               IN THE SUPREME COURT OF IOWA
                              No. 10–1751

                          Filed March 30, 2012


STATE OF IOWA,

      Appellee,

vs.

CHARLES JAMES DAVID OLIVER,

      Appellant.



      Appeal from the Iowa District Court for Guthrie County, Bradley

McCall, Judge.



      Appellant claims sentence of life in prison without parole for a

second conviction of sexual abuse in the third degree is cruel and

unusual punishment in violation of the State and Federal Constitutions.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, Mary L. Benton, County Attorney, and

Becky S. Goettsch, Assistant Attorney General, for appellee.
                                        2

ZAGER, Justice.

      Charles Oliver was convicted a second time of third-degree sexual

abuse in violation of Iowa Code sections 709.1 and 709.4(2)(b) (2009).

Oliver stipulated that he had a prior conviction for third-degree sexual

abuse under sections 709.1 and 709.4. Because of his prior conviction,

Oliver was guilty of a class “A” felony under the enhanced sentencing

provisions of section 902.14(1), and the district court accordingly
sentenced Oliver to life in prison without the possibility of parole. See

Iowa Code § 902.1 (requiring life without parole for class “A” felonies).

Oliver appealed, claiming the sentence of life without parole constituted

cruel and unusual punishment in violation of the Eighth Amendment of

the United States Constitution and article I, section 17 of the Iowa

Constitution. Oliver claims the statute is unconstitutional both on its

face and as applied to him. We retained jurisdiction, and we now affirm

Oliver’s sentence.

      I. Factual Background and Procedural History.

      On October 27, 2009, R.A., a thirteen-year-old girl, had an

argument with her mother.          R.A. called a close family friend, Bryan

Conley, who lived nearby to ask if she could spend the night. R.A. did
not have contact with her father, and according to Conley, R.A., and her

mother, Conley was a father figure to R.A.          Conley and R.A.’s mother

agreed that R.A. could spend the night at Conley’s residence. Conley’s

long-time friend, Charles Oliver, who was thirty-three years old at the

time, had been picked up earlier in the evening and spent the night at

the same house as Conley and R.A.1 The next morning, Conley and his
fiancée left the house, leaving Oliver and R.A. alone. While the two were

      1Oliver  and his wife were separated at the time, and Oliver had been removed
from his residence.
                                         3

alone, R.A. told Oliver that she liked him. They went to the basement

and had sex on Conley’s bed one or two times.              R.A. then fell asleep.

Prior to his leaving, Oliver gave R.A. his cell phone number.

       Around December 17, R.A.’s mother went through R.A.’s cell-

phone records and found several text messages between R.A. and Oliver.

R.A’s mother confronted Oliver about these calls and messages and

Oliver said, “I’m just her friend like Bryan [Conley].”             R.A.’s mother
reminded Oliver that R.A. was thirteen and he was thirty-three. Shortly

thereafter, R.A. told her mother about having sex with Oliver.                R.A.’s

mother then called the West Des Moines Police Department and reported

that Oliver was attempting to contact R.A. and may have sexually abused

her.

       Oliver was in the Polk County jail on an unrelated charge on

January 8, 2010.       While there, Oliver’s wife confronted him with the

voicemails R.A. had left for Oliver on his cell phone.                During this

telephone conversation, Oliver admitted having sex with R.A.2 On April

8, a warrant was issued for Oliver’s arrest, and he was placed in the

Guthrie County jail.

       Oliver was charged by trial information with two counts of third-
degree sexual abuse in violation of Iowa Code sections 709.1(3) and

709.4(2)(b).     The State subsequently dismissed one count of the

indictment. Trial commenced on September 8. At trial, Oliver denied

having sex with R.A.       On September 10, 2010, the jury found Oliver

guilty of sexual abuse in the third degree. Following the guilty verdict,

Oliver stipulated that he had a prior conviction for third-degree sexual


       2Oliver  later told another inmate that he had consensual sex with a thirteen-
year-old and that he did not understand why he would be sentenced to life without
parole for that offense.
                                     4

abuse in 2000.     Based upon this admission, the court entered its

judgment order finding Oliver guilty of the enhanced class “A” felony

under section 902.14.

       The sentencing hearing was conducted on October 18. According

to the presentence investigation report (PSI), Oliver claimed that his prior

conviction was for consensual sex with a fifteen-year-old victim.

However, the record reflects that the victim in the first case was fourteen,
and Oliver’s attorney stated this at sentencing.      At the time of this

conviction, Oliver would have been twenty-four years of age.         Oliver

claimed that the earlier victim had a fake ID and that he was residing

with her.   Oliver’s PSI also revealed an extensive criminal history in

addition to the sexual abuse convictions, including convictions for theft,

burglary, terrorism, supplying alcohol to a minor, criminal mischief,

driving while barred, domestic abuse assault, OWI first offense,

harassment of a public officer, and violation of the sex offender residency

law.   In the PSI, Oliver was entitled to provide his version of events.

According to Oliver, “the punishment really should be shared. Everyone

knows right from wrong.”

       At sentencing, the State made a record to support its contention
that life without parole was an appropriate sentence for Oliver and was

not cruel and unusual punishment.         The State pointed out Oliver’s

substantial prior criminal record, his failure to successfully complete his

probation resulting in revocation and imprisonment, and his failure to

complete court-ordered sex-offender treatment. As part of the sentencing

record, R.A. and her mother gave victim impact statements. R.A. noted

she had been in residential treatment for eight months as a result of the

incident and was continuing in therapy. She stated that Oliver molested

her and made her believe he loved her. She stated, “I was a 13-year–old
                                     5

little girl and he took my life away . . . .” R.A.’s mother also provided an

impact statement expressing how this had affected R.A.

      At sentencing, Oliver’s attorney minimized the offenses in the

record and claimed life without parole was “completely out of proportion”

to Oliver’s offense based on the facts of this case and his record.      He

argued the statute was designed “to capture sexual predators who are

constantly preying on children or rapists who can’t stop raping.” During
his allocution, Oliver stated that he did not think life in prison was

appropriate because he “didn’t put a gun to anyone’s head.” The district

court sentenced Oliver to life without parole pursuant to section 902.14.

Oliver appealed.

      On appeal, Oliver makes both a facial and as-applied challenge to

his sentence.   He claims the sentence constitutes cruel and unusual

punishment in violation of the Eighth Amendment to the United States

Constitution and article I, section 17 of the Iowa Constitution.

      II. Standard of Review and Preservation of Error.

      Oliver claims his sentence violates the State and Federal

Constitutions and is therefore illegal. We have held that “[a] defendant

may challenge an illegal sentence at any time.” State v. Bruegger, 773
N.W.2d 862, 869 (Iowa 2009); see also Iowa R. Crim. P. 2.24(5)(a).

Regarding our standard of review, “[t]his court reviews constitutional

claims de novo.” Bruegger, 773 N.W.2d at 869.

      Under section 902.14(1), “[a] person commits a class ‘A’ felony if

the person commits a second or subsequent offense involving any

combination of” second-degree sexual abuse, third-degree sexual abuse,

or lascivious acts with a child. Iowa Code § 902.14(1) A class “A” felon

faces a life sentence without the possibility of parole “unless the governor

commutes the sentence to a term of years.” Id. § 902.1. Oliver claims
                                      6

that section 902.14 is unconstitutional on its face and as applied to him.

