               IN THE SUPREME COURT, STATE OF WYOMING

                                       2014 WY 157

                                                       OCTOBER TERM, A.D. 2014

                                                                  December 9, 2014

DAVID MICHAEL NORGAARD,

Appellant
(Defendant),

v.                                                   S-14-0081

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Campbell County
                       The Honorable Thomas W. Rumpke, Judge

Representing Appellant:
      Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N.
      Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate
      Counsel. Argument by Mr. Morgan.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D.
      Jackson, Faculty Director, and A. Walker Steinhage, Student Director, Prosecution
      Assistance Program. Argument by Mr. Steinhage.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, 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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.

[¶1] David Michael Norgaard claims he was subjected to cruel and/or unusual
punishment in violation of the United States and Wyoming constitutions when he was
sentenced to life in prison without the possibility of parole upon his second conviction for
sexual abuse of a minor. We acknowledge the punishment is harsh, but, under the
circumstances presented here, we find it is valid under both constitutions. Consequently,
we affirm.

                                                  ISSUES

[¶2]      Mr. Norgaard presents the following issues on appeal:

                   I.      Is the sentence of life without the possibility of parole
                           grossly disproportionate to the offense and therefore in
                           violation of the Eighth Amendment of the United
                           States Constitution?

                   II.     Does Appellant’s sentence of life in prison without the
                           possibility of parole violate Art. 1, § 14 of the
                           Wyoming Constitution?

The State presents a single appellate issue:

                   A criminal sentence violates the Eighth Amendment to the
                   United States Constitution if the sentence is found to be cruel
                   and unusual. A criminal sentence violates article 1, section
                   14 of the Wyoming Constitution if it is cruel or unusual. The
                   district court sentenced Norgaard to a mandatory term of life
                   in prison without the possibility of parole as mandated by
                   Wyo. Stat. Ann. § 6-2-306(e). Did the district court commit
                   plain error by imposing this sentence?

(Emphasis in original).

                                                  FACTS

[¶3] Mr. Norgaard was charged with one count of first degree sexual abuse of a minor
under Wyo. Stat. Ann. § 6-2-314(a)(i) (LexisNexis 2013)1 and one count of second
1
    Section 6-2-314 states in relevant part:

          (a) An actor commits the crime of sexual abuse of a minor in the first degree if:


                                                       1
degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(ii) (LexisNexis
2013)2 for events occurring on August 12, 2012. He was also charged with one count of
second degree sexual abuse of a minor for an offense on August 5, 2012. All of the
charges involved the same six-year old female victim.

[¶4] Mr. Norgaard was previously convicted, while in the United States Army in 1997,
of a similar offense. The State filed a notice of intent to introduce at trial evidence of the

                  (i) Being sixteen (16) years of age or older, the actor inflicts sexual intrusion on a
          victim who is less than thirteen (13) years of age;
          ....

          (c) A person convicted under paragraph (a)(i) of this section, where the actor is at least
          twenty-one (21) years of age, is subject to imprisonment for not less than twenty-five
          (25) years nor more than fifty (50) years, unless the person convicted qualified under
          W.S. 6-2-306(e).

Sexual intrusion is defined at Wyo. Stat. Ann. § 6-2-301(a)(vii) as:

          (vii) “Sexual intrusion” means:

                  (A) Any intrusion, however slight, by any object or any part of a person’s body,
          except the mouth, tongue or penis, into the genital or anal opening of another person’s
          body if that sexual intrusion can reasonably be construed as being for the purposes of
          sexual arousal, gratification or abuse; or

                  (B) Sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse with or
          without emission.
2
    Section 6-2-315 states in relevant part:

          (a) Except under circumstance constituting sexual abuse of a minor in the first degree as
          defined by W.S. 6-2-314, an actor commits the crime of sexual abuse of a minor in the
          second degree if:
           ....
                   (ii) Being sixteen (16) years of age or older, the actor engages in sexual contact
          of a victim who is less than thirteen (13) years of age;
          ....
          (b) A person convicted under subsection (a) of this section is subject to imprisonment for
          not more than twenty (20) years, unless the person convicted qualifies under W.S. 6-2-
          306(e).

    Sexual contact is defined at § 6-2-301(a)(vi) as:

          (vi) “Sexual contact” means touching, with the intention of sexual arousal, gratification
          or abuse, of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the
          victim, or of the clothing covering the immediate area of the victim’s or actor’s intimate
          parts[.]



