Bloyer v. Commonwealth

• Decision Date: 16 June 2022
• Docket Number: 2020-SC-0473-DG
• Citation: 647 S.W.3d 219
• Parties: Alexander BLOYER, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

647 S.W.3d 219

Alexander BLOYER, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2020-SC-0473-DG

Supreme Court of Kentucky.

JUNE 16, 2022

COUNSEL FOR APPELLANT: Suzanne A. Hopf, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Daniel Cameron, Kentucky Attorney General, Aspen Roberts, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE NICKELL

The Court of Appeals affirmed a decision of the Hart Circuit Court denying Alexander Bloyer's motion seeking reconsideration of probation pursuant to KRS ¹ 640.075(4). We granted discretionary review. The sole question presented is whether the provisions of KRS 532.045 apply to render a juvenile convicted as a youthful offender of sexual offenses ineligible for probation.

When he was fifteen years old, Bloyer was transferred to Hart Circuit Court as a youthful offender after being charged with multiple sex crimes committed against his younger siblings. He ultimately entered a guilty plea to rape in the first degree, two counts of sexual abuse in the first degree (victim under twelve), five counts of sodomy in the first degree, and six counts of incest. He received an aggregate sentence of fifteen years’ imprisonment and was committed to the Department of Juvenile Justice (DJJ) until his eighteenth birthday.

As required by KRS 640.030(2), Bloyer returned to the Circuit Court for an age-eighteen hearing. Because he was still in the process of working through his treatment program, DJJ recommended Bloyer remain in its care and custody to permit time for completion of further treatment. The trial court ordered Bloyer to remain in DJJ custody to finish his program and set the matter for review. Approximately four months later, Bloyer—now aged eighteen years and four months—returned to the trial court. Although he filed a motion requesting to be probated, it was admitted "there was no place for him to go" as no placement location had been identified and Bloyer was not, in fact, seeking to be probated. Instead, the thrust of Bloyer's argument was seeking permission to remain with DJJ, this time until he turned 21 as permitted under KRS 640.075(1), rather than being transferred to the Department of Corrections. Once again, the trial court ordered Bloyer to continue treatment with DJJ and set an "adult sentencing" hearing closer to Bloyer's twenty-first birthday.

Shortly before he turned twenty-one, Bloyer filed a motion to reconsider probation pursuant to KRS 640.075(4). On March 5, 2019, the trial court conducted a nearly three-hour evidentiary hearing on the motion, taking testimony from several witnesses. In a written order entered several weeks later, the trial court denied Bloyer's motion upon determining the provisions of KRS 532.045(2) prohibited Bloyer from being probated. KRS 532.045 states, in relevant part:

(1) As used in this section:

(a) "Position of authority" means but is not limited to the position occupied by a biological parent, adoptive parent, stepparent, foster parent, relative, household member, adult youth leader, recreational staff, or volunteer who is an adult, adult athletic manager, adult coach, teacher, classified school employee, certified school employee, counselor, staff, or volunteer for either a residential treatment facility or a detention facility as defined in KRS 520.010(4), staff or volunteer with a youth services organization, religious leader, health-care provider, or employer;

(b) "Position of special trust" means a position occupied by a person in a position of authority who by reason of that position is able to exercise undue influence over the minor; and

(c) "Substantial sexual conduct" means penetration of the vagina or rectum by the penis of the offender or the victim, by any foreign object; oral copulation; or masturbation of either the minor or the offender.

(2) Notwithstanding other provisions of applicable law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provision of this section be stricken for a person convicted of violating KRS 510.050, 510.080, 529.040, 529.070, 529.100 where the offense involves commercial sexual activity, 530.020, 531.310, 531.320, or 531.370, or criminal attempt to commit any of these offenses under KRS 506.010, and, who meets one (1) or more of the following criteria:

....

(h) A person who in committing any of the offenses enumerated in this subsection has substantial sexual conduct with a minor under the age of fourteen (14) years; or (i) A person who occupies a position of special trust and commits an act of substantial sexual conduct.

The trial court concluded Bloyer had been convicted of incest ( KRS 530.020 ) against his relatives who resided in the same household and the victims were under fourteen years of age, thereby bringing him under the purview of KRS 532.045 and rendering him ineligible for probation. The trial court also concluded KRS 640.040 does not exempt youthful offenders from application of KRS 532.045. Bloyer appealed to the Court of Appeals.

