from a parked car and possession of burglary tools. Id. at 19.
The state brought an action to forfeit the vehicle the juvenile was using.
Id. As a result, the youth lost his own vehicle that he claimed to be
worth between $8850 and $9050. Id. at 21. We rejected the juvenile’s
claim this was an unconstitutionally excessive fine under the Eighth
Amendment and article I, section 17. Id. at 19 & n.1, 21–22. We found
31
the youth had failed to establish even a prima facie case that the loss of
his vehicle, when compared to the severity of his offenses, was grossly
disproportionate. Id. at 22.
Richardson argues her age at the time of the offense, her history of
substance abuse, the rape she suffered, her difficult home life, and her
relationship with Curd are all “circumstances of the offense” that make
the $150,000 restitution award disproportionate to the gravity of the
offense. Nonetheless, the offense committed by Richardson was
extremely serious in nature. Richardson admitted she stabbed Kunkle
with a steak knife once in his neck and twice in the side as part of a plan
to kill him for cash. Richardson also admitted to helping Curd conceal
Kunkle’s body in the apartment and destroying evidence of the couple’s
involvement. In pleading guilty to aiding and abetting second-degree
murder, Richardson acknowledged acting intentionally with malice
aforethought in killing Kunkle. Although Richardson was a juvenile and
we have no reason to question her psychologist’s testimony that she
would not have perpetrated this killing on her own, she intentionally
participated in the taking of a human life. By contrast, the conduct
involved in Klawonn and Rohm was merely reckless.
Even after taking into account Richardson’s age and her personal
history as aspects of the gravity of her offense, on this record we do not
find the $150,000 restitution award unconstitutionally excessive in
violation of the Iowa Constitution.
Our record does not include an actual restitution payment plan.
We do not consider today whether Iowa Code section 910.3B could be
unconstitutional as applied to a juvenile homicide offender because of
her specific payment plan. We have previously held that ability-to-pay
challenges to restitution are premature until the defendant has
32
exhausted the modification remedy afforded by Iowa Code section 910.7.
State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999). On a related note,
we are also not addressing the possibility that a juvenile homicide
offender could show a restitution payment plan so deprives her of the
opportunity for rehabilitation as to undermine the guarantees of Miller,
Lyle, Ragland, Pearson, and Null. See Miller, 567 U.S. at __, 132 S. Ct. at
2470, 183 L. Ed. 2d at 423–24; Lyle, 854 N.W.2d at 399–400; Ragland,
836 N.W.2d at 121; Pearson, 836 N.W.2d at 96; Null, 836 N.W.2d at 71–
72.
IV. Conclusion.
For the reasons stated above, we affirm the decision of the court of
appeals and the judgment and sentence of the district court.
DECISION OF COURT OF APPEALS AND JUDGMENT AND
SENTENCE OF DISTRICT COURT AFFIRMED.
All justices concur except Appel, Wiggins, and Hecht, JJ., who
dissent.
33
#14–1174, State v. Richardson
APPEL, Justice (dissenting).
I respectfully dissent. For the reasons expressed below, I would
remand this case to the district court for consideration of the potentially
reduced culpability of a juvenile offender before the imposition of
punishment through restitution under Iowa Code section 910.3B (2013).
I. Applicability of Ragland–Null–Lyle to a Challenge to the
Amount of Restitution in a Criminal Case Under the Excessive Fines
Clause of Article I, Section 17 of the Iowa Constitution.
A. Introduction. In this case, Daimonay Richardson pled guilty
to aiding and abetting second-degree murder in connection with the
death of Ronald Kunkle. At the time of the murder, Richardson was a
troubled fifteen-year-old girl. At the time of the crime, her father had
abandoned her, and for many years, her main caregiver was her
maternal grandmother. She was sexually assaulted at the age of twelve,
had to repeat seventh grade, and began to use drugs and alcohol at an
early age. The facts surrounding the crime are outlined in the majority
opinion. Richardson’s codefendant, D’Anthony Curd, was four years
older than Richardson and encouraged her to skip school and use drugs.
She assisted Curd in stabbing Ronald Kunkle to death while under the
influence of drugs.