Though Oliver cites to both the Eighth Amendment to the United States

Constitution and article I, section 17 of the Iowa Constitution, he

explicitly limits his challenge to the Iowa Constitution, claiming that the

Federal Constitution does not afford any additional protection.           See

Bruegger, 773 N.W.2d at 886 n.9. However, since Bruegger was decided,

the United States Supreme Court decided Graham v. Florida, ___ U.S.,
___, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), a case which sheds new

light on the federal framework for the cruel and unusual punishment

analysis.   In light of the recently clarified framework, we will analyze

Oliver’s claim under both the state and federal constitutional provisions

that prohibit cruel and unusual punishment.
     III. The Current State          of   Federal      Cruel   and   Unusual
Punishment Jurisprudence.
      It is important to clarify the terminology of cruel and unusual

punishment jurisprudence.        Following Graham, unlike other areas of

constitutional law, the federal lexicon for Eighth Amendment analysis no

longer includes the terms “facial challenge” and “as-applied challenge.”

Instead,    the   defendant   must   challenge   his   sentence   under   the

“categorical” approach or make a “gross proportionality challenge to [the]

particular defendant’s sentence.” See Graham, ___ U.S. at ___, 130 S. Ct.

at 2022, 176 L. Ed. 2d at 837.

      Oliver claims section 902.14 is “unconstitutional on its face.” To

support this claim, Oliver proceeds through a three-step analysis. Step

one requires us to compare the severity of the punishment to the gravity

of the crime to determine if the sentence leads to an inference of gross

disproportionality. Bruegger, 773 N.W.2d at 873. If this threshold step

is satisfied, steps two and three require the court to engage in an
                                       7

intrajurisdictional and interjurisdictional analysis to determine whether

the sentence is in fact grossly disproportionate and therefore a violation

of the Eighth Amendment. See Ewing v. California, 538 U.S. 11, 22, 30,

123 S. Ct. 1179, 1186, 1190, 155 L. Ed. 2d 108, 118, 123 (2003);

Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S. Ct. 2680, 2707, 115 L.

Ed. 2d 836, 871 (1991) (Kennedy, J., concurring in part and concurring

in judgment) (“A better reading of our cases leads to the conclusion that
intrajurisdictional and interjurisdictional analyses are appropriate only

in the rare case in which a threshold comparison of the crime committed

and   the    sentence      imposed   leads   to   an   inference   of   gross

disproportionality.”).    In Graham, the Supreme Court noted that “[t]he

approach in cases such as Harmelin and Ewing is suited for considering

a gross proportionality challenge to a particular defendant’s sentence

. . . .” Graham, ___ U.S. at ___, 130 S. Ct. at 2022, 176 L. Ed. 2d at 837

(emphasis added).        Thus, under the federal framework as clarified in

Graham, the three-step approach that Oliver seeks to use in his “facial”

challenge is actually the approach the United States Supreme Court

would take when evaluating a challenge to a particular defendant’s

sentence.
      The Supreme Court took a different approach when reviewing a

“categorical” challenge to a term-of-years sentence.         See id.     The

approach taken in Graham was based on the framework and analysis

developed in Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171

L. Ed. 2d 525 (2008), Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183,

161 L. Ed. 2d 1 (2005), and Atkins v. Virginia, 536 U.S. 304, 122 S. Ct.

2242, 153 L. Ed. 2d 335 (2002). Id. at ___, 130 S. Ct. at 2022–23, 176 L.

Ed. 2d at 837. Under the categorical approach, the question is whether

a particular sentencing practice violates the Eighth Amendment. Id. The
                                     8

Supreme Court looked to “objective indicia of national consensus”

regarding the use of a particular punishment, and also made an

independent analysis of constitutionality of the penalty based on “the

culpability of the offenders at issue in light of their crimes and

characteristics, along with the severity of the punishment in question.”

Id. at ___, 130 S. Ct. at 2023, 2026, 176 L. Ed. 2d at 837, 841.

      As part of this independent analysis, the Supreme Court “also
considers whether the challenged sentencing practice serves legitimate

penological goals.” Id. at ___, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841.

The Supreme Court has used the “categorical” approach to determine

that a death sentence is always cruel and unusual punishment for the

crime of child rape when the victim did not die or death was not

intended. See Kennedy, 554 U.S. at 412, 128 S. Ct. at 2646, 171 L. Ed.

2d at 534. It has also determined that the death penalty is always cruel

and unusual punishment when imposed on minors or the mentally

challenged. See Roper, 543 U.S. at 578–79, 125 S. Ct. at 1200, 161 L.

Ed. 2d at 28; Atkins, 536 U.S. at 321, 122 S. Ct. at 2252, 153 L. Ed. 2d

at 350.    In Graham, the Supreme Court applied the “categorical”

approach for the first time outside the context of the death penalty and
held that life without parole was an unconstitutional punishment for a

nonhomicide crime committed when the offender was under eighteen

years old. Graham, ___ U.S. at ___, 130 S. Ct. at 2022, 2034, 176 L. Ed.

2d at 837, 850.      We will now proceed to Oliver’s categorical and

particularized challenges under the federal framework.

      IV. Categorical Challenge Under the Federal Constitution.

      We start by noting that Oliver has not technically made a

“categorical challenge” to his sentence. However, he has argued that life

without parole for a violation of section 902.14 is unconstitutional “on its
                                      9

face.” We will treat this argument as a categorical challenge under the

federal framework. As noted above, categorical challenges to a particular

sentence can be based on either the characteristics of the crime or the

criminal.    In this case, Oliver argues life without parole is an

unconstitutional penalty for a violation of section 902.14. Following the

Supreme Court’s guidance in Graham, we will first look for evidence of a

national consensus against the use of this penalty for this crime. See
Graham, ___ U.S. at ___, 130 S. Ct. at 2023, 176 L. Ed. 2d at 837. We

will then move on to an independent analysis where we consider the

culpability of the offenders, as well as the severity of their crimes, and

whether legitimate penological goals are served by the punishment of life

without parole. See id. at ___, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841.

      A. A National Consensus.        Section 902.14 makes a second or

subsequent conviction of second-degree sexual abuse, third-degree

sexual abuse or lascivious acts with a child a class “A” felony. The acts

that trigger section 902.14 are acts contained in sections 709.3, 709.4,

709.8(1), and 709.8(2). Iowa Code § 902.14. Violations of section 709.3

include acts of sexual abuse where the person displays a dangerous

weapon, or uses or threatens force creating a substantial risk of death or
serious injury to any person; the victim is under the age of twelve, or the

person is aided or abetted by others and the sex act is committed by

force or against the will of the victim. Id. § 709.3. Violations of section

709.4 include sex acts done by force or against the will of the victim, sex

acts between persons not cohabiting as husband and wife, where the

victim is suffering from a mental defect which precludes giving consent,

or the victim is twelve or thirteen years of age, or the victim is fourteen or

fifteen years of age and the perpetrator is either a member of the same

household, is related to the victim, exploits a position of authority over
                                             10

the victim, or is four or more years older than the victim. Id. § 709.4(1–

2). Violations of section 709.4 also include performing a sex act on a

victim who is under the influence of a controlled substance and the

perpetrator knows or should have known the victim is incapable of

consent. Id. § 709.4(3). Violations of sections 709.8(1) and (2) involve

fondling a child or permitting or causing a child to fondle the perpetrator.

