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Phon v. Commonwealth

Supreme Court of Kentucky

April 26, 2018


          ON REVIEW FROM COURT OF APPEALS CASE NO. 2014-CA-000073 WARREN CIRCUIT COURT NOS. 96-CR-00599 & 96-CR-00599-005

          COUNSEL FOR APPELLANT: Timothy G. Arnold Department of Public Advocacy Renee Sara VandenWallBake Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason Bradley Moore Assistant Attorney General Susan Roncarti Lenz Assistant Attorney General



          KELLER, JUSTICE.


         In August of 1996, Sophal Phon (Phon), along with four other gang members, participated in the brutal murder of two people and the deadly assault of a twelve-year-old girl. Phon was under the age of eighteen at the time of the murders. He ultimately entered a guilty plea before the Warren Circuit Court and a jury was empaneled for a sentencing hearing. After a full opportunity to present evidence, the jury recommended that Phon be sentenced to life imprisonment without the possibility of parole ("LWOP"). The Warren Circuit Court sentenced Phon accordingly. Phon now appeals the denial of his third Rule of Criminal Procedure (RCr) 11.42 motion and his second Rule of Civil Procedure (CR) 60.02 motion. For the foregoing reasons, this Court affirms in part and reverses in part the opinion of the Court of Appeals and remands to the Warren Circuit Court.

         I. BACKGROUND

         Phon, a member of a gang, entered the home of Khamphao Phromratsamy and Manyavanh Boonprasert in August 1996. At the direction of the gang leader, Phon killed Khamphao and Manyavanh, execution style. He also shot their twelve-year-old daughter in the head but she miraculously survived. Phon claimed that the then twenty-six-year-old leader of the gang had instructed him to execute the victims, and he complied in fear of retribution.

         Phon and the five other gang members were charged and indicted in 1996, when Phon was sixteen years old.[1] Phon was indicted on two counts of murder; assault, first degree; robbery, first degree; and burglary, first degree. The Commonwealth noticed Phon of its intent to seek the death penalty in his case. In order to assist Phon in escaping this harshest penalty, Phon's attorney recommended that he enter a guilty plea and they present a case of mitigation to a jury for sentencing. Due to the recently-passed 1998 House Bill 455 in Kentucky, the sentence of LWOP was a new statutory punishment. Phon consented that the sentence be available to the jury as an option.[2] The Commonwealth still sought the death penalty before the jury.

         Phon presented a robust case of mitigation evidence to the jury. His family members and experts testified about: Phon's upbringing in a politically hostile and tyrannical country; his family's refuge in Thailand; how three of Phon's brothers had died of starvation during their time of refuge; the deplorable and inhumane conditions in the refugee camp; the tragic death of Phon's younger brother after they had reached the United States; and Phon's IQ of 74 and the effect it had on his judgment. After hearing all the evidence, the jury was given several options for sentencing: death, LWOP, life without the possibility of parole for 25 years (LWOP 25), life imprisonment, or twenty years or more. The jury, after finding the presence of an aggravator at the time of the murders, recommended that Phon be sentenced to LWOP, which was subsequently imposed by the circuit court.

         Phon filed his first RCr 11.42 motion before his formal sentencing, . claiming ineffective assistance of counsel for failing to explain the inclusion of LWOP as an available penalty and the failure to make a timely appeal, among other corollary arguments. The trial court denied Phon relief and the Court of Appeals affirmed, finding that the trial court's decision was well-supported and Phon had failed to establish his claim. Phon v. Commonwealth, 51 S.W.3d 456, 458-61 (Ky. App. 2001).

         After the United States Supreme Court's decision in Roper v. Simmons, holding that the death sentence was unconstitutional as applied to-juveniles, see generally Roper v. Simmons, 543 U.S. 551 (2005), Phon filed for further post-conviction relief. The circuit court denied the motion and the Court of Appeals again affirmed. Phon v. Commonwealth, No. 2006-CA-002456-MR, 2008 WL 612283, *1 (Ky. App. March 7, 2008). The Court determined that "Phon was advised by counsel of the then existing possible penalties." Id. at *4. "Just as Phon cannot now change his guilty plea because the maximum penalty would no longer apply, he cannot now obtain a new sentencing hearing simply because the maximum penalty would no longer apply." Id.

         In June 2013, Phon made a third attempt for post-conviction relief, citing new United States Supreme Court cases relating to the imposition of LWOP sentences against juvenile offenders. Phon requested a new sentencing hearing pursuant to RCr 11.42 and CR 60.02. The Court of Appeals denied all relief. This Court granted discretionary review, leading to the appeal before us now.