At the sentencing hearing, Richardson presented testimony from
Dr. Mark Cunningham, a forensic psychologist. He testified to the
presence of twenty-one adverse developmental factors that reduced
Richardson’s moral culpability for the crime:
1. Age 15 at time of the offense.
2. Trans-generational family dysfunction.
3. Hereditary predisposition to alcohol and drug use.
34
4. Alcoholism of father.
5. Abandonment [by] father.
6. Failure of mother to effectively bond to her.
7. Learning disability.
8. Emotional and supervisory neglect.
9. Amputation of relationship with psychological parent
[grandmother] as a pre-adolescent.
10. Death of psychological parent.
11. Residential transience.
12. Household transitions and instability.
13. Sexual assault.
14. Premature sexualization.
15. Target of peer harassment and bullying.
16. Early teen onset of alcohol and drug abuse.
17. Inadequate mental health interventions.
18. Expulsion from maternal household.
19. Victimization in predatory relationship with codefendant.
20. Domination by the predatory codefendant in the murder.
21. Heavy substance abuse, including synthetic cannabinoid
proximate to offense.
The district court entered an order awarding restitution in the
amount of $150,000 to the estate of the victim under Iowa Code section
910.3B.
B. Overview of Legal Issue. In a series of cases, we have held
the district court must consider the limited culpability of juvenile
offenders in imposing criminal sentences. State v. Lyle, 854 N.W.2d 378,
402 (Iowa 2014); State v. Ragland, 836 N.W.2d 107, 122 (Iowa 2013);
State v. Null, 836 N.W.2d 41, 72 (Iowa 2013). These cases generally
35
incorporate and expand upon the teachings of the United States
Supreme Court in Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183
L. Ed. 2d 407 (2012).
In Miller, the United States Supreme Court noted that children
were “constitutionally different” from adults for purposes of sentencing.
567 U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418. According to
the Court, children have a “lack of maturity” and an “underdeveloped
sense of responsibility,” leading to “recklessness, impulsivity, and
heedless risk-taking.” Id. (quoting Roper v. Simmons, 543 U.S. 551, 569,
125 S. Ct. 1183, 1195, 161 L. Ed. 2d 1, 21 (2005)). Further, the United
States Supreme Court emphasized that children are more vulnerable to
“ ‘negative influences and outside pressures,’ including from their family
and peers.” Id. (quoting Roper, 543 U.S. at 569, 125 S. Ct. at 1195, 161
L. Ed. 2d at 22). Finally, the Court noted that a child’s character is not
as well formed as an adult’s and thus his actions are “less likely to be
‘evidence of irretrievabl[e] deprav[ity].’ ” Id. (quoting Roper, 543 U.S. at
570, 125 S. Ct. at 1195, 161 L. Ed. 2d at 22).
Our cases, however, have all arisen in the context of a cruel and
unusual punishment challenge to a term of imprisonment. This case
raises the interesting question of whether the principles of our cruel and
unusual punishment cases involving juvenile offenders apply to a
challenge under the excessive fines clause of the Iowa Constitution—
article I, section 17—to an award of restitution in a criminal case under
Iowa Code section 910.3B.
Iowa has a two-tiered restitution regime that applies in criminal
cases. Under Iowa Code section 910.2, an offender is required to make
restitution to the victims of crimes. The damages recoverable under Iowa
Code section 910.2 include pecuniary damages, which are,
36
all damages to the extent not paid by an insurer, which a
victim could recover against the offender in a civil action
arising out of the same facts or event, except punitive
damages and damages for pain, suffering, mental anguish,
and loss of consortium.
Iowa Code § 910.1(3).
In addition, Iowa Code section 910.3B requires an offender
convicted of a felony resulting in death to pay at least $150,000 in
restitution to the victim’s estate. The restitution award under this
section does not impede or supersede a civil action for damages arising
out of the same facts, but is an offset against any judgment in favor of
the victim. See id. §§ 910.3B(2), .8.