Id. § 709.8. The statute shows the legislature’s clear intent to deal with
repeat offenders more severely than first-time offenders.

       “[T]he     ‘clearest     and     most      reliable    objective      evidence      of

contemporary values is the legislation enacted by the country’s

legislatures.’ ” Graham, ___ U.S. at ___, 130 S. Ct. at 2023, 176 L. Ed. 2d

at 837 (citation omitted). As Oliver’s brief demonstrates, Iowa is not an

outlier by punishing a second or subsequent conviction of statutory rape

with life in prison. Arizona, California, Connecticut, Delaware, Indiana,

Iowa, Louisiana, Minnesota, Missouri, New Hampshire, New Mexico, New

York, Oklahoma, Pennsylvania, Washington, and Wisconsin, as well as

the federal government, authorize life in prison for those convicted of

sexual offenses against children on two or three separate occasions,

though not all these states also remove the possibility of parole.3                       As


       3See    18 U.S.C. § 3559(e)(1) (2006) (mandating life in prison for a second sex
conviction where a minor was the victim, unless death is imposed); Ariz. Rev. Stat. Ann.
§ 13-705(C), (D), (I) (West, Westlaw through Feb. 16, 2012 of 2d Reg. Sess.) (mandating
life without parole for at least thirty-five years for a third or subsequent conviction); Cal.
Penal Code § 667.71(West, Westlaw through ch. 7 of 2012 Reg. Sess.) (imposing a
sentence of twenty-five years to life for a second or subsequent conviction); Conn. Gen.
Stat. Ann. §§ 53a-35b, 53a-40(b), (i) (West, Westlaw through 2012 Supp.) (imposing a
life sentence on persistent sexual offenders and defining a life sentence as a sixty-year
sentence); Del. Code Ann. tit. 11, § 4205A(a) (authorizing a sentence of twenty-five years
to life for a second offense or any offense where the victim is less then fourteen years of
age) (West, Westlaw through 78 Laws 2011, chs. 1–203); Ind. Code Ann. §§ 35-42-4-
3(a)(1), 35-50-2-8.5(b) (West, Westlaw through 2011 1st Reg. Sess.) (making sexual
intercourse with a person under age fourteen a class “A” felony if the perpetrator is over
twenty-one and authorizing the prosecution to seek a life without parole (LWOP)
sentence for a second such offence); Iowa Code § 902.14; La. Rev. Stat. Ann.
                                               11

Oliver notes, in six states and the federal government, life without parole

(LWOP) is the exclusive penalty for certain repeat offenders.4 Three more
states     authorize        life   without     parole    in   certain   circumstances.5
Connecticut allows for parole for certain repeat sex offenders, but only

after they have served sixty years.6                    These statutes contain small

differences, such as the age of the victim or the age difference between

the victim and the offender. However, it is clear that Iowa is anything




§ 15:537(B) (West, Westlaw through 1st Ext. and Reg. Sess.) (mandating LWOP for a
third sexual offense); Minn. Stat. Ann. § 609.3455(4) (West, Westlaw through 2012 Reg.
Sess. through ch. 125) (mandating life with the possibility of parole if a person is
convicted of certain crimes and has two previous sex offenses); Mo. Ann. Stat.
§ 558.018(2)–(6) (West, Westlaw through 2011 1st Ext. Sess.) (mandating LWOP for a
second conviction of certain offenses and life with the possibility of parole for a second
conviction of other offenses); N.H. Rev. Stat. Ann. §§ 632-A:2, -A:10-a(III) (Westlaw
through ch. 272 of the 2011 Reg. Sess.) (mandating LWOP for those convicted of a third
offense); N.M. Stat. Ann. §§ 30-9-11, 31-18-25 (A), (B), (F) (West, Westlaw through 2011
legislation) (mandating life in prison for a second conviction of criminal sexual
penetration and not allowing parole if the victim of each offense is under thirteen); N.Y.
Penal Law § 70.07(4) (McKinney, Westlaw through L. 2011, chs. 1 to 604) (mandating a
sentence of twenty-five years to life for a second sexual assault against a child); Okla.
Stat. Ann. tit. 21, § 51.1a (West, Westlaw through ch. 385 of the 1st Reg. Sess. 2011)
(“Any person convicted of . . . sexual abuse of a child after having been convicted of . . .
sexual abuse of a child shall be sentenced to life without parole.”); 42 Pa. Cons. Stat.
Ann. §§ 9718.2(a)(2), 9795.1(a), (b) (West, Westlaw through 2011 Reg. Sess.) (mandating
life in prison for a third or subsequent conviction of a variety of sexual offenses); Wash.
Rev. Code Ann. §§ 9.94A.030, 9.94A.570, 9A.44.076 (West, Westlaw through 2011 2d
Spec. Sess & 2012 legislation effective through Mar. 6, 2012) (mandating LWOP for
persistent offenders and defining persistent offenders as those with a second conviction
for a variety of crimes); Wis. Stat. Ann. §§ 939.62(2m)(b)(2), (2m)(c), 948.02 (West,
Westlaw through 2011 Act 115) (mandating LWOP for persistent repeaters, which are
those are those convicted of a second serious child sex offense).
         4See
            18 U.S.C § 3559(e)(1); La. Rev. Stat. Ann. § 15:537(B); Minn. Stat. Ann.
§ 609.3455; N.H. Rev. Stat. Ann. §§ 632-A:2, -A:10-a(III); Okla. Stat. Ann. tit. 21,
§ 51.1a; Wash. Rev. Code Ann. §§ 9.94A.030, 9.94A.570, 9A.44.076; Wis. Stat. Ann.
§§ 939.62(2m)(b)(2), (2m)(c), 948.02.
         5Ind.
            Code Ann. § 35-50-2-8.5; Mo. Ann. Stat. § 558.018; N.M. Stat. Ann. §§ 30-
9-11, 31-18-25.
         6See    Conn. Gen. Stat. Ann. §§ 53a-35b, 53a-40(b), (i).
                                          12

but an “outlier” when it comes to the severe treatment of repeat sexual

offenders who target children, use force, or prey on the incapacitated.7
       The Supreme Court has also noted that “ ‘[t]here are measures of

consensus other than legislation[,]’ ” and, therefore, “[a]ctual sentencing

practices are an important part of the Court’s inquiry into consensus.”

Id. at ___, S. Ct. at 2023, 176 L. Ed. 2d at 838 (citation omitted). Neither

party has provided statistics of how many people are currently serving

life without parole sentences for repeat sex crimes.               Given the diverse

language contained in these statutes, and the fact that triggering crimes

may be worded in slightly different ways, or require a different number of

convictions to trigger life without parole, such a survey is likely not a

feasible option. However, we can look to other states’ judicial review of

these statutes to inform our analysis of whether a national consensus

has formed that life without parole for repeat sex offenders is cruel and

unusual punishment.

