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

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0764-MR

KEVIN NIGEL STANFORD APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE AUDRA J. ECKERLE, JUDGE

ACTION NO. 82-CR-000406-001

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

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

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 
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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 RCr1 11.42 and CR2 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.

 

1 Kentucky Rules of Criminal Procedure.

2 Kentucky Rules of Civil Procedure.

3 U.S. CONST. amend. VIII, made applicable to the states through amend. XIV. See Robinson v. 

California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). 
-3-

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. 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

 

4 Stanford v. Commonwealth, 854 S.W.2d 742 (Ky. 1993) (motion under RCr 11.42) (Stanford 

III), cert. denied, 510 U.S. 1049, 114 S. Ct. 703, 126 L. Ed. 2d 669 (1994); Stanford v. Parker,

266 F.3d 442 (6th Cir. 2001) (Stanford IV) (petition for federal habeas corpus), cert. denied, 537

U.S. 831, 123 S. Ct. 136, 154 L. Ed. 2d 47 (2002); and Stanford v. Commonwealth, 248 S.W.3d 

579 (Ky. App. 2007) (Stanford V). 
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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-withoutparole 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 onthe-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
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(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’ 
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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 
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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 

 

5 We also note that at the time of Stanford’s 2003 commutation, LWOP was a lawful sentence 

under KRS 532.030. 
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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 

benefit of parole sought to have their sentences 

“corrected” to delete the condition of ineligibility for 

parole. Their theory, similar to Stanford’s, was that 

since Furman made the original death penalty 

retroactively invalid, they were entitled to the next 

highest sentence authorized by law, life imprisonment, 

which included the possibility of parole. The Court of 

Appeals, then Kentucky’s highest court, rejected this 

argument, noting “[t]he simple fact . . . that at the

time Furman was decided, the three appellants here were

not under death sentences. Those sentences had been

voided by commutations. Furman cannot reasonably be

considered to have a retrospective application to

nonexistent death sentences.” 514 S.W.2d at 190.

Similarly, at the time Roper was decided, Stanford was 

no longer under a death sentence, as his original sentence

had been voided by commutation nearly fifteen months 

earlier. Roper therefore does not have retroactive 

application to Stanford’s situation. While Stanford 

maintains that Hamilton was wrongly decided, in our 

view it still controls and we are therefore bound to follow 

it. SCR [Kentucky Supreme Court Rule] 1.030(8)(a).

. . . 
-9-

[A]ny argument that Stanford now objects to the 

commutation appears to be disingenuous at best, as his 

own pleadings reflect that Stanford specifically sought 

and applied for the commutation.

Stanford V, 248 S.W.3d at 580-81. In that same vein, the Kentucky Supreme Court 

has also held, albeit in the context of a case involving a guilty plea, that “upon the 

unqualified consent of the defendant, a sentence of life without parole may be 

lawfully imposed for capital crimes committed before July 15, 1998.” 

Commonwealth. v. Phon, 17 S.W.3d 106, 108 (Ky. 2000), as corrected (Apr. 20, 

2000). Like Commonwealth v. Phon, it logically follows that there is nothing 

barring a criminal defendant or inmate from consenting to a lesser sentence arising 

from a commutation. Lastly, and by way of analogy, the United States Supreme 

Court has held, inter alia, that “the conclusion is inescapable that the pardoning 

power was intended to include the power to commute sentences on conditions 

which do not in themselves offend the Constitution, but which are not specifically 

provided for by statute.” Schick v. Reed, 419 U.S. 256, 264, 95 S. Ct. 379, 384, 42

L. Ed. 2d. 430 (1974). Therefore, having considered the aforementioned

arguments and authority, we reject Stanford’s argument that Section 77 of the 

Kentucky Constitution does not authorize the Governor to impose a sentence 

greater than the maximum sentence authorized by the legislature at the time of the 

underlying offense. 
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2. Stanford’s Eighth Amendment rights were not violated.

As previously stated, we are 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. Despite 

these considerations and the preceding analysis, a governor’s clemency power is 

not absolute or, more precisely, while a governor’s authority to grant a 

commutation is plenary, the new sentence imposed may be subject to judicial 

review if it violates specific constitutional protections. For example, the United 

States Supreme Court has observed that “[c]ourts may not alter a President’s

commutation, except perhaps if the commutation itself violates the Constitution.” 

Dennis v. Terris, 927 F.3d 955, 959 (6th Cir. 2019) (citing Schick, 419 U.S. at 264,

95 S. Ct. at 384). See also Foley v. Beshear, 462 S.W.3d 389 (Ky. 2015) 

(subjecting the Governor’s authority under Section 77 to a due process analysis 

pursuant to the federal Constitution). 