                                                        2
prior conviction under W.R.E. 404(b). The district court held a hearing and ruled the
evidence was admissible. Thereafter, the parties negotiated a plea agreement in which
Mr. Norgaard agreed to plead no contest to the second count of the information, second
degree sexual abuse committed on August 12, 2012, and the State agreed to dismiss the
other two counts. Mr. Norgaard specifically acknowledged in the plea agreement that the
sentence for a second conviction of second degree sexual abuse of a minor was life in
prison without the possibility of parole.

[¶5] The district court ruled that probation was not appropriate in Mr. Norgaard’s case
and imposed the only prison term allowed under Wyo. Stat. Ann. §§ 6-2-315(b) and 6-2-
306(e) (LexisNexis 2013)–life without the possibility of parole. Mr. Norgaard appealed.
We will present additional facts in our discussion of the issues below.

                                     STANDARD OF REVIEW

[¶6] The parties disagree on the pertinent standard of review. Mr. Norgaard argues that
the standard of review of the constitutional issue is de novo. The State argues that,
because Mr. Norgaard failed to object to the sentence below, we are limited to a search
for plain error. 3

[¶7] We understand the State’s concern with Mr. Norgaard’s failure to object or present
his constitutional arguments below. However, the salient question we must answer in
this case is really no different if addressed under the plain error standard or a simple de
novo standard. To establish plain error, an appellant must demonstrate “that the record
patently demonstrates the district court transgressed a clear and unequivocal rule of law
and such violation adversely affected his substantial right.” Sandoval v. State, 2009 WY
121, ¶ 6, 217 P.3d 393, 395 (Wyo. 2009), citing Manes v. State, 2004 WY 70, ¶ 9, 92
P.3d 289, 292 (Wyo. 2004). Mr. Norgaard’s sentence is clear in the record and a
substantial right will certainly be adversely affected if his sentence of life without parole
is found to be unconstitutionally cruel and unusual. The only question to be resolved
under the plain error standard is whether the sentence violates the constitutional



3
  Although the State does not argue that Mr. Norgaard waived his right to challenge his sentence as cruel
and unusual by failing to raise the issue in the district court, there is precedent to that effect. See Apodaca
v. State, 571 P.2d 603, 605 (Wyo. 1977) (issue of whether juvenile defendant was subjected to cruel and
unusual punishment by being sentenced to the penitentiary was not addressed on appeal because it was
not raised in the district court); Bhutto v. State, 2005 WY 78, ¶¶ 36-38, 114 P.3d 1252, 1265-66 (Wyo.
2005) (refusing to address issue of whether murder statute which allowed judge to choose between life
imprisonment and life imprisonment without parole without any guidelines violated due process or was
an unconstitutional arbitrary power because defendant did not raise it below); United States v. Rivera, 546
F.3d 245, 254 (2d. Cir. 2008) (defendant’s claim on appeal that his sentence was cruel and unusual in
violation of the Eighth Amendment forfeited because it was not raised in the district court).



                                                      3
provisions. Determination of that legal question is, of course, subject to de novo review.4
Sen v. State, 2013 WY 47, ¶ 43, 301 P.3d 106, 122 (Wyo. 2013). Thus, we apply our de
novo standard of review under the circumstances of this case.

                                           DISCUSSION

        1. Eighth Amendment to the United States Constitution

[¶8] The United States Constitution Amendment VIII states: “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The provision applies to the states by application of the due process clause of the
Fourteenth Amendment to the United States Constitution. Robinson v. California, 370
U.S. 660, 675, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). Under the Eighth Amendment
barbaric punishments and sentences that are disproportionate to the crime are prohibited.
Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Bear Cloud
v. State, 2013 WY 18, ¶ 18, 294 P.3d 36, 41 (Wyo. 2013). But see Harmelin v.
Michigan, 501 U.S. 957, 966-75, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (two justices
asserting that the Eighth Amendment was not intended to prohibit disproportionate
punishments).

[¶9] In Graham v. Florida, 560 U.S. 48, 58-59, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010), the United States Supreme Court explained:

                To determine whether a punishment is cruel and unusual,
                courts must look beyond historical conceptions to “‘the
                evolving standards of decency that mark the progress of a
                maturing society.’” Estelle v. Gamble, 429 U.S. 97, 102, 97
                S.Ct. 285, [290,] 50 L.Ed.2d 251 (1976) (quoting Trop v.
                Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, [598,] 2 L.Ed.2d 630
                (1958) (plurality opinion)). “This is because ‘[t]he standard of
                extreme cruelty is not merely descriptive, but necessarily
                embodies a moral judgment. The standard itself remains the
                same, but its applicability must change as the basic mores of
                society change.’ ” Kennedy v. Louisiana, 554 U.S. 407, 419,
                128 S.Ct. 2641, 2649, 171 L.Ed.2d 525, 538 (2008) (quoting
                Furman v. Georgia, 408 U.S. 238, 382, 92 S.Ct. 2726,
                [2800,] 33 L.Ed.2d 346 (1972) (Burger, C.J., dissenting)).

