ime on appeal. The exceptions were identified in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), and are: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. [Defendant] argues that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fundamental right." 288 Kan. at 160, 199 P.3d 1265.
Robison too, citing State v. Puckett, 230 Kan. 596, 640 P.2d 1198 (1982), argued in his brief that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fundamental right.
Notwithstanding this argument, Thomas noted:
"These same arguments were presented by another defendant and rejected by this court in Ortega-Cadelan, 287 Kan. at 161, 194 P.3d 1195. Ortega-Cadelan pled guilty to one count of rape in violation of K.S.A. 21-3502(a)(2) (sexual intercourse with child under 14 years of age). He was sentenced under the same provision as applied to Thomas ... 21-4643(a)(1), and received a mandatory life sentence without the possibility of parole for 25 years and postrelease supervision for life. Ortega-Cadelan appealed his sentence and argued for the first time on appeal that his sentence constituted cruel or unusual punishment." 288 Kan. at 160-61, 199 P.3d 1265.
Thomas concluded:
"We declined to consider Ortega-Cadelan's argument that the sentence offended the constitutional prohibition against cruel or unusual punishment. Citing the three-prong Freeman test, we noted the factors include both factual and legal questions. Despite the defendant's attempt to focus on those factors that raised legal questions, we determined the factual aspects of the test could not be ignored because no sing