In State v. Izzolena, we considered a challenge to Iowa Code section
910.3B on the ground that the imposition of a $150,000 restitution
award amounted to an unconstitutional excessive fine under the Eighth
Amendment of the United States Constitution and article I, section 17 of
the Iowa Constitution. 609 N.W.2d 541, 545 (Iowa 2000). In Izzolena,
the offender was found guilty of vehicular homicide and the district court
imposed a $150,000 restitution award under Iowa Code section 910.3B.
Id.
We first considered whether the Excessive Fines Clause was
applicable to restitution under Iowa Code section 910.3B. Id. at 547. We
canvassed the history of the Excessive Fines Clause, concluding that the
framers of the United States Constitution were concerned with limiting
the power of the government to punish. Id. at 549. We noted that our
cases stated that restitution was not designed solely to compensate
victims, but to rehabilitate and instill responsibility in criminal offenders.
Id. at 548; see also State v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986);
State v. Haines, 360 N.W.2d 791, 795 (Iowa 1985). We further noted that
Iowa Code section 910.3B revealed punitive purposes. Izzolena, 609
37
N.W.2d at 548. We noted that under the statute, no proof was required
to support damages. Id. at 548–49. We also noted that an award of
restitution is not dischargeable in bankruptcy, suggesting the punitive
nature of the award. Id. at 549.
We thus held that although restitution might serve a remedial
purpose, it was still subject to the Excessive Fines Clause because it
served in part to punish. Id. We stated that under the Excessive Fines
Clause, the test was whether the penalty is “grossly disproportional to
the gravity of the defendant’s offense.” Id. (quoting United States v.
Bajakajian, 524 U.S. 321, 337, 118 S. Ct. 2028, 2038, 141 L. Ed. 2d
314, 331 (1998)).
We concluded, however, that the imposition of a $150,000
restitution award on its face did not violate the Excessive Fines Clause.
Id. at 551. We declined to address the question of whether the
punishment was constitutional under the facts of the case as the
argument was not raised in the district court or on appeal. Id.
Three members of the Izzolena court dissented. The dissenters
discussed whether the fine imposed would deprive the defendant of a
livelihood. Id. at 555 (Lavorato, J., dissenting). They stated that the
proper course was to remand the matter to the district court for a
“meaningful hearing.” Id. at 556 (emphasis omitted).
C. Application to Richardson. There are two potential attacks to
the $150,000 fine in this case. The first line of attack is whether the fine
imposed deprives Richardson of a livelihood. This is a consequential
attack that concerns itself only with the amount of the award. There is
substantial support for this line of attack in the literature and caselaw.
Even offenders who commit serious criminal offenses cannot become
wage slaves upon their release or encounter financial burdens so
38
onerous that the offender ends up with an extended term of incarceration
arising from inability to pay an excessive fine. See Cortney E. Lollar,
Punitive Compensation, 51 Tulsa L. Rev. 99, 100 (2015) (decrying
situations when criminal defendants end up being incarcerated for a
longer period of time than for their original sentence due to a failure to
pay a restitution obligation); Nicholas M. McLean, Livelihood, Ability to
Pay, and the Original Meaning of the Excessive Fines Clause, 40 Hastings
Const. L.Q. 833, 895–96 (2013) (suggesting excessive-fines test regarding
livelihood includes ability to pay in light of earning capacity, financial
resources, and burdens fine places on defendant and his dependents).
To the extent that Richardson seeks to raise a consequential type
of claim based on deprivation of the ability to earn a livelihood, I agree
that it should be deferred until Richardson is released from prison and
until the terms of any restitution order are known. We have recognized
that with respect to the obstacles created by imposition of restitution
awards, Iowa law places limits on enforcement and collection of the fine
and permits the court to structure a plan of restitution to help diminish
the collateral consequences of a civil judgment. See State v. Klawonn,
609 N.W.2d 515, 518–19 (Iowa 2000). The best time to measure the
impact of any restitution award on the ability of Richardson to earn a
livelihood will be measured on her release when a court can examine the
burdens of the restitution award and the ability of the recently released
Richardson to generate income.
There is another type of challenge to the restitution award,
however, not one based upon the consequences of an award on the
offender’s ability to earn a livelihood, but instead based on the gravity of
the offense. See id. at 518. The focus is not on the impact of the amount
39
of the award, but instead on the nature of the underlying crime.
