SOPHAL PHON V. COMMONWEALTH OF KENTUCKY

Phon, a member of a gang, entered the home of Khatnphao

Phromratsamy and Manyavanh Boonprasert in August 1996. At the direction

of the gang leader, Phon killed Khamphao and Manyavanl;l, 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, anQ. 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 pe:r;ialty, Phon's

attorney recommended ~at 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.

1 There is some dispute as to whether Phon was sixteen or seventeen years old at the time .of the crimes. For purposes of this appeal, we will accept Phon's claim that he was only sixteen.

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Phon consented that the sentence be available to the jury as an option.2 The

Commonwealth still sought the death penalty ~efore 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 7 4 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 (LWQP. 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

2 This Court certified the law for the Attorney General, after Phon had entered a guilty plea and been sentenced, holding that "upon the unqualified consent of the defendant, a sentence of life without parole may be lawfully imposed for capital crimes committed before July 15, 1998." Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky. 2000).

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Phon had failed to establish his claim. Phon v. Commonwealth, 51S.W.3d456,

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 :iuveniles,

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.- Phan 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 Phan cannot now change his guilty plea because the maximum ·

penalty would no longer apply, he cannot now obtain a new sentendng hearing

simply because the ri:laxfrnum 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. Phan 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 relieffor an abuse of

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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 leg8.l 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

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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 ~WOP 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, th~ 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

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. 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 . ~1 that mark the progress ofa matilring 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 Aniendment bars capital punishment for children, and

' Graham cdnclud_ed 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 4 72-73. Thus, "[m]ost

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fundamentally ... youth matters in d~termining 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 juvenHe 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 Eighfu.

·'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) irreleva.ht to imposition of

that harshest prison sentence, such a scheme poses too great a fisk of

disproportionate punishment." Id.

The Court declined to address whether the Eighth Amendment c

_ categorically bans LWOP as a sentence for any age group but emphasized that

it felt "appropriate occasions for sentencingjuveniles 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

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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.

ru,ling 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

authonty 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 "Millet 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 penologicaljustifications for

[LWOP] collapse in light of 'the distinctive attributes of youth. m 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 (quo.ting 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

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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 chara~teristics 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 Cqurt detei-mined that Miller,

"[l]ike other substantive rules, ... is retroactive because it' 'necessarily carr[ies]

a significant risk t!iat a defendant' '-here, the vast majority of juvenile

offenders-· ' 'faces a punishment that the faw cannot impose upon him.' "' 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

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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 .

. I 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 d~cisions 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 unµsual 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 ajuvenile 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 Montgomerfj court also clarified what was and

was not required under Miller. "Miller, it is true, did not bar a punishment for

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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 in

We take great care in reaching our decision today. This case is one of

great import and we understand the need for finality for both the victims_ left

behind and the defendant. Thus, we carefully measure our response and

holding here today. We hold that LWOP for juveniles does not always offend

' the federal or Kentucky constitutions, _so long as it comports with a

discretionary scheme and the defendant has a meaningful opportunity for the

jury to consider mitigating evidence. We hold that Phon's sentencing was

constitutionally permissible. However, under our more recent rulings

regarding penalties allowable under the juvenile code, we hold that Phon's

sentence was statutorily prohibited. As such, we must ·remand for the trial

court to impose the lawful sen.tence of LWOP 25.