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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 100,510 STATE OF KANSAS, Appellee, v. JOE N. MONDRAGON, Appellant.

SYLLABUS BY THE COURT 1. When an appellate court reviews a district court's determination as to whether mitigating circumstances presented under K.S.A. 2006 Supp. 21-4643(d) are substantial and compelling, an abuse of discretion standard of review applies. K.S.A. 2006 Supp. 21-4643(d) grants broad discretion, meaning judicial discretion is abused when no reasonable person would take the view adopted by the district judge.

2. The determination of whether a sentence is a cruel or unusual punishment because of its length is controlled by a three-factor test stated in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). These factors include both legal and factual inquires, and no one factor controls. Because of the factual inquiries involved, an argument that a sentence is cruel or unusual cannot be considered for the first time on appeal because the State has not been given the opportunity to develop a record on the issue and the district court has not made factual findings.

3. An involuntary commitment under the Sexually Violent Predators Act, K.S.A. 59-29a01 et seq. (SVPA), cannot be compared to a life sentence pursuant to K.S.A. 2006 Supp. 214643(a)(1) for purposes of determining if the sentence is cruel or unusual punishment because an involuntary commitment under the SVPA is not a punishment and not all criminal sex offenders

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can be classified as sexually violent predators under the SVPA, which requires a finding that the offender has a mental abnormality or psychological disorder.

Appeal from Sedgwick district court; JOSEPH BRIBIESCA, judge. Opinion filed December 4, 2009. Affirmed.

Casey J. Cotton, of Law Office of Falk & Cotton, P.A., of Wichita, argued the cause, and Roger L. Falk, of the same firm, was with him on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: As part of a plea agreement, Joe N. Mondragon pled guilty to two counts of aggravated indecent liberties with a child in violation of K.S.A. 2006 Supp. 21-3504(a)(3)(A). For these convictions, he received concurrent sentences of life imprisonment without the possibility of parole for 25 years and postrelease supervision for life pursuant to K.S.A. 2006 Supp. 21-4643(a)(1), commonly known as "Jessica's Law." On appeal, Mondragon claims the district court abused its discretion in denying his motion for a downward durational departure under K.S.A. 2006 Supp. 21-4643(d). For the first time on appeal, he also challenges his life sentences as a cruel or unusual punishment in violation of

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