                The Cruel and Unusual Punishments Clause prohibits the
                imposition of inherently barbaric punishments under all

4
 Because we find no violation of the constitutional provisions, we do not need to determine whether the
rule of law was clear and unequivocal.


                                                   4
             circumstances. See, e.g., Hope v. Pelzer, 536 U.S. 730, 122
             S.Ct. 2508, 153 L.Ed.2d 666 (2002). “[P]unishments of
             torture,” for example, “are forbidden.” Wilkerson v. Utah, 99
             U.S. 130, 136, 25 L.Ed. 345 (1879). These cases underscore
             the essential principle that, under the Eighth Amendment, the
             State must respect the human attributes even of those who
             have committed serious crimes.

                    For the most part, however, the Court's precedents
             consider punishments challenged not as inherently barbaric
             but as disproportionate to the crime. The concept of
             proportionality is central to the Eighth Amendment.
             Embodied in the Constitution's ban on cruel and unusual
             punishments is the “precept of justice that punishment for
             crime should be graduated and proportioned to [the] offense.”
             Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544,
             [549,] 54 L.Ed. 793 (1910).

See also Tucker v. State, 2010 WY 162, ¶ 49, 245 P.3d 301, 314 (Wyo. 2010).

[¶10] Mr. Norgaard maintains his punishment violates the Eighth Amendment because it
is grossly disproportionate to the crime he committed. He pleaded no contest to second
degree sexual abuse of a minor under § 6-2-315 which generally carries a maximum
penalty of twenty years in prison, but because he had a prior conviction for sexual abuse
of a minor, he qualified for an enhanced penalty under § 6-2-306(e). Section 6-2-306(e)
states:

             (e) An actor who is convicted of sexual abuse of a minor
             under W.S. 6-2-314 or 6-2-315 shall be punished by life
             imprisonment without parole if the actor has one (1) or more
             previous convictions for a violation of W.S. 6-2-302 through
             6-2-304, 6-2-314 or 6-2-315, or a criminal statute containing
             the same or similar elements as the crimes defined by W.S. 6-
             2-302 through 6-2-304, 6-2-314 or 6-2-315, which
             convictions resulted from charges separately brought and
             which arose out of separate occurrences in this state or
             elsewhere and which convictions were for offenses
             committed after the actor reached the age of eighteen (18)
             years of age.

[¶11] Wyoming follows the United States Supreme Court’s test from Solem to
determine whether a sentence is proportional. Oakley v. State, 715 P.2d 1374, 1376-77
(Wyo. 1986). The Solem test includes three elements:


                                           5
              [A] court’s proportionality analysis under the Eighth
              Amendment should be guided by objective criteria, including
              (i) the gravity of the offense and the harshness of the penalty;
              (ii) the sentences imposed on other criminals in the same
              jurisdiction; and (iii) the sentences imposed for commission
              of the same crime in other jurisdictions.

Solem, 463 U.S. at 292, 103 S. Ct. at 3011. We consider first whether the gravity of the
offense and the harshness of the penalty are proportional. We apply the last two elements
of the test only if we find the sentence is grossly disproportionate to the crime. Oakley,
715 P.2d at 1379; Tucker, ¶ 49, 245 P.3d at 314-15.

[¶12] The sentence applicable to repeat sex offenders under § 6-2-306(e) of life in prison
without parole is indisputably severe. In fact, as Mr. Norgaard points out, aside from the
death penalty, life in prison without the possibility of parole is the most severe
punishment meted out by our legal system. Graham, 130 S. Ct. at 2027; Harmelin, 501
U.S. at 1001, 111 S. Ct. at 2680 (a sentence of life imprisonment without possibility of
parole is “the second most severe penalty permitted by law”). However, given the
specific criteria for qualifying prior convictions, the harsh sentence of § 6-2-306(e) will
apply to a relatively small group of habitual and dangerous sex offenders.

