Sophal Phon v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: April 26, 2018
• Docket: 2016-SC-0468
• Status: Unpublished

Opinion

RENDERED: ~PRIL 26, 2018 TO BE PUBtISHED

~upmut filnurf nf tit~~~ l 2016-SC-000468-DG [Q) IA1 l&i/11b5'/l1~ {4ol~' be:.. SOPHAL PHON "APPELLANT

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

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

In August of 1996, Sophal Phon (Phon), along with four other gang

members, participated in.th~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 app~als 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 Khainphao

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-rear-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 hru;shest pei;ialty, Phort'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

4~5 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. 2 Phon consented that the sentence be available to the jury as an option.2 The

Commonwealth still sought the death penalo/ oefore 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 (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

Appeal~ 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). , 3 Phon had failed to establish his claim. PhQn 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 unconstitution8.l as applied to juveniles,

see generally Roper v. ~mmons,. 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. March7, 2008). The Court determined that

-"Phon was advised by counsel ofthe then existing possible penalties.. " .Jd. at *4.

"Just as Phon cannot now change his guilty plea because the maximum ·

penalty wou~d no longer apply, he canriot now obtain a new sentendng hearing

simply because the rilaxfrnum 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 reliefp~rsuant 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 )

4 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 discretion:ary LWOP

sentencing for juveniles is constitutionally pe~issible, there mus~ 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 herel.n; we· affirm the Court of Appeals' opinion in

part and hold that LWOP for juveniles is not constitutiona.µy prohibited when

the sentencing proced!:-!res comply with the holdings of Miller v. Alabama, 567

5 ,' 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 'Qefore 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 juve~iles.

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 ' I . 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

6 time pf 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 ofa marl.iring 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))). 1 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 4 71. 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

7 I.

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 juvenile offenders cannot proceed. as though they were not chil~ren.

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 tliat accompanies it) irrelevaht 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 '

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

it felt "appropriate occasions for sentencing juveniles to this harshestpossible

penalty will be uncommon." Id. The Court,· in fact, specifically stated -that it

"[did] notJor~close a sentencer's ability to make that judgment in homicide

8 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

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 "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 m.ore th~ 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 col'!llption,"

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

9 · 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

liniited 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

youthfu_l 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 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 ~efore 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

10 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 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, regard.less of their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes before us violate this principle of proportionality, ai;td so the Eighth Amendment's ban on cruel and un:usual punishment. . !

Miller, 567 U.S. at 489. Tile Court did not outlaw LWOP as a po~slble 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 • ', I

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 MontgomeriJ court also clarified what was and

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

11 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 A.meildment. In contrast to these mandatory ;

schemes, Phon :had an extensive sentencing hearing. He presented multiple

witnesses to present a case of mitiga~on. 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

characteristi~s; it does not_ require that the sentence~ accept those

characteristics as worthy of mitigating an LWOP sentence. As such, Phon's - \ sentencing did not violate the Eighth Amendment of the federal. Constitution as

interpreted. under Miller and Montgomery.

2. This court is unwilling to extend the protections of the Eighth Amendment beyond existing precedent.

As we have concluded that the Supreme Court's precedent does n.ot hold

that discretionary LWOP sentences for juveniles violate·the Eighth Amendment,

we must n9W determine whethet the protectio~s of the Eighth Amendment

should be extended to ban such'sentences under all circumstances. In many

ways, we acknowledge that this discussion is highly theoretica:I as applied in

12 Kentucky. As both the parties in this cas·e recognize, only two prisoners are

servirig LWOP sentences in Kentucky for crimes· committed as juveniles. Phon

is one of those offen_ders. This Court has recognized. that the legislature's.

statutes have limited the harshest sentence for capital offenses committed

. while the offender is a juvenile to LWOP 25. See KRS 640.040; Shepherd v.

Commonwealth, 251 S.W.3d 309 (Ky. 2008). LWOP is not a permissible

sentence for such offenders like Phon under our statutory scheme. However, '

that statutory scheme is always subject to change. As such, it is still

important, both for the instant case and for the constitutional precedent.of this

Court, to understand whether such a sentence is even constitutionally

permissible.

"The Eighth Amendment, in only three words, imposes the constitutional

limitation upon punishments: they cannot be 'cruel and unusual. m Rhodes v.

Chapman, 452 U.S. 337, 345 (1981). The standard for what constitutes "cruel

and unusual" is "flexible and dynamic."· Id. (quoting Gregg v. Georgia, 428 U.S. I 153, 171 (1976)). "No static 'test' can exist by which courts determine whether

conditions of confinement are cruel and unusual, for the Eighth Amendment

'must draw its meaning from the evolving standards of decency that mark the

progress of_a maturing society.m Rhodes, 452 U.S. at 346 (quoting Trop, 356

U.S. at 101).

The. United States Supreme Court classifies its Eighth Amendment

precedent into "two general classifications": "challenges to the length of term- ' . of-years sentences given all the circumstances in a particular case ... [and

13 )

challenges to] the proportionality standard ... [involving] the death penalty."

Graham v. Florida, 560 U.S. 48, 59 (2010). The firs~ type of challenge is an

individualized review that "compar[es] the gravity of the offense arid the severity

of the.sentence." Id. (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991)).

T~e second challenge, however, looks to "the nature of the offense" or to

"characteristics· of the offender" to determine whether the punishment in

question is categorically unconstitutional for that offense or that class of

offender. Graham, 560 U.S. at 60-61.

Here,. Phon makes a combined argument. First, he argues that LWOP for

juveniles is categorically unconstitutional, even under a discretionary

sentencing scheme with an opportunity to present mitigating evidence.

Second, he argues that_ without specific factual findings of incorrigibility, the

sentence is categorically unconstitutiona.I. Within this argument, Phon also

seems to argue that his sentence is disproportionate as applied to him because j

the jury failed to·adequately consider all the mitigating evidence. Thus, we

shall address each of these arguments in turn.

a) A discretionary punishment with constitutional protections does not always equate to cruel and unusual punishment.

First, Phon argues that LWOP for juveniles should be, categorically

banned as unconstitutional under the Eighth Amendment. According !O the

·United States Supreme Court, this requires ·a.n examination of "objective indicia

of society's standard~" and "the exercise of [the Court's] own independent

14 judgment whether the punishment in question violates the Constitution."

Graham, 560 U.S. at 61 (quoting Roper, 543 U.S. at 572).

Amicus has provided this Court a thorough and helpful examination of

the current condition of juvenile LWOP sentences in the nation. ·Although

amicus argues it shows a clear trend that the nation has recognized such a.

sentence is cruel and unusual, this Court is not so convinced by these

objective indicia. Nineteen jurisdictions have abolished LWOP for juveniles, \ .... but still more states allow the sentence while limiting it. Additionally, ·while

Kentucky's statutes do not list LWOP as a permissible. sentence for juveniles,

and have not for over fifty years, that interpretation has not always been so

clear. It was not until this Court's decision in Shepherd v. Commonwealth, 251 . ' '

. S.W.3d 309 (Ky. 2008), that we made clear that LWOP was not a permissible

sentence under the juvenile code. Even that d~cision, which we will discuss

more iri depth, is an.interpretation of the absence of statutory language rather

than a clear legislative directive of exclusion.

An enlightened society's goal should, ideally, be to continue to trench the

dredges ofhumanity_and constantly evolve to better support the existence of

the community. Thus, our "evolVing standards of decency" are constantly

changing and, hopefully, improving. This, while encouraging for our state of

living, creates a difficulty in examining long-past cases in which the

punishment is now being called "cruel and unusual" under the.current

society's standards. "Not bound by the sparing humanitarian concessions of

our forebears, the [Eighth] Amendment also recognizes the 'evolving standards of decency that mark the progress of a maturing society."' Ford v. Wainwright,.

