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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 101,515 STATE OF KANSAS, Appellee, v. ROBERT L. ROBISON, JR., Appellant.

SYLLABUS BY THE COURT

1. The determination of whether a sentence is a cruel or unusual punishment 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 inquiries, and no one factor controls. Where the issue is not raised before the district court and no factual inquiries have been made regarding allegations that the sentence imposed is cruel or unusual, it cannot be considered for the first time on appeal.

2. K.S.A. 21-4643(d) mandates a minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.

3. When an appellate court reviews a district court's determination as to whether mitigating circumstances presented under K.S.A. 21-4643(d) are substantial and compelling, an abuse of discretion standard of review applies. K.S.A. 21-4643(d) grants broad discretion, meaning judicial discretion is abused only when no reasonable person would take the view adopted by the district judge. In order for an appellate court to set aside the judge's findings under K.S.A. 214643(d) that there are not substantial and compelling reasons to impose a departure, the defendant must demonstrate an abuse of discretion in the district judge's findings.

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Appeal from Lyon district court; JEFFRY J. LARSON, judge. Judgment of the district court is affirmed. Opinion filed January 22, 2010.

Matthew J. Edge, of the Kansas Appellate Defender Office, argued the cause and was on the brief for the appellant.

Amy L. Aranda, assistant county attorney, argued the cause, and Mark Goodman, county attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

DAVIS, C.J.: Robert Robison, Jr., pleaded no contest to a charge of aggravated indecent liberties with a child. He was sentenced to life without the possibility of parole for 25 years, with lifetime postrelease supervision. Robison appeals his life sentence. We affirm.

FACTS

After negotiations between the defendant and the State involving two counts of aggravated indecent liberties with a child, one count was dismissed, and Robison entered his plea of no contest to one count of aggravated indecent liberties with a child in violation of K.S.A. 213504(a)(3)(A). His motion for a downward durational departure was denied. He was sentenced to a mandatory life sentence without the possibility of parole for 25 years pursuant to K.S.A. 214643, "Jessica's Law," with lifetime postrelease supervision. He made no claim before the trial court that his sentence was unconstitutionally cruel or unusual. He now seeks to have this issue considered on appeal. We decline.

The sentence was imposed on Robison, already a registered sex offender, for lewd fondling or touching of D.M.L, a 9-year-old child, on or between August 11, 2007, and November 26, 2007. Evidence had also been presented on a second amended count of aggravated indecent liberties with D.M.L by Robison. That event had occurred after the date of the offense of conviction and was discovered by D.M.L.'s aunt as it was occurring on November

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27, 2007. Investigation of that event eventually led to the discovery of the earlier act of conviction. The second count was withdrawn pursuant to negotiations leading to the nolo contendere plea.

In addition to his motion requesting a downward durational departure sentence, Robison also presented arguments for departure at his sentencing hearing. The district judge concluded, however, that none of the reasons asserted by Robison were substantial and compelling reasons to depart from the mandatory sentence. The judge also noted Robison's indecent liberties conviction in 2000.

Robison appealed his sentence, arguing that the district court erred by denying his motion for a downward durational departure sentence. He also asked that we address his claim that the sentence imposed is cruel or unusual and must be set aside.

This court's jurisdiction is under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence).

Discussion

(1) Whether the mandatory minimum sentence in K.S.A. 21-4643 violates the Eighth Amendment to the United States Constitution and Section 9 of the Bill of Rights of the Kansas Constitution Robison argues his life sentence violates the right against cruel or unusual punishment under Section 9 of the Bill of Rights of the Kansas Constitution, and the prohibition of cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

The determination of whether a sentence is a cruel or unusual punishment 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 inquiries, and no one factor controls. Robison's arguments fail. Recently in State v. Mondragon, 289 Kan. ___, Syl.

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