Phon v. Commonwealth, No. 2006-CA-002456-MR (Ky. App. 3/7/2008)
| Decision Date | 07 March 2008 |
| Docket Number | No. 2006-CA-002456-MR.,2006-CA-002456-MR. |
| Parties | Sophal PHON, Appellant v. COMMONWEALTH of Kentucky, Appellee |
| Court | Kentucky Court of Appeals |
Rebecca Hobbs, Assistant Public Advocate, Frankfort, Kentucky, Briefs for Appellant.
Gregory D. Stumbo, Attorney General, Matthew R. Krygiel, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Before: ACREE, KELLER, and MOORE, Judges.
Sophal Phon (Phon) was less than 18 years of age when the Warren Circuit Court sentenced him to life in prison without the possibility of parole. Because he had been charged with a capital offense and the jury considered the death penalty among other possible sentences, Phon filed a motion for a new sentencing hearing based on Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The circuit court denied Phon's motion and it is from that order of denial that Phon appeals. For the following reasons, we affirm.
Two appeals have been prosecuted as a result of Phon's conviction. In Commonwealth v. Phon, 17 S.W.3d 106 (Ky. 2000), the Commonwealth unsuccessfully challenged the inclusion of life without the possibility of parole in the jury instructions. In Phon v. Commonwealth, 51 S.W.3d 456 (Ky.App. 2001), Phon unsuccessfully sought post-conviction relief based on a claim of ineffective assistance of counsel.
As set forth in Commonwealth v. Phon, 17 S.W.3d at 107,
Sophal Phon and his co-defendants . . . were jointly indicted for the 1996 burglary, robbery, and execution-style murder of a Warren County couple. The Commonwealth filed notice of its intent to seek the death penalty against four of the five defendants, including Phon, then a seventeen year old juvenile.
Before Phon's trial, two significant procedural events occurred. First, the trial court refused to sever Phon's trial from that of one of his co-defendants, Outh Sananikone (Sananikone). According to Phon, Sananikone had ordered the shootings and Phon complied with Sananikone's order out of fear for his life and the lives of his relatives. Phon's attorney feared that a jury would want to impose the death penalty on Sananikone and, having done so, would feel compelled to sentence Phon to death as well.
The second procedural event was the passage of HB 455 by the legislature. HB 455 provided for a sentence of life without parole in capital cases. Although passed by the legislature during the 1998 legislative session, the Act was not scheduled to take effect until after Phon's trial. In a pre-trial motion, the Commonwealth moved to exclude that sentence from the jury instructions. The trial court found that, although the legislation would not be effective until after the trial, Phon could opt to include the sentence of life without the possibility of parole in the jury instructions.
Faced with the possibility, if not probability, of a death sentence, "the day before his trial was scheduled to begin, Phon pled guilty . . . to two counts of murder, first degree assault, first degree robbery, and first degree burglary." Commonwealth v. Phon, 17 S.W.3d at 107. Phon also opted to include the sentence of life without parole in the jury instructions. We note that Phon was not motivated to enter into this plea by any offers or promises by the Commonwealth. The primary factor motivating Phon was avoidance of the death penalty, which his attorney believed could best be accomplished by a guilty plea and reliance on the mercy of a jury. After a jury trial on the sole issue of what sentence to impose, the jury recommended a sentence of life without the possibility of parole, which the circuit court imposed.
In 2005, approximately seven years after Phon's trial, the United States Supreme Court held that a death sentence for a defendant under the age of 18 was constitutionally prohibited. Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Phon filed his motion for a new sentencing hearing following the Roper decision arguing that, because he had been subject to the death penalty when he pled guilty, he should be entitled to a new sentencing hearing. The circuit court disagreed and, for the reasons set forth below, we affirm.
CR 60.02 provides that a court may "relieve a party or his legal representative from its final judgment, order, or proceeding[.]" Because the granting of relief is at the discretion of the trial court, we review the trial court's decision for abuse of that discretion. See White v. Commonwealth, 32 S.W.3d 83 (Ky.App. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004).
As noted by the Commonwealth in its brief, this Court had rendered a number of unpublished opinions arising from the Roper decision. By previous order, the Commonwealth's citations to those unpublished opinions have been stricken from the record. However, one of those opinions, Sims v. Commonwealth, 233 S.W.3d 731 (Ky.App. 2007), has now been published. In Sims, the defendant was subject to the death penalty and pled guilty in exchange for a recommendation from the Commonwealth of a sentence of life in prison without the possibility of parole for 25 years. This Court held that
the constitutional right established in Roper was that someone who was under 18 when he committed murder cannot be sentenced to death, not that he might escape a life sentence. Indeed, the Roper opinion contains an obiter dictum to the effect that life imprisonment without the possibility of parole remains a permissible sentence . . . .
This case differs from Sims because Phon received no consideration from the Commonwealth in exchange for his guilty plea. However, it is similar to Sims because both Sims and Phon entered into guilty pleas in an attempt to avoid the death penalty. During testimony at the hearing regarding Phon's ineffective assistance of counsel claim, Phon's trial counsel testified that he did not believe that Phon could win an acquittal and that a guilty plea leaving sentencing to the mercy of a jury was the only viable way for Phon to avoid the death penalty. Furthermore, as noted above, Phon's counsel believed it was of paramount importance to sever Phon's trial from Sananikone's and a guilty plea accomplished that goal. Based on the preceding considerations, Phon agreed to plead guilty and consented to including life without the possibility of parole in the jury instruction in the hope of avoiding a death sentence. Phon v. Commonwealth, 51 S.W.3d 456, 460 (Ky.App. 2001).
Phon's primary argument is that, if the death penalty had not been a possibility, he never would have opted to include the sentence of life without the possibility of parole in the jury instructions. Furthermore, Phon argues that inclusion of the now unconstitutional sentence of death in the jury instructions invalidated the jury's sentence. In support of that position, Phon cites to Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). However, that case can be easily distinguished. The Leary case involved convictions for possession of marijuana. Under the statutory provisions then in place, the government was required to establish a number of elements of the crime in order to obtain a conviction. The statute provided that mere possession of marijuana resulted in the presumption of certain elements of the crime, thus relieving the government of the burden of proving those elements. The...
To continue reading
Request your trial