477 U.S. 399, 406 (1986) (quoting Trop, 356 U.S. at 101). The standard is ever

evolving, which is why "[i]n addition to considering the _barbarous methods

generally outlawed in the 18th century, therefore, [courts] take[] into account . ' objective evidence of contemporary values before deterrriining whether a

particular punishment comports with the fundame,ntal human dignity that the

Amendm~nt prote~ts." Ford, 477 U.S. at 406 (citing Coker v. Georgia, 433 U.S ..

584, 597 (1977) (plurality opinion)). So we must look to the standards·of

decency contemporary to the time of Phon's sentence.

At the tim~ Phon was sentenced, he was eligible for the death penalty. At

that time, numerous jurisdictions perinitted capital punis!iment for juveniles.

The United States Supreme Court decision' outlawing such a penalty was not

until 2005. Thus, when we not only examine the evolved standard of decency

currently, but examine the standatds at the time j:>hon was sentenced, there

was no unanimity or agreement as to the proper way to sentence a juvenile

within the context of the brutal circumstances like those of the case at hand.

Thus, we are unconvinced that these state and national trends show us a

clear consensus against the appropriateness of LWOP for juveniles in all

circurn,stances. We agree and acknowledge the United States Supreme Court's

thorough examination of the differences between juveniles and adults, the rare

occasion that may call for such a harsh sentence for juveniles, and the implicit

warning/to use such a sentence sparingly. However, that does not necessarily

' equate to a consensus that the sentence is always, and in every circ:umstance, unacceptable by this Commonwealth, or this nation. But, "[c]ommunity

consensus, . .• while 'entitled to great weight,' is not itself determinative of whether

a punishment is cruel and unusual." Graham, 560 U.S. at 67 (quoting

Kennedy v. Louisiana, 554 U.S. 407, 434 (2008)).

J'hus, we must independently examine whether such a sente~ce affronts

the values inherent in the Eighth Amendment. "The judicial exercise of \ . independent judgment requires consideration of the culpability of the offenders

at issue in light of their crimes and characteristics, along with the severity of .

the punishment ih question." Graham, 560 U.S. at 67 (citations omitted). We

mus_t remember that a categorical ban determines that the sentence is

disproportionate in all circumstances or the danger of utilizing a

disproportionate sentence is too great to allow even the option for the sentencer

to utilize it. See Graham, 560 U.S. at 77-78. In Graham, the Supreme Court

distinguished the rionho~cide case before it with juvenile offenders accused of

homicide. See id. at 69. The Court recogriized a significant distinction

"between homicide and other serious violent offenses against the individual."

Id. (citing Kennedy, 554 U.S. at 436-39).

In a concurring opinion to Graham, Chief Justice Roberts_disagreed with

the creation of a new categorical rule, instead believing that the standard

narrow proportionality review would be sufficient to protect the constitutional

rights at issue. 'Graham, 560 U.S. at 86 (Roberts, C.J., concurring in the ' . .

judgment). _The Chief Justice recognized that: (

17 f\ more re.strained approach is especially appropriate in light of the Court's apparent recognition that -it is perfectly legitiinate for a juvenile to recei~e a sentence of life without parole for committing murd~r. This means that there is nothing inherently unconstitutional about imposing sentences of life without parole on juvenile offenders; rather, the constitutionality of such sentences depends on the particular crimes for which they are imposed. r Id. at 94. Although ajuvenile's culpability may be more diminished than

similar adult offenders, "that does not mean that their culpability is always

insufficient to justify a life sentence." Id. (citation omitted). In fact, the Chief

_Justice r~cognized that "[s]ome crimes are so heinous, and some juvenile

offenders so culpable, that a sentence of life without parole may be entirely

justified under the Constitution." Id. at 96. Instead, he recommended that the

Court recognize the disproportionate nature of Graham's sentence under an

individualized review and continue to allow judges and juries the discretion to

impose LWOP sentences in certain nonhomicide, juvenile cases. See id. at 96.

"[T]he whole enterprise of proportionality review is premised on the justified'

assumption that 'courts are competent to judge ·the gravity of an offense, at

least on a relative scale."' Id. (quoting Solem v. Helm, 463 U.S. 277, 292

(1983)). Thus, the ultimate decision should be left to judges and juries to apply

this harsh penalty upon the most heinous crimes and the traditional

proportionality review should be employed to ensure that each sentence is

constitutionally appropriate.

We, like Chie(Justice Roberts; remain unconvinced that certain

incidents of crime will never rise to the level of culpability and incorrigibility

that would warrant the imposition of LWOP on a juvenile. We acknowledge

18 \

that the theoretical imposition of LWOP for acrime committed when the· offender was a juvenile se~ms harsh on its face~ However, "conditions that

cannot be said to be· cruel and unusual under contemporary standards are not

unconstitutional. To the extent that such conditions are restrictive and even

harsh, they are part of the penalty that criminal offenders pay. for their offenses

against society." Rhodes, 452 U.S. at 347. For now, we hold that the

imposition of LWOP for an offender who committed homicide as a juvenile is

not prohibited under the Eighth Amendment. We are unwilling, at this time,

based on the current objective indicia of societY and this Court's independent

· reasoning, to extend the protections of the Eighth Amendment to prohibit

LWOP in all circumstances after a constitutional sentencing where that

offender has the opportunity to present a full case of mitigation. Such a

process alk>ws full opportunity for the judge or jury to determine the

reprehensibility of the crime, the culpability of the offender, but to also hear

evidence of and consider that offender's youth and particularized

· circumstances .

. b) Miller and Montgomery do not require specific factual findings for the imposition, of L'WOP.

Alternatively, Phon also argues that without specific findings of

incorrigibility from the trial court or jury, an LWOP sentence is

disproportionate for juveniles. Thus, LWOP may not be constitutionally

pro~ibited for all juveniles but requires certain specific factual· findings before

such a sentence is constitutionally sound. However, such an argument is

contrary to the explicit language in Montgomery. 19 In its argument before the Court in Montgomery, the. state of Louisiana

argued that there was no distinction between juven~e crimes due to "transient

· immaturity" a:nd those due to "irreparable corruption" as "Miller did not require

trial courts to make a finding of fact-regarding a f?hild's incorrigibility." 136 • I

S.Ct. at 735. In responding to this argument, Justice Kennedy stated "[t]hat

this finding is not required, however, speaks. only to the degree of.procedure

Miller mandated in order to implement its substantive guarantee." Id. Justice

Kennedy emphasized that the United States Supreme·Court·"is careful to limit • 1

the scope of any attendant procedural requirement to avoid intruding more

than necessary upon the States' sovereign administration of their criminal

·· justice systems." Id. (citing Ford, 477 U.S. at 416-17). The Court was clear in.

stating "[t]hat Miller did not impose a formal factfinding requirement does not

leave States free to sentence a. child whose crime reflects transient immaturity

to life without parole." Montgomery,_ 136 S.Ct. at 735.

Rathel'. than emphasizing some hypothetical fact-finding for the jury or

trial judge, the holding in Miller was !united~ "Miller requires a sentencer to I

consider a juvenile offender's youth and attendant characteristics before

determining that [LWOP] is a proportionate sentence." Id. (citing Miller, 567

. To hold that the courts must undergo a narrow . U.S. at 483) (emphasis added).

and highly specific fact-finding mission would be contrary to this unequivocal

language from the United States Supreme Court and an irivasion of the

province of the jury. It is up to the judge and Jury to determine whether a

constitutionally permissible sentence is appropriate for the circumstances. So

20. long as the mitigating factors of youth and youthful characteristics are

considered, there is no necessity for a specific finding of "irreparable

corruption" or "permanent incorrigibility."

c) Phon's sentence is not unconstitutionally _disproportionat~ to his crime.

