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IN THE COURT OF APPEALS OF IOWA No. 0-786 / 10-0099 Filed December 22, 2010

MICHAEL LEE CARGILL, JR., Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, James E. Kelley, Judge. Michael Cargill appeals from the district court's denial of his application for postconviction relief. However, on appeal he abandons the claims made and ruled upon in his application for postconviction relief and argues that the district court imposed illegal life without parole sentences on his convictions for murder and kidnapping in violation of the federal and state constitutional provisions against cruel and unusual punishment. APPEAL DISMISSED. Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant Attorney General, Michael J. Walton, County Attorney, and Rob Cusack, Assistant County Attorney, for appellee. Considered by Eisenhauer, P.J., and Potterfield and Doyle, JJ. Tabor, J., takes no part.

2 POTTERFIELD, J. On October 4, 2004, Michael Cargill, Jr. was sentenced after jury verdicts of guilty of murder in the first degree in violation of Iowa Code section 707.2(1), (2) (2003) and kidnapping in the first degree in violation of Iowa Code sections 710.1 and 710.2--crimes he committed at age sixteen.1 The district court

sentenced Cargill to the mandatory life in prison without parole for both the murder and kidnapping convictions. Cargill filed a direct appeal, which was dismissed as frivolous. On

October 24, 2006, he filed a form petition for postconviction relief. He filed an amended application for postconviction relief on November 13, 2008. After an evidentiary hearing, the district court denied Cargill's application for

postconviction relief in a decision filed December 30, 2009. Cargill now argues for the first time on appeal that the sentencing court imposed illegal sentences in violation of the federal and state constitutional provisions against cruel and unusual punishment when it sentenced him to life in prison without parole for offenses he committed at age sixteen. Cargill does not raise this argument in the context of an ineffective-assistance-of-counsel claim, but rather a direct challenge to the sentences imposed. The State asserts that this claim must be litigated in the first instance in the district court. Therefore the State urges us to dismiss Cargill's present appeal and allow Cargill to file a motion to correct an illegal sentence at the district court level.

1

Cargill was also adjudged guilty of robbery in the first degree, but the robbery sentence is not at issue on appeal.

3 In State v. Bruegger, 773 N.W.2d 862, 871

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