                IN THE SUPREME COURT, STATE OF WYOMING

                                         2017 WY 34

                                                            OCTOBER TERM, A.D. 2016

                                                                    March 22, 2017

KENNETH DALE NICODEMUS,

Appellant
(Defendant),

v.                                                   S-16-0186

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Sublette County
                        The Honorable Marvin L. Tyler, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender Tina N.
      Olson, Chief Appellate Counsel*; and Eric M. Alden, Senior Assistant Appellate
      Counsel. Argument by Mr. Alden.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Christyne Martens, Senior Assistant Attorney General; and
      Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.

*Order Allowing Withdrawal of Counsel entered on September 1, 2016.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] In 1992, Kenneth Nicodemus pled guilty to two counts of first degree murder and
one count of larceny for crimes he committed when he was eighteen years old. He was
sentenced to two consecutive sentences of life imprisonment on the murder counts and
eight to ten years in prison on the larceny count, to run consecutive to the life sentences.
In 2014, Mr. Nicodemus filed a Rule 35 motion to correct an illegal sentence, contending
his life sentences violated the federal constitution’s protection against cruel and unusual
punishment and the Wyoming constitution’s protection against cruel or unusual
treatment. The district court denied the Rule 35 motion, and we affirm.

                                         ISSUES

[¶2]   Mr. Nicodemus states the issue on appeal as:

              I.     Mr. Nicodemus committed two murders when he was
              eighteen years of age. At that time the age of majority in
              Wyoming was nineteen. Does the imposition of a sentence of
              life without parole in that circumstance violate the
              constitutional prohibition of cruel or unusual punishment?

The State responds with two issues, which it frames as follows:

              I.    Res judicata bars consideration of issues that could
              have been, but were not, brought in a prior proceeding.
              Kenneth Nicodemus did not appeal his convictions and now
              argues that his life sentences violate the United States and
              Wyoming Constitutions. Does res judicata bar consideration
              of his arguments, twenty-four years after his sentences
              became final?

              II.    A court may not impose a sentence that violates the
              constitution or statute. In 1992, the district court sentenced
              Nicodemus to two life sentences for murdering two people
              when he was eighteen years old. Does a life sentence for an
              adult who commits multiple murders violate the United States
              or Wyoming Constitutions?

                                         FACTS

[¶3] Mr. Nicodemus challenges his sentence for crimes that occurred at the Ponderosa
Lodge near Pinedale, Wyoming. For some time in 1991, Mr. Nicodemus worked at the
Ponderosa Lodge for its owners, Gary and Sue Weiss. On April 6, 1992, after that


                                              1
employment had concluded, Mr. Nicodemus returned to the lodge. He drove to a
location about a mile and a half from the lodge, parked his vehicle, and walked the
remaining distance. Once there, he waited for the Weisses to leave and then broke into
the lodge to check the register for cash. Finding no cash in the register, Mr. Nicodemus
then walked back to a travel trailer on the property and knocked one of its doors off the
hinges, hoping to find valuables in the trailer. He found a coin collection, some cash, and
a .44 magnum revolver, which he loaded and placed in the small of his back.

[¶4] As Mr. Nicodemus continued to look through the trailer, he heard the Weisses pull
into their property. The Weisses looked into the trailer, and when Mr. Weiss saw Mr.
Nicodemus, he threatened him. Mr. Nicodemus then ran out the trailer’s back door and
down a road. Mr. Weiss fired a gun, and Mr. Nicodemus returned fire, hitting Mr. Weiss.
Mr. Weiss then retreated to the other side of the trailer, and Mr. Nicodemus followed.
When Mr. Nicodemus reached Mr. Weiss, he was with Mrs. Weiss, and neither had a
weapon. Mr. Nicodemus shot them both, but each was able to get away from him. He
caught up to Mr. Weiss first, and while Mr. Weiss was on his knees, wheezing, Mr.
Nicodemus shot him in the back of the head. He then located Mrs. Weiss and shot her
multiple times.

[¶5] Mr. Nicodemus took the bodies of Mr. and Mrs. Weiss about three-quarters of a
mile from the lodge and pushed them over an embankment to delay their discovery.
When leaving the property, Mr. Nicodemus stole the Weiss truck, as well as a coin
collection, four rifles, a shotgun, a radio, and a purse containing fifty dollars.

