Stanford v. Commonwealth

• Decision Date: 15 October 2021
• Docket Number: 2019-CA-0764-MR
• Citation: 643 S.W.3d 96
• Parties: Kevin Nigel STANFORD, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: Kentucky Court of Appeals

643 S.W.3d 96

Kevin Nigel STANFORD, Appellant

v.COMMONWEALTH of Kentucky, Appellee

NO. 2019-CA-0764-MR

Court of Appeals of Kentucky.

OCTOBER 15, 2021; 10:00 A.M.

Discretionary Review Denied by Supreme Court April 20, 2022

BRIEFS FOR APPELLANT: Timothy G. Arnold, Frankfort, Kentucky.

BRIEF FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky, Jason B. Moore, Special Assistant Attorney General, Frankfort, Kentucky.

BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND McNEILL, JUDGES.

OPINION

McNEILL, JUDGE:

The appellant, Kevin Nigel Stanford (Stanford), was convicted by a Jefferson County jury in 1982 of murder, sodomy, first-degree robbery, and receipt of stolen property valued in excess of $100. He was sentenced to a total of forty-five years in prison for the robbery, sodomy, and theft convictions. Stanford was sentenced to death for the murder conviction. He was seventeen years, four months old at the time he committed the underlying crimes. In 2003, Stanford's sentence was commuted by Governor Paul Patton to life without the possibility of parole (LWOP). The present case concerns the trial court's denial of Stanford's most recent post-conviction motions for relief pursuant to RCr ¹ 11.42 and CR ² 60.02. For the following reasons, we affirm the trial court. In so holding, we are cognizant of the ever-shifting sea of Eighth Amendment³ jurisprudence and its practical impact on courts, victims and their families, and the criminally accused or convicted.

I. FACTUAL AND PROCEDURAL BACKGROUND

In affirming Stanford's conviction on appeal, the Kentucky Supreme Court summarized the facts of the underlying crimes as follows:

On the evening of January 7, 1981, Baerbel Poore was repeatedly raped and sodomized during and after the commission of a robbery at the Checker gasoline station on Cane Run Road in southwestern Jefferson County where she was employed as an attendant. The proceeds of the robbery consisted of approximately 300 cartons of cigarettes, two gallons of fuel and a small amount of cash. Following the robbery Ms. Poore was taken from the station and driven a short distance to an isolated area where she was shot twice, once in the face and once, fatally, in the head.

Stanford v. Commonwealth , 734 S.W.2d 781, 783 (Ky. 1987) ( Stanford I ), aff'd sub nom. Stanford v. Kentucky , 492 U.S. 361, 109 S. Ct. 2969, 106 L.Ed.2d 306 (1989) ( Stanford II ).

Thereafter, Stanford unsuccessfully sought post-conviction relief.⁴ In 2005, the United States Supreme Court abrogated Stanford v. Kentucky and held that that application of the death penalty to juvenile offenders was unconstitutional. See Roper v. Simmons , 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). In Graham v. Florida , the Court held that the Eighth Amendment prohibits the imposition of life without parole sentences for juvenile offenders who did not commit homicide. 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). In 2012, the Court prohibited the imposition of mandatory LWOP sentences for juveniles. See Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Thereafter, the Court held that Miller shall be retroactively applied and attempted to clarify Miller ’s holding. See Montgomery v. Louisiana , 577 U.S. 190, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016).

While the present case was pending on appeal and after it had been briefed by the parties and submitted to this Court for a decision, the United States Supreme Court further clarified Miller and Montgomery in Jones v. Mississippi , ––– U.S. ––––, 141 S. Ct. 1307, 209 L. Ed. 2d 390 (2021). Therein, the Court reiterated that "an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment."

Id. at 1311. The Court further observed that "because youth matters, Miller held that a sentencer must have discretion to consider youth before imposing a life-without-parole sentence, just as a capital sentencer must have discretion to consider other mitigating factors before imposing a death sentence." Id. at 1316. However, "the Court has never required an on-the-record sentencing explanation or an implicit finding regarding those mitigating circumstances." Id. at 1320 (emphasis in original). Moreover, "a separate factual finding of permanent incorrigibility is not required before a sentencer imposes a life-without-parole sentence on a murderer under 18." Id. at 1318-19. Lastly, "[t]he Court's precedents do not require an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility." Id. at 1321 (emphasis added).

