Kirk Riley Levin v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: March 8, 2023
• Docket: 22-0068
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0068 Filed March 8, 2023

KIRK RILEY LEVIN, Petitioner,

vs.

STATE OF IOWA, Respondent. ________________________________________________________________

Petition for writ of certiorari from the Iowa District Court for Sac County,

Gary McMinimee, Judge.

Kirk Levin claims his mandatory life sentence is illegal. WRIT ANNULLED.

Shawn Smith of The Smith Law Firm, PC, Ames, for petitioner.

Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney

General, for respondent.

Considered by Tabor, P.J., Schumacher, J., and Gamble, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023). 2

GAMBLE, Senior Judge.

Kirk Levin brought the underlying action as a postconviction-relief claim

alleging his mandatory life sentence without parole for murdering his mother when

he was twenty-one years old violates his constitutional protection against cruel and

unusual punishment. The district court treated his application as a motion to

correct an illegal sentence. See Dorsey v. State, 975 N.W.2d 356, 360 (Iowa 2022)

(recognizing “[w]hen an offender files an application for postconviction relief and

complains his sentence is illegal . . . the claim is not a postconviction relief action”

and is instead “treated as a motion to correct an illegal sentence” (second

alteration in original) (citations and internal quotation marks omitted)). The court

then concluded Levin’s sentence was not illegal because there is no caselaw

supporting Levin’s contention that juvenile sentencing procedures should apply to

young adult offenders.

Levin appeals. However, “[t]here is no appeal as a matter of right from the

denial of a motion to correct an illegal sentence.” Id. Iowa Rule of Appellate

Procedure 6.108 permits us to proceed as though Levin sought the proper form of

review by treating his notice of appeal as a petition for writ of certiorari. See id.

We grant the petition and proceed to the merits. See id.

To the extent Levin attempts to challenge the district court’s determination

that the imposition of a mandatory life sentence without parole on young adults

does not violate the state or federal constitutions, he fails. Our supreme court

already determined such sentence violated neither constitution’s bar against cruel 3

and unusual punishment when applied to an adult offender younger than him. 1 Id.

at 362–63. So we conclude the district court’s ruling was correct.

However, Levin’s brief largely pivots away from his original claim to instead

argue imposition of a mandatory life sentence without parole on individuals with

intellectual disabilities violates the state and federal constitutional prohibitions

against cruel and unusual punishment.2 He argues we should expand the

sentencing scheme used to sentence juveniles to adults with intellectual disabilities

and order his resentencing. Levin’s claim fails for two reasons as pointed out by

the State.

First, Levin provides nothing to suggest he is a person with an intellectual

disability. He did not present any evidence that he suffers from an intellectual

disability to the district court. And according to a presentence investigation report,

following a 2008 arrest, “[t]esting showed he was in the high average range of . . .

intellectual functioning.” Nothing suggests Levin’s intellectual functioning

deteriorated or was impeded in some manner since that time. So even if

individualized sentencing was required for adults with intellectual disabilities, Levin

cannot show he would be entitled to individualized sentencing on that basis.

Second, this court has rejected a similar claim already. In Horlas v. State,

Horlas “propos[ed] extending the line of cases under the Iowa Constitution that

1 The offender in Dorsey was eighteen years and five days old when he committed murder in the first degree. 975 N.W.2d at 358. 2 Because a challenge to an illegal sentence may be raised at any time, Levin may

raise this new claim even now. See Dorsey, 975 N.W.2d at 363. We note that although Levin asserts his new claim under both the federal and state constitutions, he does not advocate for a different standard under the state constitution. So we elect to apply the same standard under both constitutions. See State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009). 4

prohibit categorial restrictions on mandatory juvenile sentences to intellectually-

disabled adults.” No. 19-1344, 2020 WL 5944450, at *2 (Iowa Ct. App. Oct. 7,

2020). We concluded no Iowa caselaw supported his position. Id. Like Levin,

Horlas also proposed Atkins v. Virginia, 536 U.S. 304, 318–20 (2002), which found

the imposition of the death penalty on intellectually disabled individuals to be

unconstitutional, should be expanded to prohibit mandatory life sentences for

those who are intellectually disabled. 2020 WL 5944450, at *1–2. We rejected

this contention as well. Id. (citing State v. Tuecke, No. 15-0617, 2016 WL 1681524,

at *8 (Iowa Ct. App. Apr. 27, 2016) (recognizing a variety of jurisdictions have

limited application of Atkins to only death penalty cases)). Levin provides no

compelling reason for us to deviate from Horlas.

We conclude Levin’s sentence is not illegal and Levin is not entitled to

resentencing.

WRIT ANNULLED.