[¶6] Mr. Nicodemus was located and arrested in Rock Springs, where he had made
statements to witnesses concerning his killing of the Weisses, and was charged with two
counts of first degree murder and one count of larceny. On May 27, 1992, Mr.
Nicodemus pled guilty to the three charges and was sentenced to a term of life
imprisonment for each murder, to be served consecutively, and a term of eight to ten
years for the larceny count, to be served consecutive to the two life sentences.

[¶7] On December 19, 1992, Mr. Nicodemus, acting pro se, filed a letter with the
district court, which the court treated as a motion for sentence reduction. Through that
motion, Mr. Nicodemus expressed dissatisfaction with the legal representation that led to
his guilty plea and asked that the court order his sentences to run concurrently because of
his youth and because he acted in self defense when he killed the Weisses. The district
court denied the motion.

[¶8] On November 21, 2014, Mr. Nicodemus filed a pro se Rule 35 motion to correct
an illegal sentence. Through that motion, Mr. Nicodemus argued that his sentence was
effectively a life sentence without the possibility of parole and that because he was a
juvenile at the time he committed the crimes, such a sentence violates the Wyoming and
federal constitutional protections against cruel and/or unusual punishment. On May 5,


                                             2
2016, the district court entered an order denying Mr. Nicodemus’ Rule 35 motion. Mr.
Nicodemus thereafter timely filed a timely notice of appeal to this Court.

                              STANDARD OF REVIEW

[¶9] Whether a challenge is barred by res judicata is a question of law that we review
de novo. Bird v. State, 2015 WY 108, ¶ 9, 356 P.3d 264, 267 (Wyo. 2015) (citing
Ferguson v. State, 2013 WY 117, ¶ 8, 309 P.3d 831, 833 (Wyo. 2013)). Whether a
sentence is illegal is likewise a question of law that we review de novo. Barela v. State,
2016 WY 68, ¶ 6, 375 P.3d 783, 786 (Wyo. 2016) (citing Endris v. State, 2010 WY 73,
¶ 13, 233 P.3d 578, 581 (Wyo. 2010)).

                                     DISCUSSION
A.    Res Judicata

[¶10] The State contends that because Mr. Nicodemus bases his present challenge to his
life sentences solely on the Wyoming Constitution, and not on intervening federal or state
precedent, he could have made the same challenge through a direct appeal or in his first
motion for a sentence reduction. Because Mr. Nicodemus did not do so, the State argues
his challenge is barred by the doctrine of res judicata.

[¶11] Res judicata bars litigation of issues that were or could have been determined in a
prior proceeding, and while a court may correct an illegal sentence under W.R.Cr.P. 35(a)
at any time, the bases for correcting the sentence remain subject to res judicata. Bird, ¶
10, 356 P.3d at 267 (citing Dax v. State, 2012 WY 40, ¶¶ 9-10, 272 P.3d 319, 321 (Wyo.
2012)). In determining whether res judicata bars a challenge, we consider:

             (1) identity in parties; (2) identity in subject matter; (3) the
             issues are the same and relate to the subject matter; and (4)
             the capacities of the persons are identical in reference to both
             the subject matter and the issues between them.

Poignee v. State, 2016 WY 42, ¶ 12, 369 P.3d 516, 518 (Wyo. 2016) (quoting
Kurtenbach v. State, 2013 WY 80, ¶ 6, 304 P.3d 939, 940–41 (Wyo. 2013)).

[¶12] Based on res judicata, this Court may decline to consider an issue if a party fails
to show good cause why that issue was not raised at an earlier opportunity. Palmer v.
State, 2016 WY 46, ¶ 6, 371 P.3d 156, 158 (Wyo. 2016) (quoting Bird, ¶ 10, 356 P.3d at
267). “However, ‘our rulings make clear that the application of the doctrine is
discretionary.’” Palmer, ¶ 7, 371 P.3d at 158 (quoting Patterson v. State, 2013 WY 153,
¶ 11, 314 P.3d 759, 762 (Wyo. 2013)).




