RENDERED: NOVEMBER 20, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2019-CA-1564-MR
SOPHAL PHON APPELLANT
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE JOHN R. GRISE, JUDGE ACTION NO. 96-CR-00599-005
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Sophal Phon appeals the Warren Circuit Court’s September
13, 2019, order denying his motion to vacate or set aside its judgment pursuant to
Kentucky Rule of Criminal Procedure (RCr) 11.42 and Kentucky Rule of Civil
Procedure (CR) 60.02. Finding no error, we affirm. In 1996, Phon and his fellow gang members entered the home of
Khamphao Phromratsamy and Manyavanh Boonprasert. At the direction of the
gang leader, Phon shot both individuals and their twelve-year-old daughter in the
head execution style. Khamphao and Manyavanh were killed while their daughter
miraculously survived. Phon was under the age of eighteen at the time.1
Given the brutality of the crime, the Commonwealth sought the death
penalty; however, Phon was ultimately sentenced to life without parole (LWOP).
Prior to his formal sentencing, Phon filed his first RCr 11.42 motion claiming
ineffective assistance of counsel. Finding no error, the circuit court denied the
requested relief and this Court affirmed. Phon v. Commonwealth, 51 S.W.3d 456,
458-61 (Ky. App. 2001).
In 2005, the Supreme Court of the United States (SCOTUS) rendered
a decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1
(2005), wherein it held that sentencing juveniles to death was unconstitutional.
Based on this, “Phon filed [a] motion for a new sentencing hearing . . . arguing
that, because he had been subject to the death penalty when he pled guilty, he
should be entitled to a new sentencing hearing.” Phon v. Commonwealth, No.
2006-CA-002456-MR, 2008 WL 612283, at *2 (Ky. App. Mar. 7, 2008). We
1 For a more detailed recitation of the facts giving rise to this case, see Phon v. Commonwealth, 545 S.W.3d 284 (Ky. 2018). -2- disagreed, holding that Phon was not entitled to change his guilty plea nor to a new
sentencing hearing because the maximum penalty was no longer applicable. Id. at
*4.
Subsequently, SCOTUS issued a series of Opinions concerning
LWOP sentences for juveniles: Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011,
176 L.Ed.2d 825 (2010) (holding that it is unconstitutional for juveniles to be
sentenced to LWOP for nonhomicide offenses); Miller v. Alabama, 567 U.S. 460,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding that sentencing schemes
mandating LWOP for juvenile offenders are unconstitutional); and Montgomery v.
Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (holding that the substantive
rule announced in Miller v. Alabama applied retroactively to finalized sentences).
Using these cases, Phon requested a new sentencing hearing pursuant
to RCr 11.42 and CR 60.02. Additionally, he argued that his sentence was
prohibited under Kentucky Revised Statute (KRS) 640.040(1), which provides that
the maximum sentence for a juvenile convicted of a capital offense is life without
parole for twenty-five years (LWOP-25). In a detailed analysis of SCOTUS’s
decisions, the Kentucky Supreme Court refused to rule that Phon’s sentence was
unconstitutional; however, it did agree that Phon’s sentence was statutorily
prohibited. Phon, 545 S.W.3d at 308-09. As a result, the matter was remanded to
the circuit court with instruction to impose a sentence of LWOP-25. Id. at 310.
-3- Following the instruction of the Kentucky Supreme Court, the circuit
court entered an order amending Phon’s sentence to LWOP-25, and he became
eligible for parole in 2022. Soon after the circuit court’s order was entered, Phon
filed a motion to vacate his amended LWOP-25 sentence pursuant to RCr 11.42
and CR 60.02 and requested a new sentencing hearing. On September 13, 2019,
the circuit court denied Phon’s motion, finding that his claim was not ripe and that
it was without merit. This appeal followed.
Phon claims his LWOP-25 sentence violates the Eighth Amendment
because Kentucky’s parole system does not provide a method by which a youthful
offender can demonstrate maturity and rehabilitation in order to receive a
meaningful opportunity for release. Although Phon cleverly attempted to style this
as a single issue, we believe his challenge contains two separate and distinct issues:
(1) whether his LWOP-25 sentence is constitutional and (2) whether the Kentucky
parole system, as it applies to juvenile offenders, violates the Eighth Amendment.
For the following reasons, the first challenge is prohibited under Kentucky law
while the latter is not ripe for judicial review.
Granting relief pursuant to RCr 11.42 or CR 60.02 is a power within
the sound discretion of the circuit court. Phon, 545 S.W.3d at 290. Therefore, we
review for abuse of discretion. Id.
-4- Kentucky law is clear that successive post-judgment motions are
impermissible. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).