"The concept of.proportionality is central to the Eighth.Amendment.

Embodied in the Constitution's ban on cruel and unusual punishments is the

·'precept of justice that punishment for crime should be graduated and

proportioned to [the] offense.m Graham, 560 U.S. at 59 (quoting Weems, 217

· U.S. at 367). This restriction is "a 'narrow proportionality principle,' that 'does ' not require strict proportionality between crime and sentence' but rather

'forbids only extreme sentences that are 'grossly disproportionate' to the

crime. m Graham, 560 U.S. at 59-60 (quoting Harmelin, 501 U.S. at 997, 1000-

01 (Kennedy, J., concurring in part and concu:rring in judgment)).·

The United States Supreme Court has explained the "approach for

.determining whether a sentence for a term of years is grossly disproportionate

for a particular defendant's crime." Graham, 560 U.S. at 60. The Court

"begin[ s] by comparing the gravity of the offense and the severity of the

sentence." Id. (citing Harmelin, 501 U.S. at 1005). If the case before it

. represents a "rare" conclusion of "gross disproportionality," then the Court

should compare the sentence to other offenders in the jurisdiction and other

sentences for the same .crime in other jurisdictions. Graham, 560 U.S. at 60

(citing Harmelin, 501 U.S. at 1005).

21 In our review of the facts underlying this case, this Court believes the

sentence in question was constitutionally proportionate to the crinie. Despite '

all of Phon's backgroUn.d, age, and immaturity, he willingly chose to execute

two innocent victims. He participated in a terrifying display of power to an \_ \ e~tire family be_fore finally executing two people. He also shot a twelve-year-old

child, who miraculously survived. We will not hold that LWOP is grossly

disproportionate to the horrific circumstances of this crime. - 3'. The Kentucky Constitution does not prevent the discretionary imposition of LWOP as to juveniles.

Phon also argues, alternatively, that his sentence is prohibited under the

Kentucky Constitution, Section 17. Under the Kentucky Constitution, "a

method of punisJment is cruel and unusual if it shocki::; the moral sense of all

reasonable men as to what is right and proper .under the circumstances." Baze .

v. Rees, 217 S.W.3d 207, 210 (Ky. 2006) (citing Weber v. Commonwealth, 196

S.W,2d 465 (Ky. 1946) and Weems, 217 U.S. 349). · Phon bases a majority of

this argument upon the language in Workman v. Commonwealth from this / Court's predecessor. There, the Court stated that "we are of the opinion that

life imprisonment without benefit of parole for two fourteen-year-old youths

tinder all the circumstances shocks the general conscience of society today and

is intolerable to fundamental fairness." Workman v. Commonwealth, 429

S.W.2d 374, 378 (Ky. 1968). Additionally, the Court went on to state that it

"believe[d] that incorrigibility is inconsistent with youth; that it is impossible to

22 \

make a judgment that a fourteen-year-old youth, no matter how bad, will .

remain incorrigible for the rest of his life." Id.

The, language of Workman is persuasive and gives this Court pause. ' .

However, we must consider the facts and circumstances of the Workman

decisiog. At the time, "[r)ape [was] the only offense in this jurisdiction where

punishment without benefit of parole [could) be inflicted." Id. at 377. In

Workman, the juvenile offender and his accomplice, both fourteen-years-old,

broke into an elderly woman's home and raped, assaulted, and robbed her. Id.

at 375-76. Their victim survived and both juveniles were charged with forcible J

rape. Id._ at _275-76. The facts of the case, as horrendous as they are, are

dis.tinguishable from the case at hand.

Phon admitted to killing two people, assaulting a twelve-year-old child,

all in furtherance of gang activity. Phon was at least sixteen years·old, if not

seventeen years old as the Commonwealth argued, at the time of the offense. j

He was over eighteen years of age by the time he was sentenced by a jury. The . '

ficts in the Workman case, while deplorable and inhumane, left a live victim.

Here Phon not o~ly took the lives of two innocent victims, but left a child

Victim, a witness to her own parents' execution. The cases are distinguishable

and lead to us to the conclusion that a juvenile LWOP s~ntence is, at times,

constitutionally permissible. Once again, while we hold to the logic of

Workman for that particular case, we are unwilling to say that the issuance of . . an_LWOP sentence is always unconstitutional giveri the seriousness of the

crime. We therefore hold that the imposition of an LWOP sentence for a

23 juvenile under certain circumstances does not offend the Kentucky

Constiti.ttion.

B. THIS COURT MUST HOLD THAT, PHON'S SENTEN:CE WAS STATUTORILY PROHIBITED.

Phon made an additional statutory argument to the Court of Appeals

that we feel we must also address. In his latest RCr 11.42 and CR 60..02

motion to the circuit court, Phon ~gued that KRS 640.040(1) li_mits available

· punishments for capital crimes committed by juveniles to. LWOP 25. He also

argued he did not expressly waive his statutory protections under the juvenl.le

code to allow . LWOP as a potential sentence. The circuit court. denied the

motions and held KRS 640.040(1) was a permissive listing of sentences rather . . than a limitation to LWOP 25. When Phon appealed to the .co~ of Appeals,

he cited to this Court's decision in Shepherd v. Commonwealth, 251 S.W.3d I 309 (Ky. 2008), conclusively holding that LWOP was an impermissible sentence

under KRS 640.040. The Court of Appeals agreed that Shepherd's

interpretation of KRS 640.040 was a ban on LWOPfor juveniles but held that

Phon had failed to timely raise the issue under RCr 11.42 within three.years . . I

Shepherd was decided in 2008 and .Phon filed his motiQn in 2013.

·. 1. Phon'~ proceedings as a "youthful offender."

On November 13, 1996, the Warren District Courtjudge entered an order ,

that Phon was to be transferred to the Warren Circuit Court tobe tried as a

youthful' offender. On July 5, 1998, Phon entered a guilty plea and requested.a I

sentencing hearing by jury. After the jury's recommendation, Phon appeared·

in open court on August 24, 1998- to be sentenced. The circuit court imposed . 24 the recommended sentence of LWOP and ordered that Phon be delivered to the

custody, of the Department of Corrections (Phon was, at that time, over the age

of eighteen, even according to(the later birth date given by his mother during

the /sent~ncing hearing).

· At the.time Phon was sentenced, KRS 640.040 (the version as enacted

July 15, 1998) stated that "[a] youthful offender convicted of a capital offense

regardless of age may be sentenced to a term of imprisonment appropriate for

one who has committed a Class A felony and may be sentenced to life

imprisonment without benefit· of parole for twenty-five (25) years." It is ' . undisputed that, after the legislature added LWOP as a potential penalty in the

penal co.de, LWOP was never added as an enumerated sentence within this

portion of the juvenile code.

2. Shepherd v. Commonwealth.

Michael Shepherd was prosecuted as a youthful offender for murder,

first-degree robbery, and tampering with physical evidence. Shepherd, 251

S.W.. 3d at 311-:12. At sentencing, the jtiry was given,fqur options: (1) twenty to

fifty years; (2) life imprisonment; (3) LWOP 25; and (4) LWOP. Id. at 320-21.