                                             3
[¶13] Since Mr. Nicodemus was sentenced in 1992, the United States Supreme Court
has issued a series of decisions pertaining to the Eighth Amendment’s restrictions on the
sentencing of juvenile offenders. See Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455,
183 L.Ed. 2d 407 (2012) (juvenile offender may not be subjected to mandatory sentence
of life without possibility of parole for homicide conviction); Graham v. Florida, 560
U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (juvenile offender may not be sentenced
to life without possibility of parole for non-homicide conviction); Roper v. Simmons, 543
U.S. 551, 125 S.Ct. 1183, 161 L.Ed. 2d 1 (2005) (juvenile offender may not be sentenced
to death). In each of these decisions, the Court defined a juvenile as one who was under
the age of eighteen at the time he committed his crimes. Miller, 567 U.S. ___, 132 S.Ct.
at 2460; Graham, 560 U.S. at 74-75, 130 S.Ct. at 2030; Roper, 543 U.S. at 578, 125 S.Ct.
at 1200.

[¶14] The State acknowledges these changes but contends that Mr. Nicodemus is not
seeking application of the federal restrictions and is instead asking the Court to adopt
separate state constitutional protections—protections that could have been asserted in an
earlier proceeding, such as a direct appeal. The State’s view of Mr. Nicodemus’
challenge to his life sentence is understandable given the way Mr. Nicodemus framed the
headings for his arguments.1 Nonetheless, while the argument headings suggest purely
state constitutional claims, the arguments themselves present a two-pronged challenge,
one prong being a federal challenge and the other a state constitutional challenge. In his
first argument, Mr. Nicodemus contends that Miller applies and should not be read to set
a bright line rule that only an offender under the age of eighteen may be considered a
juvenile for purposes of the Eighth Amendment protections. In this argument, he
contends that Miller extends its protections to an offender who was either under the age
of eighteen when he committed his offense or was defined by state law as a juvenile
when he committed his offense. In his second argument, Mr. Nicodemus argues that the
Wyoming constitutional prohibition on cruel or unusual punishment is more protective
than its federal counterpart, and his life sentences violated that prohibition.

[¶15] With respect to the application of Miller, Mr. Nicodemus could not have raised
that issue by direct appeal or in his earlier motion to reduce his sentence, given that
Miller was not decided until 2012. With respect to his state constitutional challenge, the
State is correct that Mr. Nicodemus arguably could have asserted that challenge by direct
appeal or in his motion to reduce his sentence. There is no question, however, that
federal constitutional restrictions on the sentencing of juvenile offenders have changed
significantly since Mr. Nicodemus was sentenced in 1992. While Mr. Nicodemus does

1
 The heading for Mr. Nicodemus’ first argument reads: “The Wyoming Constitution’s bar on cruel or
unusual punishment adopts the Miller standard prohibiting mandatory life without parole sentences
against children and applies the Wyoming statutory determination of the age of majority to determine
who is a minor.” The heading for his second argument reads: “The protections of the Wyoming
Constitution against cruel or unusual punishment are broader than the Eighth Amendment and prohibit
punishments based on retribution and juvenile life without parole.”


                                                 4
not base his challenge directly on those federal precedents, he does extrapolate from them
in making his argument. Under these circumstances, we will exercise our discretion to
consider his challenge even though it could have been brought in an earlier proceeding.

B.      Legality of Mr. Nicodemus’ Life Sentences

[¶16] Mr. Nicodemus was sentenced to two consecutive life sentences for the murder of
the Weisses, which was effectively a sentence of life without the possibility of parole.2
We will address first Mr. Nicodemus’ argument that his life sentences violated Miller and
then turn to Mr. Nicodemus’ state constitutional arguments.

1.      Miller Sentencing Requirements

[¶17] In Miller, the Supreme Court held that in the sentencing of a juvenile offender for
a homicide offense, the Eighth Amendment prohibits the imposition of a mandatory
sentence of life imprisonment without the possibility of parole. Miller, 567 U.S. ___, 132
S.Ct. at 2475. The Court did not foreclose the sentence altogether but instead held that
the sentencing court “must have the opportunity to consider mitigating circumstances
before imposing the harshest possible penalty for juveniles.” Id. We have summarized
the Miller requirement as follows:

                       In sum, Miller requires an individualized sentencing
                hearing for every juvenile convicted of first-degree murder at
                which the sentencing court must consider the individual, the
                factors of youth, and the nature of the homicide in
                determining whether to order a sentence that includes the
                possibility of parole. Miller does not guarantee the possibility
                of parole for a convicted juvenile homicide offender, but
                Miller does mandate that a meaningful review and
                consideration be afforded by the sentencing court.

Bear Cloud II, ¶ 44, 294 P.3d at 47.

