IN THE COURT OF APPEALS OF IOWA
No. 18-0988 Filed October 9, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
EDDY SHAMI MULIGANDE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Story County, Steven P. Van Marel,
District Associate Judge.
Eddy Shami Muligande appeals his sentence for two charges of public
intoxication, second offense. AFFIRMED.
John L. Dirks of Dirks Law Firm, Ames, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and May, JJ. 2
MAY, Judge.
Eddy Shami Muligande pled guilty to two charges of public intoxication,
second offense. Each violation was a serious misdemeanor under Iowa Code
sections 123.46(2) and 123.91 (2018). For each violation, the district court
imposed a one-year term of confinement. The court ran the sentences
consecutively for a total indeterminate term not to exceed two years.
Muligande argues “his sentence of two years for two counts of public
intoxication with a prior conviction” violates the prohibitions of cruel and unusual
punishment found in the Eighth Amendment to the U.S. Constitution and article I,
section 17 of the Iowa Constitution. This is true, Muligande argues, because his
prison sentence is “grossly disproportionate” to his crimes. We disagree.
We review an allegedly unconstitutional sentence de novo. State v.
Richardson, 890 N.W.2d 609, 614 (Iowa 2017). Our review begins with the words
of our constitutions. The Eighth Amendment of the United States Constitution
reads: “Excessive bail shall not be required, nor excessive fines be imposed, nor
cruel and unusual punishments inflicted.” Article I, section 17 of the Iowa
Constitution reads: “Excessive bail shall not be required; excessive fines shall not
be imposed, and cruel and unusual punishment shall not be inflicted.”
Neither clause “contain[s] a proportionality provision.” See Crawley v.
State, No. 15-1812, 2017 WL 108298, at *3 (Iowa Ct. App. Jan. 11, 2017)
(McDonald, J., concurring specially) (citing State v. Bruegger, 773 N.W.2d 862,
873 (Iowa 2009)). Moreover,
[a]s Justice Thomas noted with respect to the . . . Eighth Amendment to the Federal Constitution: 3
“[T]he Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted.” The clause does not contain a “proportionality principle.” In short, it does not authorize courts to invalidate any punishment they deem disproportionate to the severity of the crime or to a particular class of offenders. Instead, the clause “leaves the unavoidably moral question of who ‘deserves’ a particular nonprohibited method of punishment to the judgment of the legislatures that authorize the penalty.”
Id. (quoting Miller v. Alabama, 567 U.S. 460, 503–04 (2012) (Thomas, J.,
dissenting)); see, e.g., In re Kemmler, 136 U.S. 436, 446 (1890) (noting “cruel and
unusual punishment” encompasses barbarous types of punishment, such “as
burning at the stake, crucifixion[,] breaking on the wheel, or the like”).
The parties agree, however, that binding precedent requires this court to
conduct a proportionality review. As our supreme court recently explained in State
v. Wickes, “[w]e use a three-part test to determine whether a sentence is ‘grossly
disproportionate’ under the Cruel and Unusual Punishment Clauses of the State
and Federal Constitutions.” 910 N.W.2d 554, 572 (Iowa 2018) (citation omitted).
“The first part is a threshold inquiry examining ‘whether the sentence being
reviewed is “grossly disproportionate” to the underlying crime,’ which ‘involves a
balancing of the gravity of the crime against the severity of the sentence.’” Id.
(citation omitted). “No further analysis is required if the sentence being reviewed
does not raise an inference of gross disproportionality.” Id. “If the threshold test
is met, we partake in the second step, which requires us to engage in an
intrajurisdictional analysis to compare the challenged sentence to sentences of
other crimes within our jurisdiction.” Id. “Under the third step, we engage in an 4
interjurisdictional review and examine the sentences for similar crimes in other
jurisdictions.” Id.
As we apply this test, we always bear in mind the “substantial deference”
owed “to the penalties the legislature has established for various crimes.” Id. We
always remember that sentencing statutes “are cloaked with a presumption of
constitutionality.” State v. Wade, 757 N.W.2d 618, 622 (Iowa 2008) (citation
omitted). “We do not sit as a ‘superlegislature’ to second-guess [the] policy
choices” embodied in those statutes. Ewing v. California, 538 U.S. 11, 28 (2003).
It is, therefore, “rare that a sentence will be so grossly disproportionate to
the crime as to satisfy the threshold inquiry and warrant further review.” Wickes,
910 N.W.2d at 573 (citation omitted). “While a sentence to a term of years might
be so lengthy as to violate the Cruel and Unusual Punishment Clause, such an
occurrence outside the context of capital punishment has been ‘exceedingly rare.’”
Bruegger, 773 N.W.2d at 873 (citation omitted).
