Phon v. Com. of Ky.
545 S.W.3d 284
| Mo. Ct. App. | 2018Background
- In August 1996 fifteen- or sixteen-year-old Sophal Phon, a gang member, participated in the execution-style murders of two adults and shot their 12-year-old daughter (who survived); he pled guilty and proceeded to a jury sentencing hearing.
- At sentencing (1998) the jury was presented with options including death, life without parole (LWOP), LWOP with parole eligibility after 25 years (LWOP 25), life, and fixed terms; the jury found an aggravator and recommended LWOP; the circuit court imposed LWOP.
- Phon pursued multiple collateral attacks (RCr 11.42 and CR 60.02); earlier challenges were denied; after Miller and Montgomery he sought relief again; the Court of Appeals denied relief and this Court granted discretionary review.
- The Supreme Court of Kentucky held that Miller forbids mandatory juvenile LWOP but does not categorically bar discretionary LWOP where the sentencer had a meaningful opportunity to consider youth and mitigation; no specific ‘‘incorrigibility’’ fact-finding is required.
- Separately, under Kentucky statutory law (KRS 640.040(1)), and this Court’s prior decision in Shepherd v. Commonwealth, LWOP was not an authorized juvenile sentence except as LWOP 25; applying Shepherd retroactively, Phon’s original LWOP exceeded statutory authorization and was thus illegal/void.
- Because an illegal sentence is void, the Court remanded for correction: Phon’s LWOP is vacated and the trial court must impose the highest remaining lawful aggravated sentence, LWOP 25.
Issues
| Issue | Plaintiff's Argument (Phon) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether the Eighth Amendment forbids all juvenile LWOP, even under discretionary schemes | LWOP is categorically unconstitutional for juveniles or at least requires more than a discretionary scheme | Miller/Montgomery prohibit only mandatory schemes; discretionary sentencing that truly considers youth is permissible | Discretionary LWOP is not categorically forbidden if sentencer had a meaningful opportunity to consider youth and mitigation; Phon’s procedure satisfied Miller/Montgomery |
| Whether Miller/Montgomery require specific factual findings (e.g., "permanent incorrigibility") before imposing juvenile LWOP | Absent a finding of incorrigibility, LWOP is disproportionate and unconstitutional | Miller requires consideration of youth but not formalized fact-finding; sentencer may determine proportionality | No formal fact-finding of incorrigibility is required; so long as youth and attendant characteristics were considered, no additional finding is mandated |
| Whether Kentucky Constitution (Section 17) independently forbids juvenile discretionary LWOP | Kentucky’s Eighth-like provision prohibits juvenile LWOP as cruel and unusual | State constitution does not prohibit discretionary LWOP when procedure allows consideration of youth; statutory sentencing scheme controls | Kentucky Constitution does not categorically forbid discretionary juvenile LWOP; case-specific analysis governs and Phon’s sentence was constitutionally permissible |
| Whether Phon’s LWOP sentence complied with Kentucky statutory juvenile-sentencing limits (KRS 640.040) and whether an illegal sentence can be corrected after many years | Phon argues KRS 640.040 limits juvenile aggravated sentence options to LWOP 25 and he did not waive that protection; his LWOP thus was illegally imposed and correctable | Commonwealth had relied on prior certification and procedural bars; argued timeliness and consent issues | Shepherd construed KRS 640.040 to permit only Class A felony ranges and LWOP 25 for youthful offenders; Shepherd applies retroactively as a clarification; Phon’s LWOP was statutorily unauthorized (void) and must be corrected to LWOP 25 |
Key Cases Cited
- Miller v. Alabama, 567 U.S. 460 (U.S. 2012) (mandatory juvenile LWOP violates Eighth Amendment; sentencer must consider youth and attendant characteristics)
- Montgomery v. Louisiana, 136 S. Ct. 718 (U.S. 2016) (Miller announced a substantive rule; retroactive effect on collateral review; Miller requires consideration of youth but not formal incorrigibility findings)
- Roper v. Simmons, 543 U.S. 551 (U.S. 2005) (death penalty unconstitutional for juvenile offenders)
- Graham v. Florida, 560 U.S. 48 (U.S. 2010) (categorical prohibition on LWOP for nonhomicide juvenile offenders; framework for proportionality review)
- Shepherd v. Commonwealth, 251 S.W.3d 309 (Ky. 2008) (KRS 640.040 limits sentencing options for youthful offenders; LWOP not an available juvenile sentence except LWOP 25)
- McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010) (illegal sentence outside statutory limits is an abuse of discretion and cannot be enforced despite defendant’s consent)
- Ex parte Lange, 85 U.S. 163 (U.S. 1873) (sentence beyond lawful authority is void)