[¶18] In announcing its ruling in Miller, the Supreme Court held that the requirement to
consider the mitigating circumstance of an offender’s youth applies when the offender is
under the age of eighteen: “We therefore hold that mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’” Miller, 567 U.S. ___, 132 S.Ct. at
2460. In Bear Cloud II, we applied Miller and accepted the age of eighteen as the line
2
  We have recognized that the sentence of life imprisonment according to law, which allows an offender
to be eligible for parole only if the governor commutes the sentence to a term of years, is the functional
equivalent of life without the possibility of parole. Bear Cloud v. State (Bear Cloud II), 2013 WY 18,
¶ 33, 294 P.3d 36, 45 (Wyo. 2013).


                                                    5
where an offender is treated differently for purposes of imposing a sentence of life
without the possibility of parole:

                    We conclude as well, based upon Solem, Graham, and
             Miller, that Wyoming’s current sentencing and parole scheme
             for persons convicted of first-degree murder, which murder
             occurred before those persons were 18 years of age, violates
             the Eighth Amendment because it has the practical effect of
             mandating life in prison without the possibility of parole. See
             Miller, 567 U.S. at ––––, 132 S.Ct. at 2469.

Bear Cloud II, ¶ 34, 294 P.3d at 45 (emphasis added); Poitra v. State, 2016 WY 20, ¶ 23,
368 P.3d 284, 289 (Wyo. 2016)) (“Miller, on the other hand, directly requires
consideration of a meaningful opportunity to parole for those whose crimes were
committed when they were under the age of eighteen.”).

[¶19] Despite what appears to be a clear holding by the U.S. Supreme Court that
eighteen is the cutoff for imposing the Miller protections, Mr. Nicodemus urges this
Court to hold that the cutoff age may vary. He contends that the Supreme Court did not
intend to impose a bright line rule extending the Miller protections to only those
offenders under the age of eighteen and instead should be read to extend its protections to
an offender who was either under the age of eighteen when he committed his offense or
was defined by state law as a juvenile when he committed his offense. He argues that the
Supreme Court’s enunciation of a rule governing offenders under eighteen was focused
on societal norms drawn from states, and because it is the state that should determine an
offender’s culpability based on maturity, the rule was never intended to supplant a state’s
ability to choose a more protective age of majority.

[¶20] We do not disagree that a state has the authority to set its own age of majority.
Nor do we disagree that a state may announce a rule that is more protective than that
announced by the Supreme Court. Norgaard v. State, 2014 WY 157, ¶ 24, 339 P.3d 267,
274 (Wyo. 2014) (states required to ensure their laws provide at least the protection set
by federal requirements but may impose greater protections). We do disagree, however,
that the Supreme Court in Miller intended to announce an Eighth Amendment protection
that varied depending on state law.

[¶21] In requiring individualized consideration of a juvenile offender’s youth before
sentencing him to life in prison without the possibility of parole, the Miller Court
followed the reasoning of Roper and Graham. Miller, 567 U.S. ___, 132 S.Ct. at 2465-
69. The Court held its ruling applied to juvenile offenders under eighteen, which was
also the age at which the rulings in Graham and Roper imposed their corresponding
protections. Miller, 567 U.S. ___, 132 S.Ct at 2460; Graham, 560 U.S. at 74-75, 130
S.Ct. at 2030; Roper, 543 U.S. at 574, 125 S.Ct. at 1197-98. Roper was the first in this


                                             6
line of cases, and it was in that case that the Court set eighteen as the age that
distinguishes a juvenile offender from an adult offender for sentencing purposes. The
Court reasoned:

                      Drawing the line at 18 years of age is subject, of
             course, to the objections always raised against categorical
             rules. The qualities that distinguish juveniles from adults do
             not disappear when an individual turns 18. By the same
             token, some under 18 have already attained a level of
             maturity some adults will never reach. For the reasons we
             have discussed, however, a line must be drawn. The plurality
             opinion in Thompson drew the line at 16. In the intervening
             years the Thompson plurality’s conclusion that offenders
             under 16 may not be executed has not been challenged. The
             logic of Thompson extends to those who are under 18. The
             age of 18 is the point where society draws the line for many
             purposes between childhood and adulthood. It is, we
             conclude, the age at which the line for death eligibility ought
             to rest.

Roper, 543 U.S. at 574, 125 S.Ct. at 1197-98 (emphasis added).