       Oliver points to only two cases that support his claim that Iowa

punishes the type of conduct he engaged in more harshly than other

jurisdictions. In State v. Davis, 79 P.3d 64 (Ariz. 2003) (en banc), the

Arizona Supreme Court reviewed a nineteen-year-old male’s sentence of

“fifty-two years in prison for having non-coerced sex with two post-

pubescent teenage girls.” Davis, 79 P. 3d at 66, 71. Davis was convicted

of four counts and received a thirteen-year sentence for each count,

which, by law, had to be served consecutively.                Id. at 67.    The court

found the sentence was grossly disproportionate to the crimes. Id. at 72,

75.   However, the court noted the defendant did not have an adult

        7As Oliver notes, many other states enhance the sentences of repeat offenders in

general, while not singling out repeat sex offenders. This further supports the idea that
there is not a national consensus against using enhanced punishment for recidivist sex
offenders.
                                       13

criminal record and had not previously committed any crimes against

children.    Id. at 72.   The Arizona Supreme Court later noted that the

holding in Davis “rested on the ‘specific facts and circumstances of

Davis’s offenses.’ ” State v. Berger, 134 P.3d 378, 386 (Ariz. 2006) (en

banc) (quoting Davis, 79 P.3d at 74–75). In Berger, the defendant was

convicted of twenty counts of sexual exploitation of a minor for

possession of child pornography depicting a minor under the age of
fifteen. Id. at 379. At the time of his arrest, the defendant did not have a

criminal record. Id. at 387. Because the child was under age fifteen, the

offense was characterized as a dangerous offense against children, and

Berger’s sentences had to be served consecutively without any possibility

of parole.   Id. at 379.    The court rejected Berger’s cruel and unusual

punishment claims, refusing to consider the consecutive sentences in the

proportionality decision, as the court had done in Davis. Id. at 385. The

Berger decision limits Davis’s holding to the facts of that case, making

the holding more like an as-applied challenge, as opposed to a facial

challenge. Id. at 387. Oliver’s long criminal history, combined with his

past sexual crime against a child, make Davis clearly distinguishable.

      Oliver also cites Bradshaw v. State, 671 S.E.2d 485 (Ga. 2008), as
the only decision to hold a recidivist sex offender sentence enhancement

was cruel and unusual. That case involved a statute that mandated a

life sentence after a second conviction for failure to register as a sex

offender. Bradshaw, 671 S.E.2d at 487. Georgia was the only state to

impose such a harsh penalty.           Id. at 491.   Only two other states

authorized a penalty over ten years and many authorized only a fraction

of that amount. Id. at 491–92. The Georgia court noted its punishment

was the “clear outlier.” Id. at 492.
                                           14

       Aside from Davis and Bradshaw, Oliver has not provided this court

with any other examples of state supreme courts declaring enhanced

punishments for sexual offenders to be unconstitutional.                    By Oliver’s

own admission, Bradshaw is the only case to declare an enhanced

punishment for a recidivist to be cruel and unusual.                    The state and

federal courts have both reviewed a Washington statute that is nearly

identical to Iowa’s. Washington’s statute imposes LWOP under a “two
strikes” law that is similar to section 902.14. See Wash. Rev. Code Ann.

§§ 9.94A.030(37)(b), 9.94A.570, 9A.44.076.8               In State v. Gimarelli, 20

P.3d 430 (Wash. Ct. App. 2001), the Washington Court of Appeals upheld

Washington’s two-strikes law where the defendant’s first conviction was

for forcible rape of an adult and his second offense was attempted child

molestation in the first degree. Gimarelli, 20 P.3d at 436. The victim was

an eleven-year-old girl. Id. The court noted, “The Legislature has a right

to discourage such behavior and protect the public from such offenders.”

Id.

       On de novo review, the Ninth Circuit also found the two strikes law

was constitutional.       Norris v. Morgan, 622 F.3d 1276, 1279 (9th Cir.

2010), cert. denied, 131 S. Ct. 1557 (2011). In Norris, the defendant was

sentenced to life without parole for a conviction of first-degree child

molestation.     Norris, 622 F.3d at 1279.           Because he was convicted of

child molestation ten years earlier, Washington law mandated a sentence




       8Under    Washington law, a person is guilty of second degree child rape if “the
person has sexual intercourse with another who is at least twelve years old but less
than fourteen years old and not married to the perpetrator and the perpetrator is at
least thirty-six months older than the victim.” Wash. Rev. Code. Ann. § 9A.44.076(1).
Two convictions of second-degree child rape makes one a “persistent offender.” Id.
§ 9.94A.030(37)(b). A persistent offender receives a life sentence without the possibility
of parole. Id. § 9.94A.570.
                                    15

of life without parole. Id. The Ninth Circuit discussed the Washington

Court of Appeals’ interjurisdictional analysis which concluded that

      “[m]ost states that have ‘two strikes’ laws require sex
      offenses with some degree of penetration and infliction of
      serious bodily harm.” In addition, according to the state
      appellate court, only “[a] small[] number of states would
      impose a sentence of life in prison without parole for a
      second offense after a similar prior offense. For example,
      Georgia, Montana, New Mexico, South Carolina, and
      Wisconsin all have two strikes laws for some types of sexual
      offenses.”

Id. at 1284 (quoting State v. Norris, 116 Wash. App. 1006, 2003 WL

827647, at *3 (2003)). The Washington Court of Appeals went on to note

that this factor alone was not dispositive because the intrajurisdictional

analysis revealed this type of sentence was imposed for other crimes in

Washington. Id. at 1283. The court held the sentence was not grossly

disproportionate. Id. at 1284. Norris filed a petition for a writ of habeas

corpus. Id.

      The Ninth Circuit was asked to determine whether upholding
Norris’s sentence was “ ‘contrary to, or involved an unreasonable

application of’ the proportionality principle” embodied in the Eighth

Amendment.     Id. at 1287.    Because the Washington court had only
analyzed the law under the Washington Constitution, the Ninth Circuit

engaged in a de novo review under the Eighth Amendment’s framework,

the same framework used in Iowa. See id. at 1283, 1289–90; see also

Bruegger, 773 N.W.2d at 883. The Ninth Circuit noted that even though

life without parole was an incredibly harsh sentence, it was “justified by

the gravity of [Norris’s] most recent offense and criminal history.” Norris,

622 F.3d at 1291.     After noting the particular danger the legislature

sought to avoid by harshly punishing recidivist sex offenders, the court

concluded, stating
                                           16
       Norris’s sentence “reflects a rational legislative judgment,
       entitled to deference,” that sex offenders who have
       committed a serious or violent sex offense and who continue
       to commit such sex offenses must be permanently
       incapacitated. Norris’s thus is not “ ‘the rare case in which a
       threshold comparison of the crime committed and the
       sentences imposed leads to an inference of gross
       disproportionality,’ ” and we need go no further.

Id. at 1296 (citations omitted).

       The Wisconsin Court of Appeals upheld Wisconsin’s “two-strikes”

law for sexual offenders in 2004, stating simply “the legislature ‘could

reasonably determine that the need for incarceration without the

possibility of parole is especially acute when children, a particularly

vulnerable segment of the population, are the explicit targets of the

offenses.’ ”   State v. Lewis, 690 N.W.2d 668, 673 (Wis. Ct. App. 2004)

(quoting State v. Radke, 657 N.W.2d 66, 75 (Wis. 2003)). Courts that

have found sentences unconstitutional when applied to minors still note

those same sentences would be appropriate when applied to adults. See,

e.g., Humphrey v. Wilson, 652 S.E.2d 501, 509 (Ga. 2007) (“[W]e must

acknowledge that Wilson’s crime does not rise to the level of culpability of

adults who prey on children and that, for the law to punish Wilson as it

would an adult, with [an] extraordinarily harsh punishment . . . appears

to be grossly disproportionate to his crime.”).                   In short, national

consensus seems to support, rather than oppose, the imposition of harsh

sentences, including life without parole, for recidivist sex offenders.