[¶13] It is important to remember that repeat sex offenders are subject to a mandatory
severe penalty under our penal code because they have a history of committing
extraordinarily serious crimes. In his argument that the mandatory sentence is grossly
disproportionate to his criminal offense, Mr. Norgaard focuses on the sexual contact
element of second degree sexual assault, i.e., “touching, with the intention of sexual
arousal, gratification or abuse, of the victim’s intimate parts by the actor, or of the actor’s
intimate parts by the victim, or of the clothing covering the immediate area of the
victim’s or actor’s intimate parts.” § 6-2-301(a)(vi). He argues that such conduct, while
criminal, should not expose a defendant to the second most severe penalty that exists in
our penal system.

[¶14] In determining whether a sentence is grossly disproportionate under Solem, 463
U.S. at 295-97, 103 S. Ct. at 3012, the elements of an offense are not considered in a
vacuum; instead, courts look at the defendant’s actual criminal conduct. Given he
entered a no contest plea, the prosecutor provided the factual basis for Mr. Norgaard’s
plea. The prosecutor stated that the six-year old victim and her family took a trip to
Devil’s Tower on August 11, 2012. When they returned home to Gillette, the victim’s
father invited Mr. Norgaard, who was a close family friend, over to their house. The
children went to bed and the adults stayed outside having drinks. Later in the evening:




                                              6
             Mr. Norgaard left the [victim’s] parents outside and went
             inside for what [the victim’s mother] felt was an extended
             period of time. [The mother] needed to use the restroom so
             she also went inside.

                    [The mother] noticed [the victim’s] door was open and
             noted that it would be unusual because [the victim] always
             closed her door to keep the cat out. [The mother] went into
             [the victim’s] room and found her awake. [The victim]
             reported to [the mother] that Uncle Day had woken her up.
             Uncle Day is what the children called Mr. Norgaard.

                    [The mother] asked why Mr. Norgaard had been in her
             room and [the victim] reported that she couldn’t tell. [The
             mother] asked again and [the victim] reported that Mr.
             Norgaard touched her butt crack. [The mother] asked if he
             had done anything else and [the victim] reported he kissed my
             pee-pee. [The mother] asked [the victim] what pee-pee meant
             and [the victim] told her the red part.

                    [The mother] informed [the father] of what [the
             victim] had told her and immediately took [the victim] to the
             hospital where a SANE [sexual assault nurse examiner] nurse
             performed a swab of her vaginal and anal area.

The DNA recovered from the swab was consistent with Mr. Norgaard. The victim also
gave an account of the offense to a forensic interviewer. Mr. Norgaard agreed at the
change of plea hearing that the State’s evidence would establish the facts recited by the
prosecutor.

[¶15] The prosecutor also described Mr. Norgaard’s former offense, which he
committed in 1997 when he was nineteen years old. Mr. Norgaard signed a stipulation of
fact in that earlier proceeding and it is part of the record in the present case. The
prosecutor summarized the stipulation of fact as: “Mr. Norgaard after attending a
birthday party drank some beers with the parents, went into the bedroom of a minor child,
four years of age, and performed cunnilingus on the child.” Mr. Norgaard committed that
offense while in the United States Army and was court-martialed and pleaded guilty to
forcible sodomy of a child. Mr. Norgaard was sentenced to twelve months imprisonment,
his military rank was reduced and he was dishonorably discharged.

[¶16] This Court and the United States Supreme Court have recognized that repeat
offenses provide a legitimate basis for more severe penalties. Heinemann v. State, 12
P.3d 692, 699-700 (Wyo. 2000); Rummel v. Estelle, 445 U.S. 263, 276, 100 S. Ct. 1133,


                                           7
1140, 63 L. Ed. 2d 382 (1980) (acknowledging in context of recidivist statutes that the
government has an interest in punishing not only the current offense but “in dealing in a
harsher manner” with repeat offenders). Mr. Norgaard argues, nevertheless, that the
legislature’s categorical determination that a second time sexual abuse offender is
required to spend the rest of his life in prison without the possibility of parole is
unconstitutional. Although he uses the term “categorical” in his argument, he makes no
effort to conduct the comprehensive analysis used by the United States Supreme Court in
such cases. A determination that categorical punishment is cruel and unusual requires an
analysis of such factors as objective indicia of a national consensus on punishment;
comparison of the culpability of the offenders in light of their crimes and characteristics
along with the severity of the punishment; and the penological justification for the
sentencing practice. See, e.g., Graham, 560 U.S. 48, 130 S. Ct. 2011 (mandatory
sentence of life in prison without parole for juveniles in non-homicide cases is
unconstitutionally cruel and unusual); Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455
(2012) (mandatory sentence of life in prison without parole for juvenile offenders in
homicide cases is cruel and unusual punishment).

