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
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Jason Bradley Moore Assistant Attorney General Susan
Roncarti Lenz Assistant Attorney General
COUNSEL FOR AMICI CURIAE, THE INSTITUTE FOR COMPASSION IN
JUSTICE AND THE FAIR PUNISHMENT PROJECT: Rebecca Ballard
IN PART. REVERSING IN PART, AND REMANDING
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.
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.
and the five other gang members were charged and indicted in
1996, when Phon was sixteen years old. 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. The Commonwealth still sought the death
penalty before the jury.
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.
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).
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.
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
STANDARD OF REVIEW
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).
PHON'S CONSTITUTIONAL CLAIMS MUST FAIL.
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
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.
The Eighth Amendment of the Federal Constitution does not
prevent the discretionary imposition of LWOP as to
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.
Miller v. Alabama.
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
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))).
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.
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
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."
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.
Montgomery v. Louisiana.
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.
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.
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.
The Supreme Court's rulings do not
forbid discretionary LWOP sentences for
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
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
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.
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
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 ...