We see no reason why the logic embraced in Schick and Foley would 

preclude subjecting the present case to judicial review pursuant to the Eighth 

Amendment. The point is that the sentences imposed under Section 77 of the 

Kentucky Constitution are not impervious to judicial oversight when a specific 

case implicates constitutional safeguards, which may arise by judicial decisions 

retroactively applied years after the crime and sentencing occurred, as is the case 
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here. This is not to conclude that every clemency order is subject to constitutional 

review as a matter of right. To the contrary, we cannot overly stress the unique 

circumstances presented here. To be clear, the distinction between Stanford’s first 

argument and the present is that Stanford’s present argument arises under the 

Eighth Amendment and its accompanying directives from our nation’s highest 

Court. Thus, Stanford’s argument at the very least invokes the Supremacy Clause6

of our federal Constitution, whereas his previous argument was confined to the 

relevant sections of the Kentucky Constitution as discussed. In other words, there 

was no federal issue raised with his first claim in this appeal. 

As to his Eighth Amendment argument, however, it is nevertheless 

unclear whether Miller, Montgomery, or Jones apply in this specific context where 

a LWOP sentence has been issued as a result of a commutation, as opposed to a 

final judgment issued by a trial court. Counsel has cited no authority on the matter 

and this Court has not discovered any clear directive. It is noteworthy that the 

Commonwealth does not contest that Miller and Montgomery apply here.7 In fact, 

the Commonwealth devotes much of its brief to discussing and applying those 

cases in concluding that their respective standards have been satisfied. Given the 

 

6 U.S. CONST. art. VI. 

7 As previously stated, the United States Supreme Court’s most recent decision in Jones was 

decided while the present case was pending on appeal. 
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absence of a clear directive and the unique facts of this case, we believe an Eighth 

Amendment analysis is appropriate.8 

However, a gubernatorial commutation and its accompanying record 

is an inadequate substitution for the trial record for purposes of an analysis 

pursuant to the most recent United States Supreme Court case law which involved 

either the imposition of LWOP sentences resulting from a jury verdict or the 

imposition of a mandatory LWOP by the trial court.9 And although this Court has 

previously concluded that Stanford’s “original sentence had been voided by 

commutation[,]” we have not been instructed that the sentencing proceeding or the 

sentencing record has been voided. Stanford V, 248 S.W.3d at 581. Therefore, 

due to the extremely novel nature of this issue and out of an abundance of caution, 

we will review the relevant portions of the trial record and determine whether the 

dictates of Miller, Montgomery, and Jones have been satisfied. 

In Phon v. Commonwealth, the Kentucky Supreme Court applied the 

holdings and Miller and Montgomery. 545 S.W.3d 284, 293 (Ky. 2018).10 And 

 

8 We also note that the Eighth Amendment is intended to protect the rights of the criminally 

accused and convicted. Therefore, any ambiguity as to whether Miller, Montgomery, and Jones

are even applicable in the present case should be resolved in the affirmative. 

9 An affidavit signed by Governor Patton has been filed in this case where he states that the only

factor he considered in granting Stanford’s commutation was his age, not any other attendant 

factors articulated in Miller or Montgomery. 

10 For the sake of clarity, Phon v. Commonwealth, like the present case, involved a postconviction request for relief pursuant to RCr 11.42 and CR 60.02 and, although involving the 
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although the Phon Court did not have the benefit of Jones at the time, the analysis 

embraced in Phon generally comports with Jones. Id. at 293-98. For example, 

Phon specifically observed that “[t]he [United States Supreme] Court did not 

outlaw LWOP as a possible sentence for juveniles but deemed that a mandatory

sentence of LWOP without attention to any of the attendant circumstances of youth 

violates the requirement of proportionality under the Constitution.” Id. at 293. 

Therefore, Phon continues to provide a useful resource. 

Although the Court ultimately reversed Phon’s sentence and 

remanded for a new sentencing hearing for other reasons, the Court concluded 

that:

Phon had an extensive sentencing hearing. He presented 

multiple witnesses to present a case of mitigation. 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 opportunity to consider his age 

and his “youthful” characteristics. The Constitution 

guarantees an opportunity for the sentencer to consider

these characteristics; it does not require that the sentencer 

accept those characteristics as worthy of mitigating an 

LWOP sentence. As such, Phon’s sentencing did not 

violate the Eighth Amendment of the federal 

Constitution[.] 

Id. at 293-294. 

 

same parties, is separate and distinct from the previously cited case of Commonwealth v. Phon, 

17 S.W.3d 106, 108 (Ky. 2000), as corrected (Apr. 20, 2000). 
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As in Phon, Stanford presented the testimony of several witnesses 

during the capital sentencing phase of trial, including his former stepfather, his 

aunt, and a juvenile counselor who specifically agreed that she believed Stanford 

could be rehabilitated. A Louisville Urban League instructor also testified that 

Stanford was “capable of being treated.” The former director of the Juvenile 

Employment Skills Project for the Louisville Urban League, who had contact with 

Stanford while he was enrolled in that program, also specifically testified that 

there was a “65 to 70% chance that Mr. Stanford could, in fact, be rehabilitated 

based on [his] experiences.” However, that witness concluded that rehabilitation 

could not take place in the adult penal system and that alternative programs would 

be necessary. In addition, the jury instructions included an extensive list of 

twenty mitigating circumstances including: 

(a) That at the time of the offense Kevin Stanford was of 

 a very youthful age in light of the fact that he was 

 only 17 years old.