[¶17] Instead of conducting a complete categorical analysis under the Supreme Court’s
guidelines, Mr. Norgaard simply directs us to three cases where other states have
declared recividist sentences unconstitutional under the Eighth Amendment. In State v.
Davis, 427 S.E.2d 754 (W.Va. 1993) (per curiam), the West Virginia Supreme Court
determined that the appellant had been subjected to cruel and unusual punishment under
that state’s habitual criminal statute which provided that a third felony conviction resulted
in life in prison. The court ruled the sentence was cruel and unusual given all of
appellant’s convictions were for non-violent crimes, including the most recent which
involved breaking and entering into a non-dwelling building and stealing $10.00.

[¶18] State v. Wilson, 859 So.2d 957 (La. Ct. App. 2003) and State v. Brooks, 889 So.2d
1064 (La. Ct. App. 2004) were Louisiana court of appeals cases. Although Mr. Norgaard
suggests these cases were decided on the basis of the Eighth Amendment, the defendants’
sentences were actually declared excessive in violation of the Louisiana Constitution,
which prohibits sentences that are cruel, excessive or unusual. LSA Const. art 1, § 20.
The focus in Wilson was on the specific Louisiana constitutional language which
prohibits excessive sentences and the Louisiana law that has developed around that
language. Using that particular analysis, the court declared Wilson’s sentence of life in
prison under Louisiana’s habitual offender statute excessive. Although Wilson’s most
recent conviction was for robbing a bank by demanding money while holding his hand in
his pocket, his three prior convictions were for non-violent crimes, including two
convictions for issuing worthless checks and one for possession of stolen property. The
court noted that, while Wilson deserved serious punishment, life in prison was excessive
taking into account that, at the time of the robbery, he was suffering from a host of
personal and financial issues. Wilson, 859 S.2d at 964. The court conducted a similar



                                             8
analysis in Brooks, 889 So.2d at 1070, when it declared a mandatory sentence of life in
prison for possession of cocaine by a habitual offender to be excessive.

[¶19] The three cases cited by Mr. Norgaard are obviously distinguishable from the case
at bar. The Louisiana cases interpreted a constitutional prohibition against excessive
sentences and its attendant procedures which do not exist in Wyoming. Unlike the
crimes at issue in Davis, Wilson, and Brooks, Mr. Norgaard’s crimes were committed
upon young children, the most vulnerable of victims, and involved very serious criminal
conduct of performing oral sex upon four and six year old victims. Mr. Norgaard’s
repeat sexual offenses are the type of conduct § 6-2-306(e) was intended to address.

[¶20] In Heinemann, 12 P.3d at 699-700, we considered the constitutionality of Wyo.
 Stat. Ann. § 6-2-306(d)5 which mandated a sentence of life in prison without parole for
 three convictions of listed sex offenses. We rejected Heinemann’s claim that his sentence
 was disproportional to his crime, stating:

                      In his final attack on his sentence, Heinemann contends
                  that his life sentence is disproportional to the crimes of which
                  he stands convicted. He claims that he was essentially
                  sentenced to life for, assuming guilt in all cases, grabbing the
                  breasts of two girls and engaging in a game of strip poker in a
                  non-consensual fashion. In reality, Heinemann became
                  qualified for a life sentence not by the offenses with which he
                  was charged in Wyoming, but by the demonstrable fact that
                  he is a sexual predator who is a habitual sex offender. The
                  intent of the enhanced sentencing provision is to protect the
                  public from individuals who have demonstrated that they are
                  unwilling or unable to conform their conduct to the laws of
                  this state. By his proven conduct, Heinemann has
                  demonstrated, to our satisfaction, that he is a repeat sex
                  offender, despite the failure of some of his attempts because
                  of police interference or victim resistance. The need to protect

5
    The version of § 6-2-306(d) (2000) at issue in Heinemann stated in relevant part:

          (d) An actor who is convicted of sexual assault shall be punished by life imprisonment
          without parole if the actor has two (2) or more previous convictions for any of the
          following designated offenses, which convictions resulted from charges separately
          brought and which arose out of separate occurrences in this state or elsewhere: . . . [list of
          predicate offenses].

