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.
[¶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:
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).
[¶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) and one count of second degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(ii) (LexisNexis 2013) 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.
[¶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. ...