       Oliver notes that the penalty of life without parole is reserved for

very few crimes in Iowa and is imposed only when an offender commits

first-degree murder, first-degree sexual abuse, first-degree kidnapping, a

violation of section 902.14, or a violation of section 124.401D.9 Under



       9Though his argument is framed under the “intrajurisdictional” component of

the Harmelin analysis, the fact that life without parole is available for those who commit
                                       17

section 124.401D, a person over age eighteen who is twice convicted of

manufacturing methamphetamine for delivery to a minor or twice

convicted of possessing methamphetamine with the intent to deliver it to

a minor is guilty of a class “A” felony and will be sentenced to life without

parole. See Iowa Code § 124.401D; id. § 902.1. By imposing life without

parole on those who twice violate one of the prohibitions found in section

124.401D, the legislature has made it clear that recidivists who
repeatedly prey on the vulnerability of children will receive Iowa’s

harshest penalty. Those who commit sexually based crimes also receive

lengthy sentences under Iowa law, as evidenced by the penalties imposed

for a single violation of sections 709.3, 709.4, or 709.8(1) or (2). In the

view of the legislature, those who commit sexual crimes also pose special

recidivist concerns. In response to those concerns, the legislature has

established a variety of safeguards that apply only to sexual offenders.

See Iowa Code §§ 229A.1–.16 (civil commitment of sexually violent

predators); id. §§ 692A.1–.16 (sex offender registration); id. §§ 903B.1–.10

(sex offender hormone treatment).        These concerns over recidivist sex

offenders do not give the legislature free reign to punish sex offenders in

any way it sees fit, but they do help define “the evolving standards of
decency that mark the progress of a maturing society” which give

meaning to the Eighth Amendment. Trop v. Dulles, 356 U.S. 86, 101, 78

S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958). Iowa’s treatment of sex

offenders and those who repeatedly prey on children further convinces us

that there is not a consensus against this harsh penalty for the conduct

subject to section 902.14.



multiple less serious crimes informs our analysis of whether a consensus has been
reached that life without parole can only be imposed for the worst crimes.
                                     18

       B. The Offender’s Culpability and the Goals of Punishment. In

addition to considering whether there is a national consensus against the

punishment based on objective criteria, a reviewing court must also

make an independent judgment of whether the sentence violates the

constitution. Graham, ___ U.S. at ___, 130 S. Ct. at 2026, 176 L. Ed. 2d

at 841.   Part of this analysis must determine “whether the challenged

sentencing practice serves legitimate penological goals.” Id. “A sentence
lacking   any   legitimate   penological    justification    is   by   its   nature

disproportionate to the offense.” Id., ___ U.S. at ___, 130 S. Ct. at 2028,

176 L. Ed. 2d at 843. The United States Supreme Court has recognized

four   legitimate   penological   justifications:     retribution,     deterrence,

incapacitation, and rehabilitation. Id. By making multiple violations of

sections 709.3, 709.4, and 709.8(1) and (2) a class “A” felony, punishable

only by life in prison without parole, the legislature has completely

rejected rehabilitation as a goal of punishment. See generally Julia Fong

Sheketoff, State Innovations in Noncapital Proportionality Doctrine, 85

N.Y.U. L. Rev. 2209, 2226 (2010) (“LWOP is the only noncapital sentence

that wholly rejects rehabilitation as a goal of punishment. The sentence

is unique in that, by definition, it requires that the offender die in
prison.”). However, “[c]riminal punishment can have different goals, and

choosing among them is within a legislature’s discretion.” Graham, ___

U.S. at ___, 130 S. Ct. at 2028, 176 L. Ed. 2d at 843. In this case, we are

reviewing a statute that increases punishment for recidivist sex

offenders. The Supreme Court has noted that “[r]ecidivism has long been

recognized as a legitimate basis for increased punishment.” Ewing, 538

U.S. at 25, 123 S. Ct. at 1188, 155 L. Ed. 2d at 120.                    Enhancing

punishment      based   on   recidivism    fulfills   the   legitimate    goals   of
                                    19

incapacitation and deterrence.    Id. at 26, 123 S. Ct. at 1187–88, 155

L. Ed. 2d at 121.

      When examining retribution, the Supreme Court has stated that

“the heart of the retribution rationale is that a criminal sentence must be

directly related to the personal culpability of the criminal offender.”

Graham, ___ U.S. at ___, 130 S. Ct. at 2028, 176 L. Ed. 2d at 843

(citation and internal quotation marks omitted). The goal of retribution
is “restoration of the moral imbalance caused by the offense.”       Id. In

order to fully examine the culpability of a person who is subject to

section 902.14, we feel it is also appropriate to analyze the scope of the

prior and triggering crimes, as well as the scope of the statute that

enhances the defendant’s sentence.       Section 902.14, which enhanced

Oliver’s conviction to a class “A” felony, covers a relatively narrow set of

conduct. Only a second violation of section 709.3 (second-degree sexual

abuse), 709.4 (third-degree sexual abuse) or 709.8(1) and (2) (fondling a

child or causing a child to fondle the perpetrator) will trigger section

902.14. Unenhanced, each of these offenses is a class “B” or “C” felony.

Iowa Code §§ 709.3, .4, .8. Also, only a conviction or deferred judgment

will trigger section 902.14, not an adjudication of juvenile delinquency.
Id. § 902.14(2).    The Supreme Court has noted that juveniles are less

culpable than adults. See Graham, ___ U.S. at ___, 130 S. Ct. at 2028,

176 L. Ed. 2d at 843–44. By limiting section 902.14 to convictions as

opposed to adjudications of delinquency, the legislature has attempted to

avoid enhancing the punishment of less culpable offenders. The scope of

section 902.14 weighs against finding Oliver’s sentence to be cruel and

unusual.

      Since life without parole serves at least three legitimate goals, and

is supported by a national consensus, we find the Eighth Amendment
                                         20

does not categorically ban the imposition of life without parole for

persons subject to the imposition of section 902.14.
     V. The Challenge to This Particular Defendant’s Sentence
Under the State and Federal Constitutions.
      Having determined the penalty mandated by section 902.14 does
not violate any categorical limitations imposed by the State or Federal

Constitutions, we now turn to Oliver’s claim that the penalty mandated

by that statute is so grossly disproportionate to the crimes he committed

that following the statute would, in this case, violate the State or Federal

Constitutions.

      Oliver      challenges     his   sentence     by   claiming   it   is   grossly

disproportionate to his crime using the three-step analysis first

articulated in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d

637 (1983).      See Bruegger, 773 N.W.2d at 873.            The first step in this

analysis, sometimes referred to as the threshold test, requires a

reviewing court to determine whether a defendant’s sentence leads to an

inference of gross disproportionality. Id. “This preliminary test involves

a balancing of the gravity of the crime against the severity of the

sentence.” Id. If, and only if, the threshold test is satisfied, a court then

proceeds to steps two and three of the analysis. Id. These steps require

the court to engage in an intrajurisdictional analysis “comparing the

challenged       sentence   to    sentences   for    other    crimes     within   the

jurisdiction.”     Id.   Next, the court engages in an interjurisdictional

analysis, “comparing sentences in other jurisdictions for the same or

similar crimes.” Id.

      At the time Bruegger was decided, we observed that the role of

individualized challenges under the Federal Constitution was unclear.