The former statute, therefore, provided for “three strikes” before the mandatory penalty of life
imprisonment without parole would apply. Section 6-2-306 has been modified over the years
and, in 2007, subsection (e) was added which provided a “two strike” rule for certain crimes.



                                                        9
              society is patent, and no justification is presented to persuade
              this Court that it should refuse to invoke the enhanced
              sentencing statute until Heinemann succeeds in inflicting
              injury or worse in three more sexual assaults.

Id.

[¶21] We have discussed habitual criminal statutes and their enhanced penalties in
other cases. In Daniel v. State, 2003 WY 132, 78 P.3d 205 (Wyo. 2003), this Court
stated that the obvious intent of the legislature in adopting recidivist statutes was to
remove “from society those recidivists who continue to commit felonies.” Id., ¶ 33, 78
P.3d at 216. In Brown v. State, 2004 WY 119, ¶¶ 16-17, 99 P.3d 489, 496-98 (Wyo.
2004), we relied upon Daniel to uphold Brown’s challenge, as cruel and unusual, of his
consecutive life sentences for contemporaneous convictions of four counts of second
degree sexual assault. Brown’s sentence passed constitutional muster even though he did
not have a prior criminal history of sexual assaults. Id.

[¶22] Mr. Norgaard, like the defendants in our earlier cases, was not sentenced simply
for a single offense. He was sentenced to spend the remainder of his life in prison
because he is unwilling or unable to conform to society’s mores against using children for
sexual gratification. Mr. Norgaard committed both of his crimes as an adult, although the
crimes were fifteen years apart. He argues that he was never given the opportunity to
reform as his court-martial sentence did not include treatment or rehabilitation. While
that was unfortunate, we also recognize that Mr. Norgaard could have, and should have,
obtained counseling and treatment on his own to deal with his unacceptable proclivities.
He obviously knew his conduct was criminal and morally wrong as he had previously
been convicted of a similar offense and apparently told his six year old victim in this case
not to tell. Mr. Norgaard’s sentence was not grossly disproportionate to his crime, and
under our precedent, it is unnecessary to consider the other Solem factors to conclude the
sentence did not violate the Eighth Amendment to the United States Constitution. See
Oakley and Tucker, supra.

       2. Wyoming Constitution, Art. 1, § 14

[¶23] Wyoming Constitution, Art. 1, § 14 states in relevant part: “Excessive bail shall
not be required, nor excessive fines imposed, nor shall cruel or unusual punishment be
inflicted.” Mr. Norgaard argues the state constitution provides greater protection than the
federal provision because it is phrased in the disjunctive, cruel or unusual, instead of the
conjunctive used in the Eighth Amendment, cruel and unusual. He claims, therefore, that
he is only required to show that the sentence was either cruel or unusual before he is
entitled to relief and focuses his argument on the unusual element.




                                            10
[¶24] The United States Constitution provides minimum requirements for constitutional
protections and states are required to ensure their laws do not provide less protection than
the federal requirements. Pierce v. State, 2007 WY 182, ¶ 13, 171 P.3d 525, 530 (Wyo.
2007); O’Boyle v. State, 2005 WY 83, ¶ 23, 117 P.3d 401, 408 (Wyo. 2005). A state
constitution can, however, provide greater protection than its federal counterpart.
O’Boyle, ¶ 23, 117 P.3d at 408.

[¶25] Mr. Norgaard asserts this Court has recognized greater protection under Art. 1, §
14 than the Eighth Amendment by considering the terms “cruel” and “unusual”
separately. Although it is true that the wording of the federal and state provisions is
different, we have never conducted a comprehensive analysis to determine precisely how
that difference equates to greater protection. The cases often cited by litigants for the
proposition that the “cruel or unusual” language provides greater protection than the
Eighth Amendment do not, in fact, say that. See Johnson v. State, 2003 WY 9, ¶¶ 35-37,
61 P.3d 1234, 1249 (Wyo. 2003); Sampsell v. State, 2001 WY 12, ¶¶ 10-11, 17 P.3d 724,
727-28 (Wyo. 2001). In fact, the Sampsell case discusses the term “unusual” in reference
to the Eighth Amendment and cases interpreting it, and does not even mention the
Wyoming constitutional provision. In Johnson, ¶¶ 35-37, 61 P.3d at 1249, we performed
a cursory analysis of the individual terms; however, we did not determine, practically,
how that equates to greater protection. More recently, we pointed out in Bear Cloud v.
State, 2014 WY 113, ¶ 144, 334 P.3d 132, 137 (Wyo. 2014), that it is not enough for a
proponent of a different interpretation of the Wyoming constitutional provision
prohibiting cruel or unusual punishment to point out that the language is different from
the federal language. See also Duran v. State, 363 S.W.3d 719 (Tex. Ct. App. 2011)
(interpreting Texas constitutional prohibition against “cruel or unusual punishments” to
be identical to the Eighth Amendment “cruel and unusual” language).