II. STANDARDS OF REVIEW

We review a trial court's decision whether to grant relief pursuant to CR 60.02 or RCr 11.42 for an abuse of discretion. Brown v. Commonwealth , 932 S.W.2d 359, 362 (Ky. 1996) ; and 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 legal principles." Foley v. Commonwealth , 425 S.W.3d 880, 886 (Ky. 2014) (citing Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999) ). However, we apply a de novo standard of review to issues of constitutionality and statutory interpretation. Cumberland Valley Contractors, Inc. v. Bell Cty. Coal Corp. , 238 S.W.3d 644, 647 (Ky. 2007) ; Phon v. Commonwealth , 545 S.W.3d 284, 290 (Ky. 2018). With these standards in mind, we turn to the applicable law and the facts of the present case.

III. ANALYSIS

Appellant raises two arguments on appeal: 1) Stanford is entitled to resentencing because Section 77 of the Kentucky Constitution does not authorize the Governor to impose a sentence greater than the maximum sentence authorized by the legislature; and 2) Stanford's LWOP sentence is constitutionally excessive under recent case law. For the following reasons, we disagree.

1. Stanford's commutation sentence of LWOP did not violate Section 77 of the Kentucky Constitution.

LWOP was not a statutorily authorized sentence for a capital offense in 1981 when Stanford committed the underlying crimes at issue here. The version of Kentucky Revised Statute (KRS) 532.030(1) in effect at that time provided only three potential sentences for a capital offense: a term of twenty years’ imprisonment or more, life imprisonment, or death. Stanford's jury instructions reflected all three options. For the reasons previously discussed, a death sentence has been held to be unconstitutional in juvenile offender cases like the present. The more precise question now before this Court is whether Stanford's LWOP sentence resulting from a commutation is unlawful considering that it was not a permissible statutory option at the time he committed the underlying crimes in 1981.

The plain language of Section 77 of our Kentucky Constitution empowers the Governor exclusively to grant pardons and commutations and specifically provides as follows:

He shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons, except in case of impeachment, and he shall file with each application therefor a statement of the reasons for his decision thereon, which application and statement shall always be open to public inspection. In cases of treason, he shall have power to grant reprieves until the end of the next session of the General Assembly, in which the power of pardoning shall be vested; but he shall have no power to remit the fees of the Clerk, Sheriff or Commonwealth's Attorney in penal or criminal cases.

In applying this provision, our own Supreme Court has held "[t]he decision to grant clemency is left to the Governor's unfettered discretion." Wilson v. Commonwealth , 381 S.W.3d 180, 194 (Ky. 2012). See also Hamilton v. Commonwealth , 514 S.W.2d 188, 189 (Ky. 1974) (observing that "the Governor had authority to commute the death sentence to any lesser penalty [and that] [t]he decisions of the Federal courts adopted the same reasoning."). We are also well aware of the separation of powers constraints under Sections 27 and 28 of the Kentucky Constitution, which restrain courts from interfering with a governor's discretion under Section 77. And as previously cited, there is nothing contained in the plain language of Section 77 that limits a governor's authority to commute a sentence to only a statutorily authorized sentence in existence at the time of the underlying offense.⁵ Furthermore, Stanford has failed to cite any other clear or binding authority to the contrary. Rather, Stanford relies primarily on Alford v. Hines , 189 Ky. 203, 224 S.W. 752, 753 (1920) (holding that "[t]he Governor had power to commute the sentence or to pardon Alford altogether, but he had and has no power to change the statutes[.]"). However, the Court's decision in Alford was confined to the context of parole eligibility which, the Court concluded, "is not made to depend upon the time to which his sentence may be commuted, but entirely and wholly upon the term of imprisonment provided by law for the crime for which he was committed[.]" Id. We will not belabor the facts or reasoning employed in Alford . It is factually distinguishable from the present case, contains no direct analysis of Section 77, is over one hundred years old, and has not been cited by a single appellate court since its publication. Even a charitable reading of Alford favoring Stanford's argument is insufficient to overcome the broad authority afforded to a governor under Section 77 of the Kentucky Constitution and the robust separation of powers provisions under Sections 27 and 28. We believe that Hamilton remains controlling. Hamilton was summarized in Stanford V as follows:

[A]fter the Supreme Court's decision in Furman v. Georgia , 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), three defendants who had had their death sentences previously commuted to life without the

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