The jury recommended LWOP 25. Id. at 321. ·

_,This Court determined the inclusion. ofLWOP as a potential sentence

was error. Id. KRS 640.040(1) states: "[a] youthful offender convicted of a

capital offense regardless of age may be sentenced to a term of imprisonment

appropriate for one who has committed a Class A felony d and may be sentenced

to life imprisonment without benefit of parole for twenty-five (25) years." Under

~5 KRS 532.060(2)(a), a Class A felony is eligible for sentencing of nyenty to fifty . '

years, or life imprisonment. This Court held:

Altho:Ugh KRS 532.030(1) does allow a person convi~ted 'of a capital offense to also be sentenced to life without parole, the trial court classified Shepherd as a youthful offender. pursuant to KRS 640.010. Thus, the youthful offender chapter governs his ). appropriate· sentencing considerations. According to KRS 640.040, Shepherd's ·statutorily authorized penalties were tWeilty to fifty years, life in prison, or [LWOP 25].

Id. Thus, this Court interpreted the provision of KRS 640.040(1) to be an

exhaustive listing of potential penalties for juveniles convicted of a capital

offense: all the penalties for Class A felonies (twenty to fifty years or life) and

LWOP25.

3. Shepherd was a clarification of law, thus applying to Phon's case.

The next question becomes whether this interpretation of KRS 640.040(1)

~hould be applied to Phon's case. The relevant portion of the statute itself is . I

identical to the language in effect at the time of Phon's sentencing. However,

the judicial construction of that statute did not occur until 2008. Thus, we

must determine whether the opinion applies retroactively and whether Phon

made an appropriate ple8: for reli~f in relation to the· statutory claim. \ Under United States Supreme Court precedent, "[u]nless they fall within

an exception to the general rule, new constitutional rules of criminal procedure

will not be applicable to those cases which have become final before the new

rules are accounted." Leonard v. Commonwealth, 279 S.W.3d i51, 159 (Ky.

2009) (quoting Teague v. Lane, 489 U.S. 288, 310 (1989)). However, "[w]hen ·

questions of state law are ~tissue, state courts generally have the authority to 26° determine the.r~troactivity of their own decision." Leonard, 279 S.W.3d at 160

(quoting American Truckingftssoc., Inc. v. Smith, 496 U.S. 167, 177 (1990)

. (pluralify opinion)). In Leonard, this Court had to decide the retroactivity of a

new rule alloWing litigation of palpable errors determined on direct appeal to be"

re-litigated in an RCr 11.42 claim. Leonard, 279 S.W.3d at 157. Because the

rule was "not of a constitutional dimension," the "Court [was] free to adopt

whatever standard of retroactivity it [found] reasonable."· Id. at 160.

The Leonard Court distinguished between "new" rules and clarifications

of law. Id. at 161. In that case, the Court determined -µte rule was new as it

"broke new ground by allowing claims that were procedurally barred under the

prior case law." Id. It determined that the hew rule could not "be applied

· retroactively to such collateral attacks that were fmal when it was decided," but

allowed it to retroactively apply to collateral attacks still pending at the time it

was decided. See id. at 162.

We find the language of the Leonard Court illuminating for determining

whether our ruling in Shepherd applies to Phon's case. Unlike in Leonard, · I Shepherd did not announce a new rule .. Itwas merely a later interpretation of .

a statute that had been, in relevant portion, unchanged since 1998. There.was

no case law prior to 2008 interpreting the statute differently. As such, we

cannot say it was a new rule but was merely, ·instead, a clarification ofexisting

law. Thus, because Shepherd was merely a clarification of an already existing

statute, that remained in relevant form identical to the version existing at the

time of Phon's sentencing, we must apply our legai holding in Shepherd

27 retroactively. Therefore, at the time of Phon's sentencing, LWQP 25 wo:uld have I

been the maximum permissible sentence and LWOP was not allowable under

the juvenile code.

4. Phon's sentence is statutorily prohibited and this Court cannot condone an illegal sentence. .

Applying Shepherd to Phon's case leads to the conclusion that Phon's

sentence was statutorily prohibited. The Court of Appeals determined that

Phon did not bring a timely claim to address this potential statutory issue of

his sentence. The Shepherd case was decided in 2008 and Phon did not bring

this particular collateral attack until 2013.3 However, under this Court's ruling

in McClanahan v. Commonwealth, the timing of the appeal becomes irrelevant.

In Mcclanahan, the defendant entered plea agreements to several

different indictments. 308 S.W.3d 694, 695..:96 (Ky. 2010). Each of the

agreements contained a "hammer clause," subjecting the defendant to a forty-

year sentence if h_e failed to appear for sentencing or violated the terms of his

pre-sentence release. Id. at 696. McClanahan did fail to appe,ar for sentencing

3 The Court of Appeals determined this was after the three-year limit under RCr 11.42. However, ·the plea for relief was brought in a combined RCr 11.42/CR 60.02 motion. Under CR 60.02, certain forms of relief may be requested·"within a reasonable time." Because our·holding relies on another case to determine Phon's sentence .was unlawful, we do not reach the question of whether the five-year delay was "reasonable" under this Rule. However, had the timeliness of the appeal been an ·integral issue to our holding today,. we would have been forced to hold that the five- year delay between our holding in Shepherd and Phon's latest appeal was not . "reasonable" under CR 60.02, especiajly given his lack of cogent reason for waiting to appeal OJJ. this statutory basis. See Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. , 1983) (holding no abuse of )discretion in fin~g 5 years as "unreasonable" under CR 60.02); Oller v. Commonwealth, 292 S.W.3d 332, 332 (Ky. App. 2009) (holding a 16- year delay was unreasonable); Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009) (finding a 7-year delay without explanation w~s unreasonable)_.

28 · and was subjected to the hammer clause·; however, the judge discovered that

all the charges in the agreements.would have added to a thirty-five-year term

and thus sentenced McClanahan to thirty-five years imprisonment. Id. at 697.

However, the thirty-five-year sentence still violated the maximum sentencing . ' •'

guidelines in KRS 532 . .110. Id. at 699. "[T]he aggregate of the sentences to be

imposed upon [McClanahan] could not lawfully exceed twenty years." Id. _)

"Whether recommended by.ap errant jury or by the ·parties through a

plea agreement, a sentence that is ,outside. the limits established by the

statutes is still an illegal sentence." Id. at 701. Furthermore, an illegal

sentence cannot stand uncorrected. "Because it is the trial judge, and not the

jury or the prosecutor or the defendant, that actually imposes a sentence by

signing his or her name to the final judgment, it is to the judiciary that the

legislative commandments of KRS 532.080(6)(b) and KRS 532.llO(l)(c) are

directed." Id. The fact that Mcclanahan agreed to an illegal sentence did not

. matter. "A sentence that lies outside the statutory limits is an illegal sentence,

and the imposition of an illegal sentence is inherently ari abuse of discretion."

Id. "Our courts must. not be complicit in the violation of the public policy

. embedded in our sentencing statutes by turning a blind eye to an unlawful

sentence, regardless of a defendant's consent." Id. Because the plea

agreement violated the law, "it [was] a contract which our courts may not

enforce." Id. Further, "an appellate court is not bound to affirm an illegal

sentence just because the issue of the illegalify was not presented to the trial

29 court." Spicer _v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014) (quoting Jones

v. Commonwealth, 382 S.W.3q 22, 27 (Ky. 2011)). ·

The situation before us in Phon's case is somewhat more nuanced. Phon

was facing the death penalty. His counsel specifically requested the inclusion I

of LWOP as a sentence, with Phon's consent. However, under Mcclanahan, .) this Court cannot condone an illegal sentence "regardless of a defendant's

consent." Our ~olding upon certification was limited to those cases where a

defendant gave "unqualified consent." Phon, 17 S.W.3d at 108. This case r cannot be an "unqualified consent" as, under Mcclanahan, a defendant's

consent to an unlawful sentence is irrelevant. Unfortunately, that has only

become clear upon our rulings in Shepherd and McClanahan; Phon was

reqµ.esting an unlawful .sentence and _could not give an "uriqualified consent" to

such an illegal judgment.