         Whether to grant relief pursuant to CR 60.02 is a matter left to the "sound discretion of the court and the exercise of that discretion will not be disturbed on appeal except for abuse." Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996) (quoting Richardson v. Brunner, 327 S.W.2d 572, 574 (Ky. 1959)). We also review a trial court's denial of RCr 11.42 relief for an abuse of discretion. Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citations omitted)). However, also presented to this Court are several issues of law including questions of constitutionality and statutory interpretation. On these issues, we review conclusions of law de novo. Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).

         III. ANALYSIS


         Phon's argument to this Court encompasses several interrelated Constitutional claims, both pursuant to, the United States Constitution and the Kentucky Constitution. He claims, first, that LWOP is an unconstitutional sentence for all juveniles, even when the sentencing procedure is discretionary rather than mandatory. Phon next contends that if discretionary LWOP sentencing for juveniles is constitutionally permissible, there must be specific findings that the juvenile in question is "permanently incorrigible" for the sentence to be found constitutionally proportionate to the crime. And last, Phon argues that his sentence is prohibited by Kentucky's Constitution.

         For the reasons stated herein, we affirm the Court of Appeals' opinion in part and hold that LWOP for juveniles is not constitutionally prohibited when the sentencing procedures comply with the holdings of Miller v. Alabama, 567 U.S. 460 (2012). Specifically, there must be an adequate opportunity for the judge or jury sentencing the offender to consider the offender's youth and background to determine whether LWOP is appropriate, given the circumstances of the crime. We hold that there is no specific fact-finding required before imposing LWOP in these cases and Phon's sentence was not unconstitutionally disproportionate to his crime. Additionally, we hold that the Kentucky Constitution does not prohibit juveniles from being sentenced to LWOP under a discretionary, thorough sentencing procedure.

         1. The Eighth Amendment of the Federal Constitution does not prevent the discretionary imposition of LWOP as to juveniles.

         Phon first argues that his sentence is already prohibited by the Eighth Amendment of the United States Constitution, pursuant to precedent from the United States Supreme Court. Relevant to his argument are two integral cases: Miller v. Alabama and Montgomery v. Louisiana. Based on the language of those cases, however, we hold that the United States Supreme Court has limited its absolute prohibition to mandatory LWOP sentences for juveniles.

         a) Miller v. Alabama.

         Miller v. Alabama involved two fourteen-year-old offenders who had each been convicted of murder and sentenced to LWOP. 567 U.S. at 465. In each case, the state law required the LWOP sentence without any consideration of each offender's youth, background, or other circumstances. Id. The Court held "that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments." Id.

         "The Eighth Amendment's prohibition of cruel and unusual punishment 'guarantees individuals the right not to be subjected to excessive sanctions.'" Id. at 469 (quoting Roper, 543 U.S. at 560). That right... flows from the basic 'precept of justice that punishment for crime should be graduated and proportioned'' to both the offender and the offense." Miller, 567 U.S. at 469 (quoting Roper, 543 U.S. at 560 (quoting Weems v. United States, 217 U.S. 349, 367 (1910))). Thus, "proportionality is central to the Eighth Amendment." Miller, 567 U.S. at 469 (quoting Graham v. Florida, 560 U.S. 48, 59 (2010)). Proportionality is then viewed "according to ' 'the evolving standards of decency that mark the progress of a maturing society.' " Miller, 567 U.S. at 469 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 1010 (1958) (plurality opinion))).

         The Court reflected on its recent opinions in Roper and Graham. "Roper held that the Eighth Amendment bars capital punishment for children, and Graham concluded that the Amendment also prohibits a sentence of [LWOP] for a child who committed a nonhomicide offense." Miller, 567 U.S. at 470. Following the logic and understanding in those cases, the Court recognized "that children are constitutionally different from adults for purposes of sentences." Id. at 471. Especially important in that distinction is that the usual "penological justifications" for certain sentences are either lessened or completely inapplicable to juvenile offenders. See id. at 472-73. Thus, "[m]ost fundamentally ... youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole." Id. at 473.

         Contrary to this distinction, the sentencing schemes at issue in Miller treated each offender the same, without recognizing the diversity:

But the mandatory penalty schemes at issue here prevent the sentence from taking account of these central considerations. By removing youth from the balance-by subjecting a juvenile to the same [LWOP] sentence applicable to an adult-these laws prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender. ... [I]mposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children.

Id. at 474 (emphasis added). The Court emphasized the harshness of mandatory penalties as they, "by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it." Id. at 476. The Court held "that the Eighth Amendment forbids a sentencing scheme that mandates [LWOP] for juvenile offenders." Id. at 479. Underpinning its holding was the Court's recognition that "[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment." Id.