So we begin by considering the “gravity” of Muligande’s crimes. Wickes,
910 N.W.2d at 572. Although public intoxication may not be rare, we cannot say
it is innocuous. It creates significant dangers both for offenders and those whom
they encounter. As we said in State v. Gear, “[t]he State has a strong interest in
protecting its inhabitants against intoxicated persons who harass other citizens and
do violence both to themselves and to others.” No. 08-1620, 2009 WL 3086587,
at *5 (Iowa Ct. App. Sept. 17, 2009). This interest is magnified when dealing with
repeat offenders like Muligande. “Recidivism has long been recognized as a
legitimate basis for increased punishment” because, among other things, the State 5
has “a valid interest in deterring and segregating habitual criminals.” Ewing, 538
U.S. at 25 (citation omitted).
We next consider the “severity” of Muligande’s punishment. Wickes, 910
N.W.2d at 572. We do not find his sentence to be “so lengthy” as to raise
constitutional concerns. Bruegger, 773 N.W.2d at 873. Also, it bears emphasis
that Muligande did not receive a flat sentence. Rather, he was sentenced to an
indeterminate term with no mandatory minimum. This means he is immediately
eligible for parole. See State v. Propps, 897 N.W.2d 91, 101 (Iowa 2017). His
“behavior in prison” will have an impact on when parole will be available. See id.
In short, we find “the severity of the sentence” imposed on Muligande is not
“grossly disproportionate” to the “gravity” of his crimes.
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IN THE COURT OF APPEALS OF IOWA
No. 18-0988 Filed October 9, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
EDDY SHAMI MULIGANDE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Story County, Steven P. Van Marel,
District Associate Judge.
Eddy Shami Muligande appeals his sentence for two charges of public
intoxication, second offense. AFFIRMED.
John L. Dirks of Dirks Law Firm, Ames, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and May, JJ. 2
MAY, Judge.
Eddy Shami Muligande pled guilty to two charges of public intoxication,
second offense. Each violation was a serious misdemeanor under Iowa Code
sections 123.46(2) and 123.91 (2018). For each violation, the district court
imposed a one-year term of confinement. The court ran the sentences
consecutively for a total indeterminate term not to exceed two years.
Muligande argues “his sentence of two years for two counts of public
intoxication with a prior conviction” violates the prohibitions of cruel and unusual
punishment found in the Eighth Amendment to the U.S. Constitution and article I,
section 17 of the Iowa Constitution. This is true, Muligande argues, because his
prison sentence is “grossly disproportionate” to his crimes. We disagree.
We review an allegedly unconstitutional sentence de novo. State v.
Richardson, 890 N.W.2d 609, 614 (Iowa 2017). Our review begins with the words
of our constitutions. The Eighth Amendment of the United States Constitution
reads: “Excessive bail shall not be required, nor excessive fines be imposed, nor
cruel and unusual punishments inflicted.” Article I, section 17 of the Iowa
Constitution reads: “Excessive bail shall not be required; excessive fines shall not
be imposed, and cruel and unusual punishment shall not be inflicted.”
Neither clause “contain[s] a proportionality provision.” See Crawley v.
State, No. 15-1812, 2017 WL 108298, at *3 (Iowa Ct. App. Jan. 11, 2017)
(McDonald, J., concurring specially) (citing State v. Bruegger, 773 N.W.2d 862,
873 (Iowa 2009)). Moreover,
[a]s Justice Thomas noted with respect to the . . . Eighth Amendment to the Federal Constitution: 3
“[T]he Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted.” The clause does not contain a “proportionality principle.” In short, it does not authorize courts to invalidate any punishment they deem disproportionate to the severity of the crime or to a particular class of offenders. Instead, the clause “leaves the unavoidably moral question of who ‘deserves’ a particular nonprohibited method of punishment to the judgment of the legislatures that authorize the penalty.”
Id. (quoting Miller v. Alabama, 567 U.S. 460, 503–04 (2012) (Thomas, J.,
dissenting)); see, e.g., In re Kemmler, 136 U.S. 436, 446 (1890) (noting “cruel and
unusual punishment” encompasses barbarous types of punishment, such “as
burning at the stake, crucifixion[,] breaking on the wheel, or the like”).
The parties agree, however, that binding precedent requires this court to
conduct a proportionality review. As our supreme court recently explained in State
v. Wickes, “[w]e use a three-part test to determine whether a sentence is ‘grossly
disproportionate’ under the Cruel and Unusual Punishment Clauses of the State
and Federal Constitutions.” 910 N.W.2d 554, 572 (Iowa 2018) (citation omitted).
“The first part is a threshold inquiry examining ‘whether the sentence being
reviewed is “grossly disproportionate” to the underlying crime,’ which ‘involves a
balancing of the gravity of the crime against the severity of the sentence.’” Id.
