Phon v. Com. of Ky.

545 S.W.3d 284

Sophal PHON, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2016-SC-000468-DG

Supreme Court of Kentucky.

APRIL 26, 2018

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.

COUNSEL FOR AMICI CURIAE, THE INSTITUTE FOR COMPASSION IN JUSTICE AND THE FAIR PUNISHMENT PROJECT: Rebecca Ballard DiLoreto.

OPINION OF THE COURT BY JUSTICE KELLER

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, 125 S.Ct. 1183, 161 L.Ed.2d 1 (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.

II. STANDARD OF REVIEW

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

A. PHON'S CONSTITUTIONAL CLAIMS MUST FAIL.

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, 132 S.Ct. 2455, 183 L.Ed.2d 407 (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, 132 S.Ct. 2455. 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, 132 S.Ct. 2455 (quoting Roper, 543 U.S. at 560, 125 S.Ct. 1183 ). "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, 132 S.Ct. 2455 (quoting Roper, 543 U.S. at 560, 125 S.Ct. 1183 (quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910) ) ). Thus, "proportionality is central to the Eighth Amendment." Miller, 567 U.S. at 469, 132 S.Ct. 2455 (quoting Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (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, 132 S.Ct. 2455 (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion) ) ).

The Court reflected on its recent ...