[¶26] “Recourse to our state constitution as an independent source for recognizing and
protecting the individual rights of our citizens must spring not from pure intuition, but
from a process that is at once articulable, reasonable and reasoned.” Saldana v. State,
846 P.2d 604, 622 (Wyo. 1993) (Golden, J., concurring). The analysis required to
establish greater protection under the state constitution involves a systematic review of
applicable criteria, which may include the six non-exclusive neutral criteria recognized in
Saldana, 846 P.2d at 622: “1) the textual language of the provisions; 2) differences in the
texts; 3) constitutional history; 4) preexisting state law; 5) structural differences; and 6)
matters of particular state or local concern.” O’Boyle, ¶ 24, 117 P.3d at 408-09.
Although analysis of each criterion may not be necessary or helpful in any particular
instance, Mr. Norgaard makes no attempt to conduct any such analysis in this case.




                                             11
[¶27] Nevertheless, we will follow the example set out in Johnson and conduct a simple
investigation into whether Mr. Norgaard’s sentence was unusual in constitutional terms.6
Mr. Norgaard begins his argument that his sentence was unconstitutionally unusual with
the proposition that repeat sex offenders are the only persons in Wyoming subject to a
mandatory sentence of life in prison without parole. Mr. Norgaard correctly states that
even murderers have the chance of being granted a sentence of life in prison while
retaining the eventual possibility of being paroled. The penalties for first degree murder
include death, life imprisonment without parole, or life imprisonment. Wyo. Stat. Ann. §
6-2-101 (LexisNexis 2013). It is, however, difficult to compare the two sentencing
schemes because murderers are subject to both a more severe penalty than repeat sex
offenders—death, and a less severe penalty—life imprisonment with possibility of parole.

[¶28] In addition, as the Oregon Supreme Court pointed out when faced with a similar
argument in State v. Wheeler, 175 P.3d 438, 453 (Or. 2007) (en banc), the crimes and the
reasoning behind the attendant punishments are different. Wheeler claimed that a
presumptive sentence of life in prison without the possibility of parole was
disproportionate to his sex crimes because a murderer could possibly be released after
serving a twenty-five year minimum term. Id. The court aptly stated: “[t]hat argument,
of course, ignores the fact that [the Oregon statute] is a recidivism statute that applies to
the defendant only because he has two prior felony convictions for sex crimes.” The fact
that a murderer with no prior conviction could be subject to a less severe presumptive
sentence than a repeat felony sex offender did not make the recidivism statute
disproportionate. Id. Moreover, a sentencing scheme that makes a sentence mandatory,
without providing the sentencing court with discretion, is not necessarily
unconstitutionally unusual. As the United States Supreme Court recognized in Harmelin,
501 U.S. 957, 994-95, 111 S. Ct. 2680 “[s]evere, mandatory penalties may be cruel, but
they are not unusual in the constitutional sense, having been employed in various forms
throughout our Nation's history.” 7

[¶29] Mr. Norgaard maintains that the evolving standards of decency in a maturing
society may prohibit punishment that was once acceptable. See Trop, 356 U.S. at 101, 78
S. Ct. at 598; Graham, 560 U.S. at 58-59, 130 S. Ct. at 2020. He does not, however,
provide any authority to demonstrate that the evolving standards of decency demand that
he, as a repeat child sex abuser, should be accorded a less severe sentence or the right to
eventual parole. Indeed, an argument can be made that society has, in recent years,


6
  We recognize that the argument propounded by Mr. Norgaard and our analysis includes elements similar
to elements two and three of the Solem test for proportionality. See ¶ 11, supra.
7
  This is an interesting statement in light of Mr. Norgaard’s argument that, in order to be considered
unconstitutional in Wyoming, a sentence has only to be shown to be either cruel or unusual and his focus
is on the “unusual” term. Although we make no ruling on this matter, it would seem, under this
precedent, it would be easier to show that a sentence is cruel than to show it is unusual.


                                                  12
evolved to demand greater protection for the victims and potential victims of sexual
predators.