(citation omitted). “No further analysis is required if the sentence being reviewed
does not raise an inference of gross disproportionality.” Id. “If the threshold test
is met, we partake in the second step, which requires us to engage in an
intrajurisdictional analysis to compare the challenged sentence to sentences of
other crimes within our jurisdiction.” Id. “Under the third step, we engage in an 4
interjurisdictional review and examine the sentences for similar crimes in other
jurisdictions.” Id.
As we apply this test, we always bear in mind the “substantial deference”
owed “to the penalties the legislature has established for various crimes.” Id. We
always remember that sentencing statutes “are cloaked with a presumption of
constitutionality.” State v. Wade, 757 N.W.2d 618, 622 (Iowa 2008) (citation
omitted). “We do not sit as a ‘superlegislature’ to second-guess [the] policy
choices” embodied in those statutes. Ewing v. California, 538 U.S. 11, 28 (2003).
It is, therefore, “rare that a sentence will be so grossly disproportionate to
the crime as to satisfy the threshold inquiry and warrant further review.” Wickes,
910 N.W.2d at 573 (citation omitted). “While a sentence to a term of years might
be so lengthy as to violate the Cruel and Unusual Punishment Clause, such an
occurrence outside the context of capital punishment has been ‘exceedingly rare.’”
Bruegger, 773 N.W.2d at 873 (citation omitted).
So we begin by considering the “gravity” of Muligande’s crimes. Wickes,
910 N.W.2d at 572. Although public intoxication may not be rare, we cannot say
it is innocuous. It creates significant dangers both for offenders and those whom
they encounter. As we said in State v. Gear, “[t]he State has a strong interest in
protecting its inhabitants against intoxicated persons who harass other citizens and
do violence both to themselves and to others.” No. 08-1620, 2009 WL 3086587,
at *5 (Iowa Ct. App. Sept. 17, 2009). This interest is magnified when dealing with
repeat offenders like Muligande. “Recidivism has long been recognized as a
legitimate basis for increased punishment” because, among other things, the State 5
has “a valid interest in deterring and segregating habitual criminals.” Ewing, 538
U.S. at 25 (citation omitted).
We next consider the “severity” of Muligande’s punishment. Wickes, 910
N.W.2d at 572. We do not find his sentence to be “so lengthy” as to raise
constitutional concerns. Bruegger, 773 N.W.2d at 873. Also, it bears emphasis
that Muligande did not receive a flat sentence. Rather, he was sentenced to an
indeterminate term with no mandatory minimum. This means he is immediately
eligible for parole. See State v. Propps, 897 N.W.2d 91, 101 (Iowa 2017). His
“behavior in prison” will have an impact on when parole will be available. See id.
In short, we find “the severity of the sentence” imposed on Muligande is not
“grossly disproportionate” to the “gravity” of his crimes. Wickes, 910 N.W.2d at
572. “No further analysis is required.” Id.
We conclude Muligande’s sentence does not violate the Eighth Amendment
to the U.S. Constitution or article I, section 17 of the Iowa Constitution. We affirm.
AFFIRMED.
Potterfield, P.J., concurs; Doyle, J., concurs specially. 6
DOYLE, Judge (concurring specially)
Although the record clearly shows Muligande is no Otis Campbell, 1 two
years’ imprisonment for public intoxication is stunning. Iowa may have had some
of the toughest public intoxication laws and harshest penalties among all states, 2
but those are public-policy decisions for the legislature to make. “[W]e owe
substantial deference to the penalties the legislature has established for various
crimes.” State v. Harrison, 914 N.W.2d 178, 204 (Iowa 2018) (quoting State v.
Oliver, 812 N.W.2d 636, 650 (Iowa 2012)). The majority has the law right and I am
duty-bound to concur.
1 Mayberry’s affable town drunk who appeared in episodes of CBS’s TV sitcom The Andy Griffith Show from 1960 to 1967. 2 I note that second and subsequent public intoxication offenses are no longer subject to the increased penalties. Section 123.91 was recently amended to except public intoxication convictions from increased penalties for second and subsequent alcohol related convictions. See 2019 Iowa Acts ch. 140, § 42. At the time Muligande was convicted section 123.91 (2018) provided that a second public-intoxication conviction was a serious misdemeanor subject to imprisonment not to exceed one year under section 903.1(1)(b). A third or subsequent conviction was an aggravated misdemeanor subject to imprisonment not to exceed two years under section 903.1(2). After July 1, 2019, a public intoxication offense, whether first, second, or subsequent, is a simple misdemeanor subject to imprisonment not to exceed thirty days. Iowa Code §§ 123.46(2), 903.1(1)(a) (Supp. 2019).