What matters here is the judiciary's involvement. This Court cannot go

beyond the li~its that the legislature has placed upon the judicial branch.

Part of this conscription of power is why, everi. when the issue of illegal

sentence is _not presented to the ~al court, this Court is constrained from

affirming a sentence found to be contrary to legislative boundaries. This

limitation stems from the separation of powers doctrine. "Sections 27 and 28

of the Kentucky Constitution explicitly require separation of powers between . . - the branches of government[.]" Prater v. Commonwealth, 82 S.W.3d 898, 901

(Ky. 2002). "[T]his Court has described Sections 27 and 28 as embodying the

'cardinal principle of our republican form .of government' and one that is among

·30 the most 'emphatically cherished and.guarded' principles in our Constitution." . .

Id. (quoting Bloemer v. Trimer, )37 S.W.2d 387, 390 (Ky. 1940) and Arnett v.

Meredith, 121 S.W.2d 36, 38 (Ky. 1938)).

"[A] constitutional violation of separation ·of powers occurs when, and

only when, one branch of government exercises power properly belonging to

another branch." Prater, 82 S.W.3d at 907. In Prater, the Court determined

that a statute allowing the judicial branch to grant parole was violation of this

principle, by ailowing the.judiciary to engage ma "purely executive function[.r

Id. at 909.

Determining what should be a crime and setting punishments for such

crimes is a legislative function. "[T]he legislature makes the laws, deciding

what is a crime and the· amount of punishment to impose for violations

thereof." Jones v. Commonwealth, 319 S.W.3d 295, 299 (Ky. 2010) (citing

Wilfong v. Commonwealth, 175 S.W.3d 84, 92 (Ky. App. 2004)). "Simply

enough, the task of setting a punishment for a given crime is a legislative

function." Ratliffv. Commonwealth, 719 S.W.2d 445, 448 (Ky. 1986) (overruled

on other grounds by Commonwealth v. Ramsey, 920.S.W.2d 526 (Ky. 1996)).

In contrast, "[t]he judiciary determines guilt and-selects or implements a , I .

sentence within the legislative range." Jones, 319 S.W.3d at 299 (citing

Wilfon,g, 175 S.W.3d at 92). This Court in Mcclanahan specifically held that

the trial court's imposition of a sentence in violation of legislative directive was

"a violation of the separation of powers doctrine embodied in Sections 27 and

28 of the Kentucky Constitution, and is an abuse of discretion." Mcclanahan, )

_)

308 S.W.3d at698'. "Under our Constitution, it is the legislative branch that by

statute establishes the ranges of punishm~ents for criminal conduct. It is error

for a trial jury to disregard the ·sentencing limits established by the legislatui;e, I

and no less erroneous for a trial judge to do so by the acceptance of a plea

agreement that disregards those statutes." Id. at 701.

· This separation of powers issue leads to this Court's conclusion that the

defendant's timeliness in bringing the attack is immaterial~· We are. loathe to

hold in this manner, for, as we have repfatedly stated, "a CR 60.02(f) motion

must be made 'within a reasonable time. m. Foley v. Commonwealth, 425

S.W.3d 880, 884 (qµoting CR 60.02 and Gross,''648 S.W.2d at 858). Although

the focus for so many collateral attacks is the defendant's timely ·or untimely

_action, with.an illegal sentence, the focus is instead on the judiciary's

involvement. For this doctrinal reason,_ the timeliriess issue is not one of

rewarding a defendant for an appeal that is lacking in form or punctuality.

Inste~d, if is about preventing the judiciary from overstepping its bou,nds and

legislating through inaction or, in the trial court's case, action. When a :trial

court sentences a defendant outside lawful confines, it has overstepped into

the arena of legislative action. When an appellate court chooses not to correct

that unlawful order, even if it is not brought to the attention of the Court until

many years later, it becomes complicit in that breach of the confines of the \

judiciary_ power.

The.General Assembly has.decided LWOP is an inappropriate sentence

for juveniles. Under our ruling in Shepherd, this Court has acknowledged that

32 statutory directive. That legislative statement was the same at the time of

Phon's sentence. Thus, to override the legislative directive and impose an

unlawful sentence would violate the separation of powers doctrine. This the

Court cannot do.

The question arises as to what is the effect of the original unlawful

·sentence and what must be done to correct it. While Kenti.Icky law has not

specifically or explicitly answered this question, most jurisdictions hold that an ·

illegal sentence is void. 4 The United States Supre~e Court, in an older

decision, has implied that sentences imposed beyond that which is lawful are

void:

4 For example, in Tennessee, the courts distinguish between void and voidable sentences. Voidable sentences are "faci8.llyvalid [reqtl.iring] proof beyond the face of the record or judgment to establish its invalidity." Edwards v. State, 269 S.W.3d 915, 920 (Tenn. 2008) (quoting Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing Dykes v. Compton,. 978 S.W.2d 528, 529 (Tenn. 1998))). In contrast, a void sentence "is one which shows upon the face of the record a want of jurisdiction in the court assuming to render the judgment .... " Edwards, 269 S.W.3d at 920 (quoting Lynch v. State ex rel. Killebrew, 166 S.W.2d 397, 398 (Tenn. 1942)). See aiso Davis v. Riedman, 114 N.W.2d 881, 884 (N.D. 1962) ("As a general rule, if the law prescribes a place of imprisonment, the court cannot direct a different place, and if it does so, the sentence is void ... "};. . Kaiser v. State, 646 S.E.2d 84, 87 (Ga. Ct. App. 2007) (quoting Mullins v. State, 214 . S.E.2d 1, 1 (Ga. Ct. Ap. 1975) ("A sentence entered in a criminal case which is unauthorized by law is a nullity and void,"); Hart v. State, 481 S.W.3d 679, 685 (Tex. Crim. App. 2015f (citations omitted) ("A sentence outside the range of punishment authorized by law is an illegal sentence ... which is void and must be reversed."); State v. McBride, 567 N.W.2d 136, 145 (Neb. 1997) ("A sentence imposed without a legal basis· is void."); ]3usby v. State, 774 S.E.2d 717, 720 (Ga. Ct. App. 2015) (citations omitted) ("[A] judgment of sentence is void where it imposes an illegal sentence ... the illegality of such a judgment is not a waivable issue."); U.S. v Ramey, 503 F.Supp. 24, 25 (E.D. Tenil. 1980) (citations omitted) ("Being illegal, such sentence is vqid, and the Court h~s the power and the duty to, expunge the void sentence and, at the appropriate time, pronounce a lawful sentence on such defendant."); State v. Louisell, 865 N.W.2d 590, 597 (Iowa 2015) (citing State v. Ross, 729 N.W.2d 806, 809 (Iowa 2007) and State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005)) ("[S]entences imposed without statutory authorization are illegal and void."); 21 Am. Jur. 2d Criminal Law§ 735 ("An illegal senteD:ce is generally considered void[.]"). · 33 If a justice of the peace, having jurisdiction to fine for a misdemeanor, and with the party charged properly before him, ·should render ajudgmen~ that he be hung, i~would simply be void. Why void? Because he had no power to render such a judgment. So, if a court of general .jurisdiction should, on an indictment for libel,. render a judgment of death, or confiscation of property, it would,· for the same reason, be void.. Or if on an indictment for treason the court should render a judgment of attaint, whereby the heirs of the criminal could not inherit his property, which should by the judgment of the court be confiscated to the State, it would be void as to the attainder, because in excess of the authority of the court, and forbidden by the Constitution.