See id. at 874–76. We noted that in Rummel v. Estelle, 445 U.S. 263, 100
                                   21

S. Ct. 1133, 63 L. Ed. 2d 382 (1980), and in Solem, the Supreme Court

favored an individualized challenge to a defendant’s sentence outside of

the capital punishment context. Id. at 875. However, we noted that in

Harmelin the plurality of the Court seemed to retreat from allowing

individualized challenges under the Eighth Amendment. Bruegger, 773

N.W.2d at 875 (citing Harmelin, 501 U.S. at 995, 111 S. Ct. at 2701–02,

115 L. Ed. 2d at 865). In a concurring opinion joined by two of the five
justices that comprised the plurality in Harmelin, Justice Kennedy

discussed the defendant’s challenge as “a comparison of his crime with

his sentence.” Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L.

Ed. 2d at 872 (Kennedy, J., concurring) (emphasis added).         Though

Justice Kennedy stopped short of requiring the type of individualized

sentencing procedure that is required in capital cases, his concurrence

makes clear that the three-step analysis the Supreme Court used in

Solem requires a comparison between a defendant’s sentence and his

particular crime. Id. at 1006, 111 S. Ct. at 2707, 115 L. Ed. 2d at 872.

      Justice Kennedy’s use of the three-part test on an individualized

basis outside of the capital punishment context gained support in the

Supreme Court’s next major Eighth Amendment decision. In Ewing, the
defendant claimed his sentence of twenty-five years to life in prison

under California’s three strikes law was grossly disproportionate to his

crime: the theft of three golf clubs. Id. at 18–20, 123 S. Ct. at 1183–85,

155 L. Ed. 2d at 115–16.     Though, as in Harmelin, no single opinion

commanded a majority, the majority of the justices endorsed the fact-

specific analysis Justice Kennedy advocated for in Harmelin. Id. at 23–

24, 123 S. Ct. at 1187, 155 L. Ed. 2d at 119 (“The proportionality

principles in our cases distilled in Justice Kennedy’s concurrence [in

Harmelin] guide our application of the Eighth Amendment in [this
                                        22

context].”); see also Bruegger, 773 N.W.2d at 876 (“[A] majority of the

Supreme Court in Ewing seems to approve of an as-applied challenge to

an otherwise valid statute under the Cruel and Unusual Punishment

Clause of the Eighth Amendment.”).

        After describing the back-and-forth state of as-applied challenges

under the Federal Constitution, our Bruegger opinion then turned to the

possibility of an as-applied challenge under the Iowa Constitution.
Bruegger, 773 N.W.2d at 884. We noted “that many of our cases reject

individualized determinations in connection with cruel-and-unusual-

punishment challenges in a number of contexts.” Id. at 884. However,

we then stated that “we do not believe that a defendant can never

challenge a sentence as cruel and unusual as applied.”             Id.   We held

that, based on the unique factors of his case, Bruegger was allowed to

make an individualized showing that his sentence amounted to cruel and

unusual punishment under the Iowa Constitution.              Id.     Since “the

current record [was] simply inadequate to resolve the issue,” we

remanded the case to the district court “for a new sentencing hearing to

allow    Bruegger   and   the   State    to   present   evidence    as   to   the

constitutionality of [the statute] as applied to the defendant.” Id. at 886.
        The next year, the United States Supreme Court decided Graham.

In Graham, the Supreme Court stated that the three-step analysis used

in Harmelin and Ewing is not suited for cases where a particular

sentencing practice is in question, which, in Graham, was the practice of

sentencing minors to life in prison for nonhomicide crimes. ___ U.S. at

___, 130 S. Ct. at 2022, 176 L. Ed. 2d at 837. Instead, the Court held

the three-step analysis set forth in Solem “is suited for considering a
                                          23

gross proportionality challenge to a particular defendant’s sentence.”10
Id.

       By labeling the three-step analysis as a challenge based on a

particular defendant’s sentence, the Supreme Court’s opinion in Graham

is now consistent with our holding in Bruegger. Therefore, under both

the State and Federal Constitutions, a defendant is allowed to challenge

his sentence by “emphasizing the specific facts of the case.” Bruegger,

773 N.W.2d at 884; see also Graham, ___ U.S. at __, 130 S. Ct. at 2022,

176 L. Ed. 2d at 837.

       Having determined that a defendant may bring an as-applied

challenge     under    the    Eighth     Amendment        to   the   United     States

Constitution and article I, section 17 of the Iowa Constitution, we now

turn to the question of how such a challenge should proceed. Section

902.14 mandates the sentence of LWOP be imposed on Oliver. Our task

is to determine whether following that mandate in this case would

amount to cruel and unusual punishment.

       Mandatory imposition of the death penalty has been held

unconstitutional by the United States Supreme Court. See Johnson v.

Texas, 509 U.S. 350, 360–61, 113 S. Ct. 2658, 2665, 125 L. Ed. 2d 290,

301 (1993).     This is because “[c]apital punishment must be limited to

those offenders who commit ‘a narrow category of the most serious

crimes’ and whose extreme culpability makes them ‘the most deserving of

execution.’ ” Roper, 543 U.S at 568, 125 S. Ct. at 1194, 161 L. Ed. 2d at

21 (citation omitted). Thus, prior to sentencing an offender to death, a


       10In  his concurring opinion in Graham, Chief Justice Roberts went so far as to
argue that the categorical principle should not be expanded beyond the capital
punishment context and that all noncapital challenges should be based on the
particular facts of each case. See Graham, ___ U.S. at __, 130 S. Ct. at 2038–39, 176 L.
Ed. 2d at 853 (Roberts, C.J., concurring).
                                            24

court must make an individualized determination that the offender is

worthy of capital punishment.

       The Constitution does not require an individualized sentencing

proceeding outside the capital punishment context.                    Woodson v. North

Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944, 961

(1976) (noting that, outside the capital punishment context, “[t]he

prevailing practice of individualizing sentencing determinations generally
reflects    simply     enlightened       policy    rather     than    a    constitutional

imperative”).      Unlike mandatory death sentences, mandatory LWOP

sentences have been upheld.11 See, e.g., Harmelin, 501 U.S. at 961, 996,

111 S. Ct. at 2683, 2702, 115 L. Ed. 2d at 843, 865 (upholding a

mandatory LWOP sentence of possession of 672 grams of cocaine). Even

though     the    Eighth     Amendment          does    not    require     individualized

sentencing in noncapital cases, a defendant may challenge a mandatory,

noncapital sentence as grossly disproportionate to the crime committed.

Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707, 115 L. Ed. 2d at 872

(Kennedy, J, concurring). Bruegger is an example of such a challenge.

       In Bruegger, we held the Iowa Constitution allowed an as-applied

challenge under the three-part test.              We remanded Bruegger because
“[t]he Solem-type approach for evaluating Bruegger’s cruel-and-unusual-

punishment claim cannot be applied without a proper record.”                            773

N.W.2d at 886.          Creating a proper record would require giving the

defendant an opportunity to fully explain the facts and circumstances of


       11The     United States Supreme Court has gone so far as to suggest that a
mandatory LWOP sentence may be more likely to be constitutional than one that is left
to the discretion of the sentencing court. See, e.g., Harmelin, 501 U.S. at 1006, 111 S.
Ct. at 2708, 115 L. Ed. 2d at 872–73 (Kennedy, J., concurring) (“To set aside
petitioner’s mandatory sentence would require rejection not of the judgment of a single
jurist . . . but rather the collective wisdom of the . . . Legislature and, as a consequence,
the . . . citizenry.”).
                                       25

his prior offense.   Id. at 885.   It would also involve giving the State a

chance to present evidence of the impact on the victim and her family,

the defendant’s lack of remorse, his inability to respond to rehabilitative

services, and the need to incapacitate the defendant. Id. at 886. In this

case, the court addressed the constitutionality of the sentence mandated

by section 902.14 prior to sentencing. At the sentencing hearing, both

Oliver and the State presented the type of evidence we felt was lacking in
Bruegger. Remand in this case is therefore unnecessary.