Analysis of the gravity of the offense is a fact-specific inquiry. Id.
In my view, inquiry into the gravity of the offense includes
consideration of criminal culpability. The relatively recent case of
Paroline v. United States, tends to support the view that relative
culpability is a factor in determining applicability of the Excessive Fines
Clause. See 572 U.S. ___, ___, 134 S. Ct. 1710, 1727–28, 188 L. Ed. 2d
714, 734–35 (2014). Examination of relative culpability clearly allows an
offender to offer evidence of reduced criminal culpability under the
Ragland–Null–Lyle line of reasoning.
In this case, Richardson received a hearing. The question is,
however, whether at the hearing the district court is required to consider
evidence that her criminal culpability is reduced because of her age at
the time of the crime and other related developmental issues. A
reduction in the amount of the fine based on asserted lack of criminal
culpability should not be determined at the time of release, when
evidence will be hard to come by, but at the time of imposition of the
restitution award.
I do not suggest the amount of restitution must be reduced in this
case or in any other case, based on the lessened culpability of juvenile
offenders. I do think, however, the fact that an offender was a juvenile
must be considered in any punishment regime in which culpability is a
factor.
Richardson’s expert at the hearing presented twenty-one
developmental factors that reduced Richardson’s culpability in this
matter. They included her age of fifteen at the time of the offense, the
alcoholism and abandonment by her father, a learning disability, failure
to bond with her mother, emotional and supervisory neglect, sexual
40
assault, alcohol and drug abuse, heavy substance abuse proximate to
the offense, inadequate mental health interventions, peer harassment
and bullying, and domination by the predatory codefendant in the crime.
Based on my review of the record, it is unclear whether the district court
understood that it was required to consider the evidence offered by
Richardson or whether the district court in fact considered the evidence
in making its restitution award. The district court cited the evidence, but
the district court did not make specific findings.
Under the circumstances, I think the proper approach is to
remand the case for further proceedings before the district court. On
remand, the district court should expressly consider the Miller factors
outlined in Ragland, Null, and Lyle, make appropriate factual findings,
and set the amount of restitution award in this case.
I agree that any challenge to the $150,000 restitution award as
excessive and in violation of the excessive fines clause of article I, section
17 of the Iowa Constitution is not ripe.
II. Interpretation of Iowa Code Section 901.5(14).
I also respectfully dissent with respect to the majority’s
interpretation of Iowa Code section 901.5(14) (2014). I conclude the
statute means what is says, namely, a district court may suspend any
part of a sentence, including restitution, in whole or in part. Because the
district court did not appear to be aware of that discretion, the case
should be remanded to the district court for further consideration.
Iowa Code section 901.5(14) was enacted in part in response to our
holdings with respect to mandatory minimum sentences for juvenile
offenders.
I begin with the language of Iowa Code section 901.5(14). This
Code provision states,
41
Notwithstanding any provision in section 907.3 or any other
provision of law prescribing a mandatory minimum sentence
for the offense, if the defendant, other than a child being
prosecuted as a youthful offender, is guilty of a public
offense other than a class “A” felony, and was under the age
of eighteen at the time the offense was committed, the court
may suspend the sentence in whole or in part, including any
mandatory minimum sentence, or with the consent of the
defendant, defer judgment or sentence, and place the
defendant on probation upon such conditions as the court
may require.
Iowa Code § 901.5(14). As is apparent, the statue provides the court
“may suspend the sentence in whole or in part, including any mandatory
minimum sentence.” 12 I draw two conclusions from the statutory
language.
First, the legislature selected the term “sentence” in the statute.
We have repeatedly held the term “sentence” includes restitution in a
criminal case. See, e.g., Izzolena, 609 N.W.2d at 551 (“Restitution . . . is
a part of the sentencing process.”); State v. Alspach, 554 N.W.2d 882,
883 (Iowa 1996) (recognizing that “restitution is a phase of sentencing”);
see also 4 Robert R. Rigg, Iowa Practice SeriesTM, Criminal Law § 33:5, at
905 (2016–2017 ed.) (characterizing restitution as “part of the sentence
imposed” under our cases). Others authorities have come to the same
conclusion. See, e.g., United States v. Simpson, 885 F.2d 36, 38 (3d Cir.