Exparle Lange, 85 U.S. 163, 176-77 (1873). "In other words, in a case where it

had full jurisdiction to render one kind of judgment, operative upon the same

property, it rendered one which included that which it had a right to render,

and something more, and this excess was held simply void." Id. at 178. \

We hold today that a sentence imposed beyond the limitations of the

legislature as statutorily imposed is unlawful and void. This holding is narrow:

only a sentence that is illegal and was illegal at the time it was imposed would

fall within this holding. It. is because these sentences are. void and .unlawful

that CR 60.02 provides the proper remedy for relief. In Meredith v. . ' .Commonwealth, "the jury, without the court's instruction, added the words

'without parole' to the verdict upon which a judgment was entered sentencing

him to life in the penitentiary 'without the benefit of parole."' 312 S. W.2d 460,

462 (Ky.-1958f. The appellant.filed for relief from the entire judgment pursuant

to CR 60.02. See id. at 461-62. This Court's predecessor court did determine

th~t the addition of the "with~ut privilege of parole" was erroneous as the

instructions to the jury did riot allow such an addition. See id. at 462.

34 However, the trial court r~cognized that error and struck the words "without

benefit of parole" from the final judgment. Id. "The error did not invalidate the

entire jud~ent as insisted by appellant. Execution of the remainder of the I

judgment not being dependent upon the execution of its erroneous provision, /

the court is authorized under CR 60.02 to give relief from the erroneous

provision alone." Id. Although under Winstead v. Commonwealth, 327 S.W.3d

479 (Ky. 2010), CR 60.02 is unavailable for judicial errors, an unlaWful

sentence is not strictly a judicial error.

In Winstead, the Commonwealth moved the trial court, pursuant to CR

60.02, to amend the jail-tim~ credit granted to Winstead. Id. at 482. The trial

court, finding that allowing the time as he had originally done would viOlate

statutory provisions, granted the Commonwealth the CR 60.02 relief and

eQ.tered an amended judgment. Id. The Court of Appeals affirmed and this

Court granted discretionary review. Id. at.483. The Court did explicitly hold

that "the improper awarding of jail-time credit was undeniably a judicial error,

and [] CR 60.02 is not an appropriate vehicle for the correction of judicial - errors[.]" Id. However, this Court specifically delved into the issue of whether

the improper jail-time credit was part ofWinstead's sentence. Id. at 489-91.

The Commonwealth had argued that because Winstead's sentence was illegal,

the trial ·court corild correct that sentence at any time. Id. at 489. The Court

"reject[ed] this argument because the award of ~ail-time credit is not part of

Winstead's sentence." Id. "Because we have already determined that jail-time

credit is not part of a defendant's sentence,. precedent . holding that an illegal

35 ,~, . sentence may be corrected 'at any time' is irrelevant because, as we discussed

with the parties at oral argui:rient, the jail-time credit award is _not a part of

· Winstead's actual sentence.", Id . .at 490-91 (citing Skiles v. Commonwealth, 757 '-, . S.W.2d 212, ·215 (Ky. 1988) and Neace v. Commonwealth, 978 S.W.2d 319, .322

(Ky. 1998)). Thus, the Court specifically differentiated between a judicial error

and an illegal sentence, implying that the two errors would require different

analyses and dispositions.

Addition~ly, there is a fine distinction between a plea ~or relief from a

conviction and relief through remedy of a sentence. In a Kansas Supreme

· Court case, the Court clarified that correction of an illegal sentence is distinct

and separate from a collateral attack on a conviction. State v. Davis, .156 P.3d

665, 667 (Kan. 2007) (quoting State v. Nash, 133 P.3d 836 (Kan. 2006)). Thus,

even if CR 60.02 may not apply to judicial eqors in attacking_ a conviction, this

is separate and distinct. It is a limited attack on the illegality of a sentence and

. the remedy is not reversal of a. conviction, but correction of a sentence.·, See

Davis,· 156 P.3d at 667 (quoting Nash, 133 P.3d 836) ("The relief available ... is

· correction of a sentence, rather than reversal of a conviction."); see also

Cantrell v. Easterling, 346 S.W.3d 445, 458 (Tenn. 2011) ("His convictions are

not infected by the sentencing error; rather, Defendant's four convictions for . '

aggravated rape remain intact.").

It is logical that such illegal sentences are considered void and

correctable at any. time, as contrasted to an attack on the underlying .

conviction. If the sentence goes beyond the jurisdiction of the court imposing

36 j ; .

·it, then it must be considered a legal nullity. The Supreme Court in Tennessee

has determined that "trial courts lack jurisdiction to impose sentences not ·' available und~r the s.entencing statutes governing the case." Edwards, 269

S.W.3d at 921. In such circumstances; the "sentences are illegal, amounting to

jurisdictional defects' that render the judgments imposing them void[:]" Id.

(internal citation omitted). Even a guilty plea cannot waive this particular error

because_ it cannot "confer jurisdiction upon the tri8.l court to impose a sentence

not available under governing statutes." Id. (internal citations omitted). "[T]he \

modern doctrine or idea is that a court must possess jurisdiction not only of

the person and subject-matter, but to impose the sentence which is adjudged.

If the latter is lacking the sentence is not merely voidable but void." State v.

McBride, 567 N.W.2d 136, 145 (Neb. 1997) (citations omitted). See also State v.

Payne, 873 N.E.2d 306, 311 (Ohio 2007) (citations omitted) ("A void sentence is

one that a court imposes despite lacking subject-matter jurisdiction or the

authority to act.").

Kentucky,_likewise, ~as held that sentencing errors implicitly infer

jurisdictional defects. In Wellman v. Commonwealth, the Court determined

that a sentence violated a statute: 694 S.W.2d 696, 698 (Ky. 1985). The Court

held "that, despite the fact that the trial-counsel failed to object at the time of

the judgment's entry, since sentencing is jurisdictional it cannot be waived by

failure to object." Id. The Court there affirmed the conviction but remanded to

the trial court to comply with the relevant sentencing statute. Id. Even more

· recently, this Court stated that "[s]entencing is jurisdictional[.]" Cummings v.

37 Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007). Therefore, "sentencing issues

may be raised for the first time on appeal[.]" Id. Since these cases, this Court

has further clarified these holdings to mean that appellate courts are .not

bound to affirm an illegal sentence. See Jones, 382 S.W.3d at 27. However,

this Court has yet to explicitly refer to an unauthorized sentence being beyond ' the authority or jurisdiction of the trial court, as other state courts have done.

Despite this leaning, Kentucky's courts have implied that, even if an

illegal sentence is void, it is void only as to the excess portion of the sentence. ,

In Department of Public Welfare of Kentucky v. Polsgrove, the defendants in

question alleged that they were sentenced beyond the maximum. allowable

sentence. 53 S.W.2d 341, 342. (Ky. 1932). The Court held that "[s]ound . \

reasoning and the weight of authority support the rq.J.e that the whole sentence

is not illegal and void but valid to the extent authorized by the statute." Id.

(citing 16 C.J. § 3093, p. 1312). In holding such, the Court held that holding

opposite, that the entire sentence· is void, "would be ~ mischievous practice to

permit convicts to escape punishment in that manner, and it would tend to .

defeat the purposes of orderly procedure."· Polsgrove, 53 S.W.2d >at 343. The

Court determined it was "constrained to the conclusion that the judgment of

conViction was valid to the extent autho.rized by the statute and voidable only

as to the excess." Id. The ~nited States Supreme Court's langua~e in Exparte

Lange also supports the proposition that only the excess of the sentence is

illegal and void. See 85 U.S. at 178 ("In other words, in a case where it had full

jurisdiction to render one kind of judgment, operative upon the same property,

38 it rendered one which included that which it had a right to render, and

something more, and this excess was held simply void.").