This is Phon’s fourth collateral attack. In his prior appeal, the Kentucky Supreme
Court carefully reviewed Phon’s sentence and analyzed Roper, Graham, Miller,
Montgomery, and KRS 640.040(1). The Court refused to rule that Phon’s LWOP
sentence was unconstitutional, and we are unconvinced the Court would come to a
different conclusion concerning Phon’s LWOP-25 sentence. 545 S.W.3d at 290-
99. The only reason Phon’s sentence was revised from LWOP to LWOP-25 is
because the LWOP sentence violated KRS 640.040(1). Id. at 308-09. Moreover,
the Court thoroughly discussed why the equitable remedy for Phon was to amend
his sentence to LWOP-25. Id. Phon has not directed our attention to, nor are we
aware of, any new law requiring us to distinguish the Kentucky Supreme Court’s
prior decision. “The Court of Appeals is bound by and shall follow applicable
precedents established in the opinions of the Supreme Court and its predecessor
court.” Rule of the Supreme Court (SCR) 1.030(8)(a). Thus, the court did not
abuse its discretion.
Phon’s second issue, that the Kentucky parole system as applied to
juvenile offenders violates the Eighth Amendment, is not ripe for judicial review.
As the Kentucky Supreme Court stated in Bingham Greenebaum Doll, LLP v.
Lawrence:
-5- Ripeness under federal law is a jurisdictional requirement under Article III of the United States Constitution. This requirement similarly appears under the Kentucky Constitution in that circuit courts have original jurisdiction of all justiciable causes not vested in some other court. For a claim to be justiciable, it must be ripe.
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RENDERED: NOVEMBER 20, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2019-CA-1564-MR
SOPHAL PHON APPELLANT
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE JOHN R. GRISE, JUDGE ACTION NO. 96-CR-00599-005
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Sophal Phon appeals the Warren Circuit Court’s September
13, 2019, order denying his motion to vacate or set aside its judgment pursuant to
Kentucky Rule of Criminal Procedure (RCr) 11.42 and Kentucky Rule of Civil
Procedure (CR) 60.02. Finding no error, we affirm. In 1996, Phon and his fellow gang members entered the home of
Khamphao Phromratsamy and Manyavanh Boonprasert. At the direction of the
gang leader, Phon shot both individuals and their twelve-year-old daughter in the
head execution style. Khamphao and Manyavanh were killed while their daughter
miraculously survived. Phon was under the age of eighteen at the time.1
Given the brutality of the crime, the Commonwealth sought the death
penalty; however, Phon was ultimately sentenced to life without parole (LWOP).
Prior to his formal sentencing, Phon filed his first RCr 11.42 motion claiming
ineffective assistance of counsel. Finding no error, the circuit court denied the
requested relief and this Court affirmed. Phon v. Commonwealth, 51 S.W.3d 456,
458-61 (Ky. App. 2001).
In 2005, the Supreme Court of the United States (SCOTUS) rendered
a decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1
(2005), wherein it held that sentencing juveniles to death was unconstitutional.
Based on this, “Phon filed [a] motion for a new sentencing hearing . . . arguing
that, because he had been subject to the death penalty when he pled guilty, he
should be entitled to a new sentencing hearing.” Phon v. Commonwealth, No.
2006-CA-002456-MR, 2008 WL 612283, at *2 (Ky. App. Mar. 7, 2008). We
1 For a more detailed recitation of the facts giving rise to this case, see Phon v. Commonwealth, 545 S.W.3d 284 (Ky. 2018). -2- disagreed, holding that Phon was not entitled to change his guilty plea nor to a new
sentencing hearing because the maximum penalty was no longer applicable. Id. at
*4.
Subsequently, SCOTUS issued a series of Opinions concerning
LWOP sentences for juveniles: Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011,
176 L.Ed.2d 825 (2010) (holding that it is unconstitutional for juveniles to be
sentenced to LWOP for nonhomicide offenses); Miller v. Alabama, 567 U.S. 460,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding that sentencing schemes
mandating LWOP for juvenile offenders are unconstitutional); and Montgomery v.
Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (holding that the substantive
rule announced in Miller v. Alabama applied retroactively to finalized sentences).
Using these cases, Phon requested a new sentencing hearing pursuant
to RCr 11.42 and CR 60.02. Additionally, he argued that his sentence was
prohibited under Kentucky Revised Statute (KRS) 640.040(1), which provides that
the maximum sentence for a juvenile convicted of a capital offense is life without
parole for twenty-five years (LWOP-25). In a detailed analysis of SCOTUS’s
decisions, the Kentucky Supreme Court refused to rule that Phon’s sentence was
unconstitutional; however, it did agree that Phon’s sentence was statutorily
prohibited. Phon, 545 S.W.3d at 308-09. As a result, the matter was remanded to
the circuit court with instruction to impose a sentence of LWOP-25. Id. at 310.
-3- Following the instruction of the Kentucky Supreme Court, the circuit
court entered an order amending Phon’s sentence to LWOP-25, and he became
eligible for parole in 2022. Soon after the circuit court’s order was entered, Phon
filed a motion to vacate his amended LWOP-25 sentence pursuant to RCr 11.42
and CR 60.02 and requested a new sentencing hearing. On September 13, 2019,
the circuit court denied Phon’s motion, finding that his claim was not ripe and that
it was without merit. This appeal followed.