[¶22] Plainly, the Court in Roper intended to and did draw a line between juvenile and
adult offenders for purposes of Eighth Amendment protections. It extended Eighth
Amendment protections for juvenile offenders to those under the age of eighteen—not to
those under the age of eighteen as well as any offender otherwise defined as a juvenile
under state law.

[¶23] To be sure, as we noted above, a state may choose to set a more protective line
between juvenile and adult offenders. Notably, however, when Wyoming enacted
legislation to bring its life imprisonment statutes into compliance with the Miller
requirements, it did not choose a more protective line. It extended the sentencing
protections only to those who were under the age of eighteen at the time of their offense:

             Any sentence other than a sentence specifically designated as
             a sentence of life imprisonment without parole is subject to
             commutation by the governor. A person sentenced to life
             imprisonment for an offense committed after the person
             reached the age of eighteen (18) years is not eligible for
             parole unless the governor has commuted the person’s
             sentence to a term of years. A person sentenced to life
             imprisonment for an offense committed before the person
             reached the age of eighteen (18) years shall be eligible for


                                             7
              parole after commutation of his sentence to a term of years or
              after having served twenty-five (25) years of incarceration,
              except that if the person committed any of the acts specified
              in W.S. 7-13-402(b) after having reached the age of eighteen
              (18) years the person shall not be eligible for parole.

Wyo. Stat. Ann. § 6-10-301(c) (LexisNexis 2015); see also Poitra, ¶ 10, 368 P.2d at 287,
n.3 (noting Wyo. Stat. § 6-10-301(c) was legislative extension of Miller protections).

[¶24] Mr. Nicodemus nonetheless asserts that although Wyoming law may not currently
be more protective than the line drawn by the Supreme Court, it was more protective in
1992 when he committed his offenses. In support of this assertion, he points to the fact
that in 1992, Wyoming’s statutory age of majority was nineteen. From this, he contends
that since he was only eighteen years old and had not reached the age of majority when
he committed his offenses in 1992, he should be entitled to the Miller sentencing
protections extended to juvenile offenders. We disagree.

[¶25] It is correct that in 1992 the Wyoming statutory age of majority was nineteen. The
governing statute read:

                      Upon becoming nineteen (19) years of age, an
              individual reaches the age of majority and as an adult
              acquires all rights and responsibilities granted or imposed by
              statute or common law, except as otherwise provided by law.

Wyo. Stat. Ann. § 14-1-101(a) (Michie 1992 Cum. Supp.) (emphasis added).

[¶26] At that same time, however, the law governing the penalty for first degree murder,
provided:
                    A person convicted of murder in the first degree shall
             be punished by death or life imprisonment according to law,
             except that no person shall be subject to the penalty of death
             for any murder committed before the defendant attained the
             age of sixteen (16) years.

Wyo. Stat. Ann. § 6-2-101(b) (Michie 1992 Cum. Supp.); see also 1989 Wyo. Sess.
Laws, ch. 171, p. 293.

[¶27] When these statutes are read together, it is clear that while the legislature in 1992
defined nineteen as the age of majority for a number of purposes, it did not do so for
purposes of determining criminal culpability. See also Wyo. Stat. Ann. § 14-6-203(f)(iii)
(Michie 1985 Cum. Supp.) (giving prosecuting attorney discretion to commence criminal
proceedings in either juvenile or district court where offender has attained the age of


                                             8
seventeen). For purposes of culpability and responsibility for the crime of first degree
murder, in particular, the legislature plainly did not consider an eighteen-year-old
offender to be a child or a juvenile offender.

[¶28] Mr. Nicodemus had reached the age of eighteen when he committed his offenses
in 1992, and he therefore is not entitled to the Miller sentencing protections. Nothing in
the 1992 law defining the age of majority changes that.

2.     Sentencing Protections under the Wyoming Constitution

[¶29] Mr. Nicodemus next contends that Wyoming’s constitutional protection against
cruel or unusual punishment is broader than its federal counterpart, and Wyoming’s 1992
penal code violated those protections. In particular, he argues Wyo. Stat. Ann. § 6-2-
101(b), as it read in 1992, “mandated a sentence of life without parole for a person
defined as a child by the state legislature,” and was therefore unconstitutional. This being
a constitutional challenge to a statute, we consider it in the following light:

                      In reviewing a constitutional challenge to a statute, we
              presume the statute is constitutional, and any doubt is
              resolved in favor of the statute’s constitutionality. Bear Cloud
              v. State, 2013 WY 18, ¶ 15, 294 P.3d 36, 41 (Wyo.2013);
              Krenning v. Heart Mountain Irrigation Dist., 2009 WY 11,
              ¶ 33, 200 P.3d 774, 784 (Wyo.2009). The party challenging
              the constitutionality of a statute bears the burden of proving
              the statute is unconstitutional. Id. “That burden is a heavy one
              ‘in that the appellant must clearly and exactly show the
              unconstitutionality beyond any reasonable doubt.’” Id.
              (quoting Cathcart v. Meyer, 2004 WY 49, ¶ 7, 88 P.3d 1050,
              1056 (Wyo.2004)). Courts have a duty to uphold the
              constitutionality of statutes if at all possible, but it is equally
              imperative that we declare legislative enactments invalid
              when they transgress the Wyoming Constitution. Hoem v.
              State, 756 P.2d 780, 782 (Wyo.1988).

Kordus v. Montes, 2014 WY 146, ¶ 6, 337 P.3d 1138, 1139-40 (Wyo. 2014).

[¶30] At the outset, we reject the premise that in 1992 Mr. Nicodemus was statutorily a
“child” for sentencing purposes. As noted above, the 1992 statute defining the age of
majority generally did not purport to draw the line between child and adult for all
purposes, and the legislature assigned criminal responsibility, particularly for the offense
of first degree murder, at a younger age. The question we must answer, then, is not
whether the Wyoming Constitution prohibits sentencing a “child” to life in prison without



                                               9
the possibility of parole, but rather whether it prohibits sentencing an eighteen-year-old to
life without the possibility of parole.

[¶31] In arguing that it does, Mr. Nicodemus cites to article 1, section 14 of the
Wyoming Constitution, contending that its bar against cruel or unusual punishment must
be read in conjunction with other provisions of article 1: section 5 (prohibiting
imprisonment for debt); section 15 (penal code to be framed on principles of reformation
and prevention); and section 16 (requiring humane treatment of prisoners). 3 While Mr.
Nicodemus cites to all of these provisions, his primary argument is that his sentence is
cruel or unusual under article 1, section 14 because it is inconsistent with the principles of
reformation and prevention mandated by section 15.

[¶32] In arguing his state constitutional protections, Mr. Nicodemus has framed his
analysis such that it complies with the requirements this Court has established for
assertion of an independent state constitutional protection. See O’Boyle v State, 2005
WY 83, ¶ 24, 117 P.3d 401, 408 (Wyo. 2005) (citing Saldana v. State, 846 P.2d 604, 622
(Wyo. 1993)) (listing criteria for analyzing state constitutional claim). We conclude,
however, that Mr. Nicodemus has not met his substantial burden of proving the
unconstitutionality of the 1992 statute under which he was sentenced.

[¶33] The Wyoming Constitution directs that “[t]he penal code shall be framed on the
humane principles of reformation and prevention.” Wyo. Const. art. 1, § 15. In arguing
that it is cruel or unusual to sentence an eighteen-year-old offender to life without the
possibility of parole, Mr. Nicodemus starts from a premise that such a sentence is
fundamentally at odds with the article 1, section 15 principles. This is a premise our
Court has already rejected:

                       As the state points out, this court effectively answered
                the question raised here by Castle when it held that the death
                penalty provisions do not violate Wyo. Const. art. 1, § 15.
                Hopkinson v. State, 664 P.2d 43, 64 (Wyo.1983), cert. denied,
                464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246. If the death
                penalty, which results in the ultimate irrevocable separation
                from society, is seen “as framed on the human[e] principles of
                reformation and prevention,” then a life sentence without
                possibility of return to society passes muster as well. Id.


3
 The State contends that the Court should not address Mr. Nicodemus’ arguments concerning these other
provisions because they were not raised below. Mr. Nicodemus did, however, raise his state
constitutional challenge below and that claim was generally the same as his claim on appeal: his sentence
violates Wyoming’s more protective bar against cruel or unusual sentences. His reference to the other
provisions, and in particular article 1, section 15, simply expands on that analysis, and we will therefore
consider the argument.