The voidness of this sentence also justifies why tl:J.is Court must act, even·

though Phon's motion was not made in a timely or appropriate manner.s

"While trial courts are afforded discretion to address what constitutes a

reasonable time under CR 60.02 ... , the law is clear that void judgments are

'not entitled to any respect or deference by the courts."' Soileau v. Bowman,

382 S.W.3d 888, 890 (Ky. App. 2012) (citing Gross v. Commonwealth, 648

S.W.2d 853, 858 (Ky. 1983) and quoting Foremost Ins. Co. v. Whitaker, 892

S.W.2d 607, 610 (Ky. App .. 1995)). "Avoid judgment is a legal nullity, and a

court has no discretion in.determining whether it should he set aside."

Soileau, 382 S.W.3d at 890 (quoting Whitaker, 892 S.W.2d at 610 (citation

omitted)). "Under Section 763 of the Civil Code (see now CR 60.02) the lower

court had authority to set aside the void portion of the judgment on motion,

without limitation of time." Engle v. City of Louisville, 262 S.W.2d·371, 373 (Ky..

1953). "[A] void judgment is a legal nullity, and further, such ajudgment does

not acquire validity with the passage of time." Grundy v. Commonwealth, 400

S.W.3d. 752, 755 (Ky. App. 2013) (citing Rogers Group, Inc. v. Masterson, 175

S.W.3d 630, 635 (Ky. App. 2005)). In Grundy, the Court held a revocation

order void as it was entered after. the period of probation had ended. Grundy, )

s We would also note, "[t]he days when substantial justice must be sacrificed for the sake of blind adherence to strict technicalities long since outmoded have passed in this State and are, we hope, beyond recall." State v. Culver, 129 A.2d 715, 719 (N.J. 1957). 39 400 S.W.3d at 755. The CR 60.02 motion was filed almost eight ye~s after the ( order. Id. at 754. The Court still held:

.Regardless of the amount of time that has passed from the date of Grundy's probation revocation order to the date that his motion to vacate was filed; it is clearly a miscarriage of justice for Grundy to be required to serve time under the probation revocation order where the trial court lacked jU:risdictiori'to revoke Grundy's probation and where said order revoking probation was a nullity and otherwise of no force. or effect as a matter of Kentucky law. ·

Id. at 755. Clearly, under Kentucky law, if the sentence was void, then no time

limitations apply. A void judgment cannot gain validity simply because a

defendant waits too long to attack the legl:31ity of the sentence.

Montgomery v. Louisiana was brought as a collateral attack, over fifty

years after ~e original conviction. See_ U.S; _, 136 S.Ct. 718, 725-26

(2016). There, the state statutes provided a mechanism to file a motion to

correct an illegal sentence. Id. at 726. An illegal sentence could be corrected . '\ at any time under the statute. Id. Additionally, this Court's language in

McClanahan implies that the mode of attack- or time when the attack is brought

_are immaterial when the issue is an illegal sentence. "[S]entences falling

outside the permiss!ble sentencing range cannot stand uncorrected." ' ' - ,

McClanahan, 308 S.W.3d at 700 (emphasis added). "A sentence that lies ' outside the statutory limits is an illegal sente:r;ice, and the imposition of an

• illegal sentence is inherently an abuse of discretion.~ Id. at 701. "Our courts · 1

must not be complicit in the violation of the public policy embedded in our

·sentencing statutes by turning a blind eye to an unlawful sentence[.]" Id.

(emphasis added). "It is the faithful adherence to the policies of justice

40 · embodied in our sentencing statutes and rules that preserves the great respect

and high regard most citizens of this Commonwealth have for our trial court

judges." Id. at 704 .

. Illegal sentences must always be correctable. To hold otherwise would fly

in the face of the separation of powers doctrine and grant the judiciary powers

it was never intended . to hold. LimitingI the court's ability to correct an

:unlawful sentence would be counter to the policies inherent in the judiciary

system.

As such, we must hold that Phon's LWOP sentence was illegal and,

therefore, unenforceable. Therefore, we reverse the Court of Appeals and must

. remand to the circuit court for correction of the illegal sentence fu light of this

opinion.

C. PHON'S CASE MUST BE REMANDED FOR CORRECTION.

We ate synipathetic to the plight of the victims in this case. We recognize

the trauma inflicted upon them in being forced to relive these ev~nts once

more. However, this Court. carinot be persuaded by passion but must impart ' justice as required by the laws of the Commonwealth. We cannot condone an

· illegal sentence and must, theref~re, remand to the Warren Circuit Court for

correction of the illegal sentence.

The trial court has inherent authority to correct an unlawful sentence, at

any time. In Skiles v. Commonwealth,- the C<:>urt cited ·with approval a Georgia

case where the appellate court found that "the court's subsequ~nt correction of

the [unlawful sentence) was not ol)ly authorized but required." Skiles, 757

41 S.W.2d at 214 (quoting Wallace v. State, 333 S.E.2d 874, 876 (Ga. App. 1985)).

In Skiles, this Court held that "[t]he rule that a trial court which has imposed

an unlawful sentence can correct that sentence at any time appears to be the

majority position in those jurisdictions which have considered the matter."

Skiles, 757 S.W.2d at 215 (citing 28 A.L.R. 4th 147)). The Court held that "the

\ rule [was] sound and [did] not offend any_right of the defendant." Skiles, 757

S.W.2d at 215. In Neace v. Commonwealth, the Court also stated that "whether

the unlawful sentence is recommended by the jury or an unlaWful sentence is ·

imposed following a guilty plea, the result is the same. In either instance, the

sentence must be corrected to conform to the law."' 978 S.W.2d 319, 322 (Ky.

1998) (emphasis added). Many other jurisdictions facing the issue before this

.Court today also refer to the ongoing authority of the trial court to correct an

unlawful sentence~6

6 See People u. Coble, 17 A.D.3d 1165, 1165 (N.Y. App. Div. 2005) ("Contrary to . defendant's contention, [the court] had inherent power to resentence defendant in order to correct an illegal sentence that it had previously imposed.") (internal citations omitted); Commonwealth v. Quinian, 639 A.2d 1235, 1239 (Pa. Super. Ct. 1994) ("This inherent power of the court to correct obvious and patent mistakes is not eliminated by the expiration of the ... appeal period.") ·(internal citations omitted); Cantrell v. Easterling, 346 S.W.3d 445, 453 .(Tenn. 2011) ("[A] trial court has the authority to correct an illegal sentence at any time."); State u. Culver, 129 A.2d 715, 721, 723 (N.J. 195.7) ("Nor can it be said, apart from any statutory considerations, that our courts, · according to present-day concepts and standards, are without power to correct an illegal or improper sentence."; "An even greater number of courts, however, have adopted the view that even an invalid or illegal sentence, which is beyond the power of the trial court to impose, m~y be corrected after the execution of the sentence has begun and without regard to the term of court at which it is done[:]"). Iil fact, one court determined that "[t]he authorities are unanimous in the view that a court ·may impose a valid sentence in substitution for one that is void, even though the execution of the void sentence has commenced." State u. Fountaine, 430 P.2d 235, 237 (Kan. 1967) (internal citations omitted). In that same case, the court· cited to another state: "Here the error in the original proceeding consisted of imposing the wrong sentence for the crime charged. When that is.the case the trial judge must 42 \

For these reasons, we find it well-grounded in case law, both within this

jurisdiption and without, that the prope;r procedure is to remand this case back

to the Warren Circuit Court to correct the unlawful sentence and impose a

legal sentence. This procedure is not unheard of in Kentucky. In .Cummings,

the Court determined the sentence was above the maxim.uni aggregate · \ sentence applicable.' 226 S.W.3d at 68. There, this Court stated that "[i]n \

other, cases in which the statutory limit was exceeded, we remanded to the trial

court for imposition of sentence which would fulfill the statutory maximum."