      In Bruegger, we

      appl[ied] the general principles as outlined by the United
      States Supreme Court for addressing a cruel-and-unusual-
      punishment challenge under the Iowa Constitution.

            Even so, we do not necessarily apply the federal
      standards in the same way as the United States Supreme
      Court.

Id. at 883 (citations omitted). To this end, we reiterate “that review of

criminal   sentences    for   ‘gross   disproportionality’   under   the   Iowa

Constitution should not be a ‘toothless’ review and adopt a more

stringent review than would be available under the Federal Constitution.”

Id.   Since Oliver has challenged his sentence under the Iowa
Constitution, we will apply our more stringent gross-disproportionality

review to the facts of his case.

      We now turn to the threshold inquiry to determine whether Oliver’s

sentence of life without parole leads to an inference of gross

disproportionality to Oliver’s crime. If the sentence does not create an

inference of gross disproportionality, then “no further analysis is

necessary.” State v. Seering, 701 N.W.2d 655, 670 (Iowa 2005) (citation

and internal quotation marks omitted). Our principal task at this stage
                                    26

is to “balanc[e] the gravity of the crime against the severity of the

sentence.” Bruegger, 773 N.W.2d at 873.

      There are some general principles we must consider when

reviewing a defendant’s sentence to determine whether it is “grossly

disproportionate” to the crime committed.       The first is that we owe

substantial deference to the penalties the legislature has established for

various crimes.    As noted earlier, “[c]riminal punishment can have
different goals, and choosing among them is within a legislature’s

discretion.” Graham, ___ U.S. at ___, 130 S. Ct. at 2028, 176 L. Ed. 2d at

843; see also Bruegger, 773 N.W.2d at 872–73; Seering, 701 N.W.2d at

670; State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000). We give the

legislature deference because “[l]egislative judgments are generally

regarded as the most reliable objective indicators of community

standards for purposes of determining whether a punishment is cruel

and unusual.” See Bruegger, 773 N.W.2d at 873.

      The second principle is that it is rare that a sentence will be so

grossly disproportionate to the crime as to satisfy the threshold inquiry

and warrant further review. State v. Musser, 721 N.W.2d 734, 749 (Iowa

2006) (citing State v. Lara, 580 N.W.2d 783, 785 (Iowa 1998)); see also
Cronkhite, 613 N.W.2d at 669. This is true even though our review is

more stringent than is required under the Federal Constitution.        See

Bruegger, 773 N.W.2d at 883.

      The third principle is that a recidivist offender is more culpable

and thus more deserving of a longer sentence than a first-time offender.

See Solem, 463 U.S. at 296, 103 S. Ct. at 3013, 77 L. Ed. 2d at 653 (“[A]

State is justified in punishing a recidivist more severely than it punishes

a first offender.”).   Therefore, when determining the gravity of the

offender’s crime, a district court can consider the offender’s criminal
                                         27

history. See, e.g., Ewing, 538 U.S. at 29, 123 S. Ct. at 1189–90, 155

L. Ed. 2d at 122 (“In weighing the gravity of Ewing’s offense, we must

place on the scales not only his current felony, but also his long history

of felony recidivism.     Any other approach would fail to accord proper

deference to the policy judgments that find expression in the legislature’s

choice of sanctions.”); see also Bruegger, 773 N.W.2d at 874. Lengthy

sentences are more likely to be constitutional when imposed on offenders
with lengthy criminal histories. See Ewing, 538 U.S. at 29–30, 123 S. Ct.

1189–90, 155 L. Ed. 2d at 122–23.

       Finally, we note that the unique features of a case can “converge to

generate a high risk of potential gross disproportionality.” Bruegger, 773

N.W.2d at 884. The unique factors at issue in Bruegger were “a broadly

framed crime, the permissible use of preteen adjudications as prior

convictions to enhance the crime, and a dramatic sentence enhancement

for repeat offenders.”12        Id.   Thus, we must examine the unique

combination of the features in Oliver’s case as part of our threshold

determination regarding the inference of gross disproportionality.

       With these general principles in mind, we now turn to Oliver’s

claim that section 902.14 imposes an unconstitutional penalty on him.
Oliver was sentenced to life without parole for two convictions of third-

degree sexual abuse. As we noted in Bruegger, third degree sexual abuse

includes what is commonly termed “statutory rape” and is a broadly

framed crime:

       The crime of statutory rape covers a wide variety of
       circumstances, from Romeo and Juliet relationships to much
       more objectionable situations involving the luring of

        12In Bruegger, these factors converged to convince us that the defendant was

entitled to bring an as-applied challenge to his sentence under the Iowa Constitution.
773 N.W.2d at 885. As noted above, it is now clear that such a challenge can be
brought, regardless of the presence or absence of these factors.
                                    28
      youngsters by older individuals using manipulative
      techniques, positions of authority, threats of violence, and
      other aggravating factors.

Id. at 884–85.     While a sexual relationship between two preteen

children—which was Bruegger’s first offense—may resemble a “Romeo

and Juliet relationship,” Oliver’s first and present offenses are “much

more objectionable situations.” Id. While the only criminal aspect of the

sexual intercourse between R.A. and Oliver was their extreme age
difference, this case is not the type of circumstance that leads us to infer

that section 902.14 is grossly disproportionate to Oliver.

      At the time of Oliver’s first offense, he was twenty-four years old,

and his victim was fourteen or fifteen years old.       At the time of his

present offense, he was thirty-three years old and his victim was thirteen

years old. Conley, Oliver’s long-time friend, was a father figure to R.A.

R.A. was only at Conley’s home that evening because of difficulties in her

own home life. Oliver knew the nature of the relationship between R.A.

and Conley. According to R.A.’s testimony, Oliver told R.A. that he loved

her and was going to leave his wife. After the incident, Oliver continued

to contact R.A., at one point inviting her to come to his hotel room. In

R.A.’s own words at the sentencing hearing,

      [B]ecause of this incident, I went to treatment for eight
      months and I’m doing therapy at Children and Families of
      Iowa . . . .

            ....

             . . . [W]e had to move out of our own home. I went to
      about four different schools. I was in residential treatment
      and I would like you to know that this man molested me. He
      made me believe that he loved me and then had sex with me
      and then left. I trusted him. I was a thirteen-year-old little
      girl and he took my life away . . . .
                                    29

This is the type of exploitation section 709.4 was designed to prevent, not

conduct that was inadvertently caught by a broadly written statute. See

id. at 884.

