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.
[¶ 2] Mr. Norgaard presents the following issues on appeal:
The State presents a single appellate issue:
(Emphasis in original).
[¶ 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)
[¶ 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 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.
[¶ 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.
[¶ 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:
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:
[¶ 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:
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.
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, 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
[¶ 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, 189 W.Va. 59, 427 S.E.2d 754 (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 So.2d at 964. The court conducted a similar 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)
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.
[¶ 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
[¶ 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.
[¶ 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.
[¶ 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.
[¶ 28] In addition, as the Oregon Supreme Court pointed out when faced with a similar argument in State v. Wheeler, 343 Or. 652, 175 P.3d 438, 453 (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
[¶ 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, 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, 325 Mont. 317, 106 P.3d 521, 529-30 (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, 371 S.C. 104, 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
[¶ 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, 153 N.C. App. 680, 571 S.E.2d 28 (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.
Sexual intrusion is defined at Wyo. Stat. Ann. § 6-2-301(a)(vii) as:
Sexual contact is defined at § 6-2-301(a)(vi) as:
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.