Id. (citing Gibbs v. Commonwealth, 208 S.W.3d 848 (Ky. 2006) and Young v.

Commonwealth, 968 S.W.2d 670 (Ky. 1998)). Thus, the Court determined it

was "necessary for the trial court to fashion a new sentence which" did not

violate the aggregate maximum sentence statute. Cummings, 226 S.W.3d at I ' .

68. In Skiles and Neace, this Court affirmed a trial court's modification of an

unlawful sentence. See Skiles, 757 S.W.2d at 215 and Neace, 978 S.W.2d at

322. Therefor~, this Court has a firm basis to· remand the case back to the trial

judge to correct the unlawful sentence and impose a sentence of LWOP 25.

Here,· the jury made factual findings, that the Commonwealth had proven

the presence of aggravating factors to substantiate the imposition of LWOP 25,

change the sentence to correct the error and he must exercise his discretion anew in arriving at what he considers an appropriate sentence." Id. at.240 (quotirig State v. Froembling, 391P.2d390, 391 (Or. 1964)). "The remedy for an illegal sentence is not disniissal of the proceedings ... Rather, the general rule is that if the original sentence . is illegal, ,even though partially executed, the sentencing co'u.rt may correct it." Webb, 281 S.W.3d at 277 (internal citations omitted) (Arkansas case). ·"[W]here a-sentence is void ab initio, a trial court has both the jurisdiction and the obligation to vacate the sentence ... And a void sentence may be corrected at any time[.]" Kaiser v. State, 646 · S.W.2d 84, 87 (Ga. Ct. App. 2007) (internal citations omitted)~ 43 /

LWOP, or capital punishment. There has been no error found that would

undermine these factual findings. Thus, the legal aggravated sentences

presented to the jury have been diminished to only one: LWOP 25. 7

Additionally, in Polsgrove; this Court's predecesspr held that "the whole ·

sentence is not illegal and void but valid to the extent authorized. by statute."

53·s.W.2d at 342. Therefore~ the sentence beyond the highest permissible

remaining sentence, LWOP 25, is illegal and voiQ.. The trial court must now

correct the sentencing error by impo,sing the highest remaming valid sentence:

LWOP 25. .As this Court stated in Neace, the "sentence must be· corrected to

conform to the law." 978 $.W.2d at 322. Such conformity with the law in this

particular case is clear: the sentence of LWOP 2.5 must be imposed. . . Tinsley v., Commonwealth provides this Court with further substantiation

for our direction to the trial court. In that case, the death penalty imposed was

found to be unconstitutional. Tinsley v. Commonwealth, 495 S.W.2d 776, 783

(Ky. 1973). This Court determined that it was left with "no alternative save to

reduce the punishment to ~e only lower penalty authorized by KRS 435.010,

which is life imprisonment." Id. Although Phon's situation is distinguishable

as there were remaining permissible sentences that could have been imposed,

the only remaining aggravated sentence that is permissible under the law here

1 Under Kentucky's statutory sentencing spheme, a jury is not constrained from recommending one of the lesser sentences from.a-term of years to life im.prison.Inent, even if it finds an aggravating factor present. However, the sentences that are added to the jury;s options only upon the finding of an aggravator have been diminished to one in Phon's case: LWOP 25. · 44 is LWOP 25. Thus, we remand this case back to the Warren Circuit Court to

correct the illegal sentence by imposing a sentence of LWOP 25.

IV. CONCLUSION

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 I

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 sentence of LWOP 25.

Cunningham, Hughes, Keller, Ve.nters and Wright, JJ., and Kline and

.Thacker, S.JJ., concur. Thacker, S.J. concurs by separate opinion, which

Kline, S.J. joins. Minton, C.J. and VanMeter, J., not sitting.

THACKER, S.J., CONCURRING:. This court's decision to remand for the

trifil court to correct the sentence in this case turns entirely upon the fact that

the original sentence was outside the range authorized by statute, and

therefore, void. I concur fully with that conclusion and with the principal

opinion's thorough analysis of that issue.

45 Because ,of the posture in which this case came before us, we also

address the constitutional claims raised by· Phan. Hereto I agree with the result

and with most of the principal opinion's learned analysis. I write separately,

however, because I believe that the appropriate analysis of what constitutes a

"cruel and unusual punishment" is much simpler than that suggested by

current U.S.· Supreme Court precedent. ·

While this court may feel compelled to apply the convoluted rationale of

the current majority of the federal Supreme Court to cases where existing

precedent is controlling,s in cases th,at are beyond existing precedent and when

applying the Kentucky Constitlition, this Court should exercise its owh

independent judgment as to what the law is. ~ether or not this case falls

within existing precedent requires {is to analyze Miller and Montgomery, as the

principal opinion very ably does.

However, when addressing the subsequent question of whether to extend

the .protections of either the Eighth Amendment or of Section 17 of the

Kentucky Constitution, we need only decide whether the punishment at issue

is prohibited by the constitutional texts as written and according to their

s In Eubank v. Poston, 5 T.B. Mon. ~85, 21 Ky. 285, 294 (Ky. 1827), our predecessor court concluded that "[o]n the constitution and general laws of the.whole nation, we subscribe to the supervising power of [the United States Supreme Court]", and therefore, "[d]ecisions of the Supreme Court are binding authority on questions of constitutional and general laws of the whole nation, but not on questions of municipal law." While this Court has adopted a deferential position with respect to the United States Supreme Court's precedent on federal constitutional matters, the constitutional footing for that assumption has been questioned. See Lee J. Strang, State Court Judges Are Not Bound by .Nonoriginalist Supreme Court Interpretations, 11 FIU L. Rev. 327 (2016), available athttp://ecollections.law.fiu.edu/lawreview/volll/iss2/6. 46 original meaning. In this case, that means asking whether a sentence of life in

prison without the possibility of parole for a 16-year-old who murdered a

mother and father and attempted to murder their twelve-year-old-daughter

involves methods of punishment that had been considered "cruel and unusual"

in the United States in 179i or in Kentucky in 1891.9 Framed in this light, the

constitutional issues raised by Phon are easily dispensed with.

To instead follow the current majority of the U.S. Supreme_ Court in

presuming to discern and apply "evolving standards of decency" or "a moral

consensus" in cases such as this is, in my view, a mistake-regardless of the

result. Ultimately, that path presupposes that the U.S. Supreme Court may

legitimatel:r act as "the authoritative conscience of the· Nation." 10

· I do not believe that this is the view of the majority irt this case. To the

contrary, in holding that Kentucky courts have no power to impose any

sentence outside the_ range provided for by the General Asse_mbly, the principal

opinion clearly and fOriectly states that "[d]etermining what should be a crime

9 See, e.g., Graham v. Florida, 560 U.S. 48, 99 (2010) (THOMAS, J., dissenting) ("It is by now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous 'methods of punishment, '-specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted[.]" (internal citations omitted). 10 Roper v. Simmons, 543 U.S. 551, 616 (SCALIA, J; dissenting) ("If the Eighth Amendment set forth an ordinary rule of law, it would indeed be the role of this Court to say what the law is. But the Court having pronounced.that the Eighth Amendment is an ever-changing reflection of 'the evolving standards of decency' of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-stari.dards hypothesis, the only legitimate function of this Court is to identify" a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?"). 47 and setting punishments for such crimes. is a legislative function. "11 To give

any credence to the "evolving decency" standard when carrying out this Court's

independ9nt constitutional analysis ·undermines the otherwise strong

commitment to judicial restraint and respect for the separation of powers

doctrine that is central to our unanimous resolution of this case by remanding

for imposition of a statutorily authorized sentence.

L

11 Principal Opini~n, p. 3l.

48 I ' 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