      In addition to analyzing the scope of the instant crime, we feel it is

also appropriate to analyze the scope of the statute that enhances the

defendant’s sentence.    Like Bruegger, Oliver faces a lengthy sentence

after being convicted of the broadly framed crime of third-degree sexual
abuse. Id. However, Bruegger’s sentence was enhanced under section

901A.2, whereas Oliver’s enhancement is under section 902.14. Id. at

885. Section 901A.2(3) enhances the sentence of anyone convicted of a

“sexually predatory offense” that is a felony if that person has a prior

conviction for a “sexually predatory offense.” Section 901A.1(1) defines a

“sexually predatory offense” as any violation of chapter 709, the “C”

felonies of sexual exploitation of a minor, enticing a minor under the age

of thirteen away or pandering involving a minor, and any attempted

violation of any of those statutes.      Adjudications of delinquency are

included in the definition of “prior convictions.” Iowa Code § 901A.1(2).

      Section 902.14 covers a much narrower set of conduct. To trigger

this section, both the predicate and triggering offenses must be violations
of section 709.3 (second-degree sexual abuse), 709.4 (third-degree sexual

abuse) or 709.8(1) and (2) (fondling a child or causing a child to fondle

the perpetrator). Id. § 902.14(1). Each of these offenses is, on its own, a

class “B” or “C” felony.    See id. §§ 709.3, .4, .8(1–2).    Also, only a

conviction or deferred judgment will trigger section 902.14, not an

adjudication of juvenile delinquency. Compare id. § 902.14(2), with id.

§ 901A.1(2).

      There are fewer predicate crimes that make a defendant eligible for

an enhanced punishment under section 902.14. Unlike section 901A.2,
                                    30

which includes “D” felonies and serious and aggravated misdemeanors as

predicate offenses, the predicate offense under section 902.14 must be a

“B” or “C” felony. Compare id. § 901A.2, with § 902.14(1). Also, only

convictions and deferred judgments, as opposed to adjudications of

delinquency, trigger section 902.14.     Section 902.14 is not as broadly

framed as 901A.2, and thus the scope of this statute generates less

potential for gross disproportionality than section 901A.2. See Bruegger,
773 N.W.2d at 884.

      Another factor considered in Bruegger was the defendant’s “age as

a preteen when the predicate offense was committed.”        Id. at 885.    If

Oliver were a preteen when his predicate offense was committed, this

might contribute to an inference that life without parole was grossly

disproportionate to the crime.    However, Oliver was first convicted of

third-degree sexual assault when he was twenty-four years old. He was

convicted again at age thirty-four. Unlike Bruegger, Oliver is not seeking

“to show that the consequences of his adolescent act become grossly

disproportional to his sentence for the adult crime.” Id. at 885. Oliver’s

sentence is not based on any crimes he committed in his teens.            His

crimes were both committed after entering adulthood. Oliver’s age at the
time of his first offense does not support an inference that this sentence

is grossly disproportionate.

      Oliver’s additional criminal history does not favor an inference of

gross disproportionality. According to his PSI, Oliver has nineteen prior

convictions in the last sixteen years. Oliver’s convictions for supplying

alcohol to a minor and a sex offender residency violation are particularly

troubling given his current conviction.      Offenses relating to Oliver’s

status as a sex offender are not merely technicalities; the legislature has

imposed these requirements because of the “realistic concerns related to
                                      31

offender recidivism” and the need to limit a recidivist’s opportunities to

reoffend. Seering, 701 N.W.2d at 670.

      After his first conviction for third-degree sexual abuse, Oliver’s

probation was revoked because of his failure to comply with the

requirements of supervised probation.        Records also indicate that he

failed to successfully complete his court-ordered sex offender treatment

programming. Oliver claimed at sentencing that he stopped participating
in the class because he had been sent back to prison and was therefore

“not required to finish the class.”

      At   sentencing,    Oliver   argued   life   without   parole   was   an

inappropriate sentence because, as he stated,

      I didn’t put a gun to anyone’s head.         I didn’t kidnap
      anybody. I didn’t rob a bank. I didn’t shoot anybody. I see
      a lot of things in the paper about stuff like that and those
      are people who are getting life sentences.

He also stated, “I’m sorry for what I put everybody through, including

myself and my children, [R.A.’s mother,] and her children. I mean my

friends, I put them through hell, other people.” When asked to write out

his version of events for the PSI, Oliver simply stated, “I just wanted to

say that everyone involved in this has suffered but the punishment does

not fit the crime.       Plus the punishment really should be shared.

Everyone involved knows right from wrong.”          Oliver’s unwillingness to

accept responsibility for his actions, or to accept that he has committed a

serious crime, further convinces us that Oliver’s individualized challenge

claiming gross disproportionality fails.

      For sixteen years, Oliver has demonstrated an inability to conform

his conduct to the law.     Some of these violations have been relatively

minor misdemeanors while others have been felonies.             In particular,

Oliver has demonstrated an inability to conform his actions to society’s
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expectations regarding minors, having been convicted of supplying

alcohol to a minor and twice convicted of statutory rape. By violating

residency requirements imposed on sex offenders, Oliver has also shown

he is unwilling to comply with the safeguards the legislature has

mandated to protect children from sexual criminals.          Oliver has not

acknowledged his crime, nor its severity, claiming that “the punishment

really should be shared” and that “[e]veryone involved knows right from
wrong.”     The nature of Oliver’s past and present crimes, the narrow

scope of section 902.14, and Oliver’s attitude towards his criminal

behavior lead us to conclude that section 902.14 does not impose a

grossly disproportionate penalty on Oliver.

         After reviewing Oliver’s case and comparing the gravity of his crime

to the penalty mandated by the statute, we do not feel that section

902.14 imposes an unconstitutional punishment on Oliver.             Oliver’s

sentence does not lead to an inference of gross disproportionality. Oliver

has committed multiple crimes as an adult and has an extensive

criminal history. He has shown a lack of remorse and an inability to be

rehabilitated. Based on the facts of his case, life without parole does not

strike us as a grossly disproportionate punishment to his crimes. Since
the penalty does not lead to an inference of gross disproportionality, we

need not proceed to steps two and three of the analysis, the

intrajurisdictional and interjurisdictional comparisons.      Bruegger, 773

N.W.2d at 873.

         VI. Disposition.

         Oliver committed third-degree sexual abuse twice in a period of ten

years.      The legislature has chosen to harshly punish those who

repeatedly engage in a variety of sex acts with children by imposing

Iowa’s most severe sentence, life without parole, on them. Our role is not
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to determine what the proper sentence for a crime should be. Instead,

we are to review the sentence mandated by the legislature to ensure that

it is within the protections ensured by the State and Federal

Constitutions. In this case, the legislature has chosen to permanently

confine those who have shown, on multiple occasions, that they are

unwilling to follow society’s restrictions regarding sexual contact between

children and adults. We see no constitutional infirmity in that decision.
      Even if the penalty of life without parole is not categorically

prohibited for violations of section 902.14, Oliver claims the sentence

imposed is grossly disproportionate to his particular acts.     Again, we

disagree. Oliver committed both of his crimes well beyond his eighteenth

birthday. He has committed other crimes that indicate an unwillingness

to comply with society’s rules regarding both minors and sexual

behavior. While Oliver claims that his crimes were not physically violent,

they are still emotionally, psychologically and physically damaging to the

child being exploited.   The penalty of life without parole is within the

boundaries imposed upon the legislature’s discretion by the state and

federal constitutions, and the penalty is not cruel and unusual when

considered in light of the particular facts of Oliver’s case.
      The sentence imposed by the district court is affirmed.

      AFFIRMED.