The Court of Appeals affirmed the trial court, borrowing heavily from our decision in Commonwealth v. Taylor , 945 S.W.2d 420 (Ky. 1997), which concluded KRS 532.045(2) applied to youthful offenders. Noting the statutory language had remained unchanged in the two and a half decades following Taylor , the Court of Appeals held the General Assembly implicitly agreed with our interpretation. In addition, the panel found that while KRS 640.040 contained exemptions for youthful offenders from the limitations of KRS 532.080 (persistent felony offender sentencing) and KRS 533.060 (use of firearms, commission of felonies while on probation, parole, awaiting trial, etc.), there was absolutely no language exempting youthful offenders from the application of KRS 532.045. Thus, the Court of Appeals found the legislature had made clear that certain sexual offenders should be ineligible for probation, regardless of the offender's age at the time of commission of the crime. The panel rejected Bloyer's contention our holdings in Commonwealth v. Merriman , 265 S.W.3d 196 (Ky. 2008), and Britt v. Commonwealth , 965 S.W.2d 147 (Ky. 1998), should be read as sub silentio overruling Taylor and requiring an expansive reading of the ameliorative provisions of KRS 640.030. However, noting a potential disconnect in logic between Taylor and Merriman , the Court of Appeals signaled its desire for this Court to address the issue and definitively resolve any conflict. Finally, the Court of Appeals concluded Bloyer's constitutional arguments under the Eighth Amendment to the United States Constitution and Sections Two and Eleven of the Kentucky Constitution were without merit. We granted discretionary review.

Before this Court, Bloyer contends youthful offenders are entitled access to the full ameliorative provisions of the juvenile code and may not be precluded from consideration of probation. He asserts the trial court and the Court of Appeals erred in holding to the contrary. Bloyer asks this Court to address and reconcile what he believes are patently conflicting rulings in Taylor and Merriman , urging us to disregard Taylor as outdated and incompatible with or superseded by "current" interpretations of the juvenile code. He argues applying KRS 532.045 to youthful offenders results in disproportionate sentencing and cruel and unusual punishment in violation of Sections Two, Eleven, and Fourteen of the Kentucky Constitution and the Eighth Amendment to the United States Constitution, and tangentially asserts an equal protection claim. Finally, Bloyer urges this Court to clarify that KRS 640.075 requires youthful offenders retained by DJJ for extended treatment be given the opportunity to present mitigating evidence at a final sentencing hearing. We affirm the court of appeals.

"The legislature makes the laws, deciding what is a crime and the amount of punishment to impose for violations thereof. Simply enough, the task of setting a punishment for a given crime is a legislative function." Phon v. Commonwealth , 545 S.W.3d 284, 303 (Ky. 2018) (internal citations and quotation marks omitted). Pertinent to our discussion, KRS 640.030 states, in pertinent part:

A youthful offender , who is convicted of, or pleads guilty to, a felony offense in Circuit Court, shall be subject to the same type of sentencing procedures and duration of sentence, including probation and conditional discharge, as an adult convicted of a felony offense[.]

(Emphasis added). In KRS 640.040, the legislature expressly created four exceptions to the applicability of KRS 640.030, eliminating capital punishment or sentences of life imprisonment without the possibility of parole, exempting youthful offenders from persistent felony offender sentencing and the limitations on parole or probation eligibility contained in KRS 533.060, and excluding adult sentencing procedures if the youth is ultimately convicted of a crime which would not have originally permitted transfer to the circuit court. The language of KRS 640.040 is a clear pronouncement of legislative intent to limit youthful offenders from some of this Commonwealth's harshest penalties. Notably, KRS 532.045 does not appear as an exception to KRS 640.030.

In Taylor , this Court squarely addressed the basic question presented in this matter—whether the prohibitions on probation contained in KRS 532.045 apply to youthful offenders. We clearly answered that inquiry in the affirmative. Nevertheless, Bloyer contends he should not be subject to the prohibition due to his status as a youthful offender. He believes the Court of Appeals incorrectly relied on this Court's decision in Taylor , rather than the more recent decision in Merriman . He is incorrect.

Bloyer was convicted of incest pursuant to KRS 530.020, among numerous other charges, relative to the multiple instances of oral and anal sodomization of his seven-year-old brother and rape and sodomization of...