Phon claims his LWOP-25 sentence violates the Eighth Amendment
because Kentucky’s parole system does not provide a method by which a youthful
offender can demonstrate maturity and rehabilitation in order to receive a
meaningful opportunity for release. Although Phon cleverly attempted to style this
as a single issue, we believe his challenge contains two separate and distinct issues:
(1) whether his LWOP-25 sentence is constitutional and (2) whether the Kentucky
parole system, as it applies to juvenile offenders, violates the Eighth Amendment.
For the following reasons, the first challenge is prohibited under Kentucky law
while the latter is not ripe for judicial review.
Granting relief pursuant to RCr 11.42 or CR 60.02 is a power within
the sound discretion of the circuit court. Phon, 545 S.W.3d at 290. Therefore, we
review for abuse of discretion. Id.
-4- Kentucky law is clear that successive post-judgment motions are
impermissible. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).
This is Phon’s fourth collateral attack. In his prior appeal, the Kentucky Supreme
Court carefully reviewed Phon’s sentence and analyzed Roper, Graham, Miller,
Montgomery, and KRS 640.040(1). The Court refused to rule that Phon’s LWOP
sentence was unconstitutional, and we are unconvinced the Court would come to a
different conclusion concerning Phon’s LWOP-25 sentence. 545 S.W.3d at 290-
99. The only reason Phon’s sentence was revised from LWOP to LWOP-25 is
because the LWOP sentence violated KRS 640.040(1). Id. at 308-09. Moreover,
the Court thoroughly discussed why the equitable remedy for Phon was to amend
his sentence to LWOP-25. Id. Phon has not directed our attention to, nor are we
aware of, any new law requiring us to distinguish the Kentucky Supreme Court’s
prior decision. “The Court of Appeals is bound by and shall follow applicable
precedents established in the opinions of the Supreme Court and its predecessor
court.” Rule of the Supreme Court (SCR) 1.030(8)(a). Thus, the court did not
abuse its discretion.
Phon’s second issue, that the Kentucky parole system as applied to
juvenile offenders violates the Eighth Amendment, is not ripe for judicial review.
As the Kentucky Supreme Court stated in Bingham Greenebaum Doll, LLP v.
Lawrence:
-5- Ripeness under federal law is a jurisdictional requirement under Article III of the United States Constitution. This requirement similarly appears under the Kentucky Constitution in that circuit courts have original jurisdiction of all justiciable causes not vested in some other court. For a claim to be justiciable, it must be ripe. As this Court has recognized, the basic rationale of the ripeness requirement is to prevent the courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements. A fundamental tenet of Kentucky jurisprudence is that courts cannot decide matters that have not yet ripened into concrete disputes. Courts are not permitted to render advisory opinions.
567 S.W.3d 127, 129-30 (Ky. 2018) (quotation marks, brackets, and citations
omitted). Here we are dealing with the type of hypothetical the courts have warned
against.
To determine whether a claim is ripe and therefore justiciable the
court must weigh “(1) the hardship to the parties of withholding court
consideration; and (2) the fitness of the issues for judicial review.” W.B. v.
Commonwealth, Cabinet for Health and Family Services, 388 S.W.3d 108, 114
(Ky. 2012) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18
L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S.
99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).
In the case sub judice, Phon claims to suffer hardship and injury
through “his continued incarceration without review by a releasing authority based
on the factors outlined in Graham, Miller, and Montgomery in violation of the -6- Eighth Amendment of the U.S. Constitution.” Appellant Br. at p. 6. Additionally,
he suggests the matter is fit for review because he “has been through the judicial
process to completion, creating records related to: sentencing, conviction, appeal,
correction of sentence, and appendices of affidavits and regulations demonstrating
the lack of meaningful and realistic opportunity for release provided through the
parole board process.” Id. at p. 7.
However, Phon’s claim is problematic because he alleges a due
process violation when he has not been subjected to a parole hearing, which he is
not eligible for until 2022. There is no administrative record to review in this case,
only policy and procedure documents Phon attached to his brief. Furthermore,
Phon’s challenge becomes moot should the parole board rule in his favor. “Here,
without a specific and developed factual record, we are presented with little more
than an abstract disagreement, and, moreover, deferment will result in little
hardship to the parties beyond those involved in any other case where the issues
are not ripe for decision.” W.B., 388 S.W.3d at 114 (citation omitted). As a result,
the court did not abuse its discretion.
For the foregoing reasons we need not address the merits of Phon’s
claim. We hereby affirm the Warren Circuit Court’s order denying relief pursuant
to RCr 11.42 and CR 60.02.
ALL CONCUR.
-7- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Laura A. Karem Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Robert Baldridge Assistant Attorney General Frankfort, Kentucky
-8-