1989) (holding sentences include all consequences of convictions); United
States v. Satterfield, 743 F.2d 827, 837–38 (11th Cir. 1984) (stating that
Congress intended restitution to be part of the criminal sentence to make
the victim whole); 6 Wayne R. La Fave, et al., Criminal Procedure
12In Lyle, 854 N.W.2d at 404, we held that mandatory minimum sentences for
youths could not be imposed without a hearing to consider the factors outlined in
Miller, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407. We have no occasion here to
consider the extent to which Iowa Code section 901.5(14) complies with Lyle or any
other authority.
42
§ 26.6(c), at 1068 (4th ed. 2015) (“[E]very jurisdiction provides for victim
restitution to be included in a criminal sentence.” (Emphasis added.));
Keven Bennardo, Restitution and the Excessive Fines Clause, 77 La. L.
Rev. 21, 21 (2016) (“Restitution is an important component of a criminal
offender’s sentence.” (Emphasis added.)); Cortney E. Lollar, What is
Criminal Restitution?, 100 Iowa L. Rev. 93, 94 (Iowa 2014) (“Restitution
imposed as part of a criminal sentence has become a core component of
criminal punishment.” (Emphasis added.)). If the legislature intended
the statute to apply narrowly, it could have used narrow language. It did
not.
As succinctly noted by an appellate court, the term “sentence” is
not synonymous with the term “jail.” State v. Josephson, 858 P.2d 825,
826 (Idaho Ct. App. 1993); see also Smarr v. Pa. Bd. of Prob. & Parole,
748 A.2d 799, 801 (Pa. Commw. Ct. 2000) (holding a sentence is not
limited to period of incarceration), disapproved of on other grounds by
Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d 299, 308–09 (Pa. 2003). The
terms “sentence” and “judgment” are generally synonymous. See State v.
Turbeville, 686 P.2d 138, 146–47 (Kan. 1984); accord People v. Adams,
220 N.E.2d 17, 18 (Ill. App. Ct. 1962). A sentence is the judgment
formally announced by the court after conviction imposing the
punishment to be inflicted. Klouda v. Sixth Judicial Dist. Dep’t of Corr.
Servs., 642 N.W.2d 255, 261 (Iowa 2002). And, the judgment includes
any order of restitution.
Second, under the statute, the district court may suspend any part
of the sentence, “including any mandatory minimum sentence.” Iowa
Code § 901.5(14). The use of the term “including” demonstrates that the
relief was not limited to mandatory minimum sentences. By using the
term “including,” the legislature contemplated the statute had a larger
43
reach than simply allowing the district court to suspend a mandatory
minimum sentence. The logical conclusion is that it includes any part of
the sentence, just as the language of the statute indicates.
I do not think the introductory and closing language of the statute
changes the analysis. In the introductory “notwithstanding” phrase, the
legislature makes clear that all mandatory minimums are affected by the
statute. The closing language emphasizes the availability of a deferred
judgment or probation. These phrases may have been added for
emphasis, but they are not inconsistent with the notion that the district
court may suspend any part of a sentence.
Based on my examination of the record, I conclude the district
court did not realize that, under the statute, it had authority to consider
“suspending” the total amount of restitution in its sentencing order
based upon the youth of the offender. As a result, remand is required.
See State v. Ayers, 590 N.W.2d 25, 32–33 (Iowa 1999). 13
Wiggins and Hecht, JJ., join this dissent.
13The State has a brief heading indicating that Iowa Code section 901.5(14) is
not retroactive and does not apply in this case. Aside from the heading, no argument is
presented in its brief. We thus have no occasion to consider whether the statute is
retroactive or prospective only. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGrath,
713 N.W.2d 682, 693 n.3 (Iowa 2006) (considering an issue waived when respondent
raised an issue in an introductory heading, but made no argument nor cited authority
in support of the issue); accord State v. Vaughan, 859 N.W.2d 492, 503 (Iowa 2015);
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morris, 847 N.W.2d 428, 434 (Iowa 2014).