                                                     10
Castle v. State, 842 P.2d 1060, 1061 (Wyo. 1992).

[¶34] We also reject Mr. Nicodemus’ contention that article 1, section 15 limits the
objectives that may be served by a sentencing statute and precludes objectives such as
retribution, deterrence, and removal from society. Our decisions have, in fact, repeatedly
recognized the validity of such objectives. See Mendoza v. State, 2016 WY 31, ¶ 18, 368
P.3d 886, 893 (Wyo. 2016) (recognizing rehabilitation, punishment, deterrence, and
removal as appropriate sentencing purposes); Croy v. State, 2014 WY 111, ¶ 9, 334 P.3d
564, 568 (Wyo. 2014) (same); Cohee v. State, 2005 WY 50, ¶ 15, 110 P.3d 267, 272
(Wyo. 2005) (retribution and deterrence appropriate considerations in imposition of
punishment); Wright v. State, 670 P.2d 1090, 1093 (Wyo. 1983) (recognizing sentencing
objectives of: “(1) rehabilitation, (2) punishment (specific deterrence and retribution), (3)
example to others (general deterrence), and (4) removal from society (incapacitation or
protection of the public)”).

[¶35] Mr. Nicodemus acknowledges this precedent but contends that the decisions were
wrong in so holding. He argues the framers of the Wyoming Constitution made clear
their intent to limit the objectives of sentencing in a case decided when two of the
constitution’s authors were members of this Court: State v. Bd. of Com’rs of Laramie
County, 55 P. 451 (Wyo. 1898). We find no such intent reflected in that decision.

[¶36] Laramie County involved a tax dispute between the State and Laramie County
concerning, among other things, whether prison property was taxable or whether it was
exempt from taxation under the exemption applicable to charitable institutions. Laramie
County, 55 P. at 455-56. In deciding the prison was a charitable institution, the Court
stated:

              A writer on political science has said on this subject: “Thus it
              may be seen that the modern prison system, at every stage of
              its evolution, revolves around one central thought,-the
              possibility of reformation; that the reformation of the prisoner
              is its one animating purpose; that the hope of reformation is
              the motive to which it owes its origin; and posterity will
              pronounce judgment upon it from this one point of view.” 3
              Lalor, Cyc. Pol. Sc. p. 357. Construing the term “state
              charitable institution” in the light of the constitutional
              provisions above mentioned, which require that the Penal
              Code shall be framed upon the humane principles of
              reformation and prevention, and as well according to the
              present-day notions of the purpose of confinement and
              treatment of prisoners, it is impossible to escape the
              conclusion that it cannot be confined to an institution which is
              designed merely for the care of the poor and helpless, or the


                                              11
              treatment of those suffering from mere physical infirmities.
              Its meaning and intent are broader than that, and we are
              convinced that our penitentiary is reasonably within its
              purport in the sense in which it is employed.

Laramie County, 55 P. at 459-60.

[¶37] Given the context of this decision, it cannot be given the weight Mr. Nicodemus
urges. The Court was deciding a tax dispute that concerned the nature and objectives of
the penitentiary itself. The Court did not have before it a double homicide like that in this
case, and it certainly did not announce a rule that the sole objective of sentencing for
violent felonies must be reformation or rehabilitation and the offender’s eventual return
to society. Moreover, territorial law at the time the constitution was written limited the
sentencing options for homicide to either the death penalty or life imprisonment. See
Johnson v. State, 2003 WY 9, ¶ 37, 61 P.3d 1234, 1249 (Wyo. 2003) (noting life
imprisonment for homicide was sentence from territorial laws into statehood and “is a
time honored and entirely humane method of punishing that crime”); Hopkinson v. State,
664 P.2d 43, 64 (Wyo. 1983) (noting that when Wyoming entered statehood, it carried
forward “territorial capital crime of murder,” the penalty for which was death penalty or
life imprisonment). If it were truly the intent of our constitutional framers to make
reformation or rehabilitation the sole objectives of sentencing, effectively barring life
imprisonment or the death penalty, we would expect to see a clear statement to that effect
in the constitution. Article 1, section 15 provides no such clear statement.

[¶38] Mr. Nicodemus has not met his burden of proving that the 1992 version of Wyo.
Stat. Ann. § 6-2-101(b) violates article 1, section 14’s protection against cruel or unusual
punishment, or the requirements of article 1, section 15.

                                     CONCLUSION

[¶39] The Eighth Amendment sentencing protections announced in Miller v. Alabama,
567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) extend only to offenders under the
age of eighteen. Because Mr. Nicodemus was eighteen years old when he committed his
offenses in 1992, and his sentence does not violate state law, we uphold the district
court’s denial of Mr. Nicodemus’ Rule 35 motion to correct an illegal sentence.
Affirmed.




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