         The Court declined to address whether the Eighth Amendment categorically bans LWOP as a sentence for any age group but emphasized that it felt "appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." Id. The Court, in fact, specifically stated that it "[did] not foreclose a sentencer's ability to make that judgment in homicide cases" but merely required that the sentence "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480.

         b) Montgomery v. Louisiana.

         After the Miller decision, the United States Supreme Court was faced with whether that decision was retroactive in Montgomery v. Louisiana. ___U.S. ___, 136 S.Ct. 718, 725 (2016). The Court determined that the retroactivity of the. ruling depended upon whether the holding was procedural or substantive in nature. Id. at 729-30. "It follows, as a general principle, that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced." Id. at 731.

         The Court determined that "Miller announced a substantive rule that is retroactive in cases on collateral review." Id. at 732. Recognizing the general holding of Miller, the Montgomery Court went further and stated that "Miller, then, did more than require a sentencer to consider a juvenile offender's youth before imposing [LWOP]; it established that the penological justifications for [LWOP] collapse in light of the distinctive attributes of youth." Id. at 734 (quoting Miller, 567 U.S. at 472). Because LWOP was deemed appropriate for only "the rare juvenile offender whose crime reflects irreparable corruption, " Montgomery, 136 S.Ct. at 734 (quoting Miller, 567 U.S. at 479-80 (quoting Roper, 543 U.S. at 573)), the ruling also "rendered [LWOP] an unconstitutional penalty for 'a class of defendants because of their status'-that is, juvenile offenders whose crimes reflect the transient immaturity of youth." Montgomery, 136 S.Ct. at 734 (citing Penry v. Lynaugh, 492 U.S. 302, 330 (1989)). Thus, Miller dealt with a substantive rule rather than merely a procedural one.

         Although the Court commented on the substantive nature of the rule, it limited the holding to "requir[ing] a sentencer to consider a juvenile offender's youth and attendant characteristics before determining that [LWOP] is a proportionate sentence." Montgomery, 136 S.Ct. at 734 (citation omitted). The Court once again emphasized the differences between juvenile offenders and adult offenders, focusing on the need for individualized assessment of the youthful characteristics of the offender. The Court determined that Miller, "[l]ike other substantive rules, ... is retroactive because it' 'necessarily carr[ies] a significant risk that a defendant''-here, the vast majority of juvenile offenders- 'faces a punishment that the law cannot impose upon him.' m Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (quoting Bousley v. United States, 523 U.S. 614, 620 (1998))). Thus, the rule applied retroactively to the petitioner's case before the Court.

         c) The Supreme Court's rulings do not forbid discretionary LWOP sentences for juveniles.

         Phon argues that the Supreme Court's rulings forbidding LWOP for juvenile offenders applies to his case because “[t]he jury in this case did not consider or make the requisite findings under Miller." Because there was no specific finding by the jury or the court that Phon's crimes "reflect irreparable corruption" rather than being a result of "transient immaturity, " Phon argues that the LWOP sentence was therefore unconstitutionally disproportionate, or, at least, may be and, therefore, Phon is entitled to re-sentencing.

         However, Phon conflates the dicta in the United States Supreme Court's opinion discussing the qualities of youthful offenders with its much narrower holding. The limited holding in Miller was clear:

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of. their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment.

Miller, 567 U.S. at 489. The Court did not outlaw LWOP as a possible sentence for juveniles but deemed that a mandatory sentence of LWOP without attention to any of the attendant circumstances of youth violates the requirement of proportionality under the Constitution.

         Although both Miller and Montgomery caution courts about the "rare" juvenile offender whose crimes merit LWOP, this language is dicta and guidance. Even Montgomery was very clear in the specific holding and directive to the courts: "Miller requires a sentencer to consider a juvenile offender's youth and attendant characteristics before determining that [LWOP] is a proportionate sentence." Montgomery, 136 S.Ct. at 734 (citing Miller, 567 U.S. at 483) (emphasis added). The Montgomery court also clarified what was and was not required under Miller. "Miller, it is true, did not bar a punishment for all juvenile offenders, as the Court did in Roper or Graham. Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility." Id.

         Based on this language, we cannot hold that all discretionary sentencing schemes permitting LWOP as a sentence for juvenile offenders offend the parameters of the Eighth Amendment. In contrast to these mandatory schemes, Phon had an extensive sentencing hearing. He presented multiple witnesses to present a case of mitigation. His attorneys expressed the limits of his judgment due to his younger age. His family members explained his harsh upbringing. All of these factors were presented to the jury. That jury had an opportunity to consider his age and his "youthful" characteristics. The Constitution guarantees an opportunity for the sentencer to consider these characteristics; it does not require that the sentencer accept those ...

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