State v. Jensen6/6/2003
t or it will not be entertained on appeal, State v. Lavy, 121 Idaho 842, 828 P.2d 871 (1992); State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991); State v. Hoffman, 137 Idaho 897, 55 P.3d 890 (Ct.App.2002); State v. Boss, 122 Idaho 747, 838 P.2d 876 (Ct.App.1992), and Eighth Amendment challenges to conditions of confinement, such as claims of inadequate medical care, will not be considered on appeal if they were not presented to the trial court. State v. Drennen, 122 Idaho 1019, 1022-23, 842 P.2d 698, 701-02 (Ct.App.1992); State v. Roseman, 122 Idaho 934, 935- 36, 841 P.2d 1085, 1086-87 (Ct.App.1992). Nevertheless, this Court has customarily and routinely considered claims that sentences violate the Eighth Amendment because of excessive length where that constitutional challenge was not presented to the trial court. See, e.g., State v. Shanahan, 133 Idaho 896, 899, 994 P.2d 1059, 1062 (Ct.App.2000); State v. Thomas, 133 Idaho 682, 688, 991 P.2d 870, 876 (Ct.App.1999); State v. Rogerson, 132 Idaho 53, 57, 966 P.2d 53, 57 (Ct.App.1998). Such Eighth Amendment arguments are so similar to and interrelated with claims of excessiveness under state law reasonableness standards that we perceive no reason to treat the two types of arguments differently with respect to any requirement for raising the issue below. Were we to refuse to consider this variety of Eighth Amendment challenge **1093 *946 because it was not preserved below, more litigation would be spurred in the trial courts as defendants sought to raise the issue through a Rule 35 motion or an application for post-conviction relief. In our judgment, the similarity of the Eighth Amendment and state law challenges to the length of sentences, and the interest of judicial efficiency, call for consideration of the two issues together on appeal even if the Eighth Amendment attack on the length of the sentence was not made in the trial court. Therefore, we will consider Jensen's Eighth Amendment challenge.
The burden of demonstrating that a sentence is cruel and unusual is on the person asserting the constitutional violation. State v. Clay, 124 Idaho 329, 332, 859 P.2d 365, 368 (Ct.App.1993). The Idaho Supreme Court, in State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992), recognized the proportionality test under the Eighth Amendment, as dictated by Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) and modified by Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Hence, it is the modified test as stated in Brown that is the current legal standard for review of a claim of cruel and unusual punishment in Idaho. State v. Robertson, 130 Idaho 287, 288, 939 P.2d 863, 864 (Ct.App.1997). As the Brown Court stated:
We limit our proportionality analysis to death penalty cases and, under the Idaho Constitution ... to those cases which are "out of proportion to the gravity of the offense committed" in the cruel and unusual punishment setting similar to the "grossly disproportionate" analysis of the [E]ighth [A]mendment urged by Justices Kennedy, O'Connor, and Souter in Harmelin.
Brown, 121 Idaho at 394, 825 P.2d at 491. Therefore, this Court must make a threshold comparison of the crime committed and the sentence imposed to determine whether the sentence leads to an inference of gross disproportionality. Robertson, 130 Idaho at 289, 939 P.2d at 865. In light of Jensen's continued resistance to the officers' efforts, as well as his intransigence, we conclude that the consecutive maximum sentences imposed are not grossly disproportionate to his crimes. Accordingly, we affirm the district court's determination that Jensen's sentences were neither excessive nor in violation of the cruel and unusual punishment prohibition.
III.
CONCLUSION
Because Jense
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