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~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.

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 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 ) 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 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))).

I.

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 · 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 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. . !

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 ~ .

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 ) 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: ( 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 \ 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).

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

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 ,~, . 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 j ; .

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 . \ 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, ) 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 · 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 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 \ /

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 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.

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 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 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.

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