Norgaard v. State

• Decision Date: 09 December 2014
• Docket Number: No. S–14–0081.,S–14–0081.
• Citation: 2014 WY 157,339 P.3d 267
• Parties: David Michael NORGAARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

339 P.3d 267

2014 WY 157

David Michael NORGAARD, Appellant (Defendant)

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–14–0081.

Supreme Court of Wyoming.

Dec. 9, 2014.

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.

Opinion

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 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 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 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 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:

[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,...