[¶30] The American criminal justice system has two general objectives—to punish
wrongdoers and prevent future harm. Within each of these objectives are more specific
goals like rehabilitation of offenders, etc. See Prevention versus Punishment: Toward a
Principled Distinction in the Restraint of Released Sex Offenders, 109 Harv. L. Rev.
1711 (1996) [hereinafter referred to as Prevention versus Punishment]. See also Graham,
560 U.S. at 71-74, 130 S. Ct. at 2028 (listing the penalogical goals of retribution,
deterrence, incapacitation and rehabilitation in the context of a categorical challenge to a
sentencing scheme under the Eighth Amendment). In response to these objectives, many
states and the federal government have enacted enhanced punishments for repeat sex
offenders and laws aimed at deterring recidivism by released offenders, including
requirements for registration with local authorities after release from custody. See K.
Pogue, Crimes; Sentence Enhancement – Sex Offenses: One Strike You’re Out,” 26
Pac.L.J. 240 (1995) (reviewing California enhanced punishment laws); Wyo. Stat. Ann. §
7-19-302 (LexisNexis 2013) (mandating registration of sex offenders in Wyoming);
Prevention versus Punishment at 1711 (reviewing the trend of jurisdictions requiring
registration and other forms of notification and identification after release from custody).
The Oregon Supreme Court noted in Wheeler, 175 P.3d at 453, that the legislature could
legitimately choose to punish serial sex offenders more harshly than repeat offenders of
other crimes “because sex crime victims often are young and vulnerable to adult
coercion, because of the possibility of recidivism by sex offenders, or because of the
severity of the impact of such crimes on the victims.” See also State v. Brim, 789
N.W.2d 80, 88 (S.D. 2010) (stating a harsh sentence was appropriate for the defendant’s
convictions for child sex crimes because of the high likelihood of recidivism).

[¶31] Although we have not conducted a comprehensive review of all jurisdictions
within the United States, a brief survey of various state laws confirms that Wyoming is
certainly not alone in mandating very severe punishments for repeat sex offenders. Our
neighbor to the north, Montana, has a statutory scheme similar to Wyoming. It mandates
a sentence of life in prison without parole for a second offense of sexual intercourse
without consent and/or sexual abuse of children. Mont. Code Ann. § 46–18–219. In
State v. Webb, 106 P.3d 521, 529-30 (Mont. 2005), the Montana Supreme Court ruled
that the fact the defendant would never be eligible for parole even if he rehabilitated
himself did not render the sentence cruel and unusual.

[¶32] Similarly, South Carolina law requires that upon a second conviction of a “most
serious crime,” which includes any degree of criminal sexual conduct with minors, a
defendant must be sentenced to life imprisonment without parole. State v. Sosbee, 637
S.E.2d 571, 573, n.2 (S.C. Ct. App. 2006), citing S.C.Code Ann. § 17-25-45(A), (B)
(2003 & Supp. 2005). Oklahoma punishes a second conviction of sexual abuse of a
minor with a sentence of “life without parole.” 21 Okla. Stat. Ann. § 51.1a. In Wheeler,


                                            13
175 P.3d at 452-54, the Oregon Supreme Court upheld the constitutionality of a statute
which prescribed a presumptive sentence of life imprisonment without the possibility of
parole when a defendant was convicted of a felony sex crime after having been
previously convicted at least two times for felony sex crimes. In Duran, 363 S.W.3d at
724, a Texas court of appeals held that a mandatory life sentence for a repeat sexual
offender did not violate either the Eighth Amendment or the Texas Constitution.

[¶33] Florida actually has more severe penalties than Wyoming because it mandates a
sentence of life in prison without possibility of parole for a first offense of sexual battery
upon a child. Fla. Stat. Ann. §§ 794.011 and 775.082(1) (1999). Florida courts have
upheld the sentencing scheme in the face of constitutional challenges under the Eighth
Amendment and the Florida Constitution. See Jones v. State, 861 So.2d 1261 (Fla. Ct.
App. 2003); Adaway v. State, 864 So.2d 36 (Fla. Ct. App. 2003). Similarly, in State v.
Bartlett, 571 S.E.2d 28 (N.C. Ct. App. 2002), a North Carolina court of appeals upheld a
sentence of life in prison for a defendant’s conviction of three counts of first degree
sexual offense against his children even though he was a first time offender.

[¶34] As this brief survey demonstrates, Wyoming’s statute is more severe than some
states and less severe than others. It cannot, therefore, be considered constitutionally
unusual.

[¶35] Affirmed.




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