(b) That at the time of the offense the capacity of Kevin 

 Stanford to appreciate the criminality of his conduct 

 or to conform his conduct to the requirements of law 

 was impaired as a result of mental disease or defect, 

 even though the impairment of the capacity of Kevin 

 Stanford to appreciate the criminality of his conduct 

 or to conform his conduct to the requirements of law 

 was insufficient to constitute a defense to the crime.

. . . 

(g) That Kevin Stanford is emotionally immature.
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(h) That Kevin Stanford is not a leader but is a follower 

 of other people’s actions.

(i) That Kevin Stanford was capable of being

 rehabilitated. 

Therefore, the jury was allowed to consider mitigating evidence similar to that 

articulated in Phon. Also like in Phon, it is reasonable to conclude that the facts 

surrounding Stanford’s offenses are indicative of the “rare juvenile offender

whose crime reflects irreparable corruption[.]” 545 S.W.3d at 292 (citations 

omitted). The Sixth Circuit Court of Appeals’ recitation of the facts underlying 

the crimes committed by Stanford and his accomplices proves particularly 

instructive, and therefore, it is necessary to quote that decision at length:

In 1981, [the victim,] Baerbel Poore worked as an 

attendant at a Checker gasoline station in southwestern 

Jefferson County, Kentucky. Working alone one 

evening, she read the gas pumps in preparation for 

closing the station for the night. Stanford, then seventeen 

years old, lived in the vicinity of the Checker station and 

knew Poore. On January 7, 1981, he and David 

Buchanan decided to rob the station. Troy Johnson, their 

accomplice, agreed to drive the get-away car but refused 

to participate in the robbery.

As Poore finished reading the pumps, Stanford 

approached her with a gun and, together with Buchanan, 

forced Poore inside the station’s convenience store. 

Once inside, Buchanan attempted to open the store’s 

floor safes while Stanford took Poore to a restroom and 

raped her. Buchanan soon joined Stanford in the 

restroom, where they continued to rape and sodomize 

Poore.
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When Stanford left the station, he took Poore with him. 

Driving Poore’s car, he drove her a short distance to an 

isolated area. Buchanan and Johnson followed in 

Johnson’s car. When the cars stopped, Buchanan exited 

Johnson’s car and approached Poore’s. He saw Stanford 

standing just outside the open driver’s door and Poore 

smoking a cigarette in the back seat. Suddenly, Stanford 

shot Poore in the face at point blank range. He then shot 

her a second time in the head.

Stanford IV, 266 F.3d at 449. 

At the final sentencing hearing, five additional witnesses testified on 

Stanford’s behalf, including his mother. And although unnecessary under Jones, 

future Kentucky Supreme Court Justice and then presiding circuit Judge Charles 

M. Leibson acknowledged that while “a great deal of evidence was presented at the 

jury trial on the subject of mitigation[,]” there were “severe aggravating 

circumstances[,]” and that the victim was “subject to physical abuse and personal 

humiliation and terror, far worse than in any murder case in [the court’s] previous 

experience.” The court ultimately concluded that Stanford was beyond 

rehabilitation. In sum, based on the record in this case and the relevant precedent, 

the trial court did not abuse its discretion in denying Stanford’s post-conviction 

motions. We further conclude that Stanford’s Eighth Amendment rights were not 

violated. 

Lastly, we reach this result very much aware of the very unique

circumstances of this case, including the fact the United States Supreme Court
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initially affirmed Stanford’s death penalty before it reversed that precedent in

Roper. Had Stanford not been commuted prior to Roper, he would have been

entitled to be resentenced to a term of twenty years’ imprisonment or more, or life 

imprisonment, because neither death nor LWOP would have been permissible

options under the 1981 version of KRS 532.030(1). 

Our own General Assembly has since determined that LWOP is an

inappropriate sentence for youthful offenders. See Phon, 545 S.W.3d at 295

(citing Shepherd v. Commonwealth, 251 S.W.3d 309 (Ky. 2008)). It appears that

Stanford is the last person remaining in the Commonwealth who is serving a

LWOP sentence for crimes committed as a juvenile. Id. at 294. Furthermore, we

reiterate that applying Miller, Montgomery, and Jones in the context of a

commutation is a novel question and we are unaware of any binding precedent on

the matter. Nevertheless, absent further guidance concerning our

Commonwealth’s separation of powers or society’s “evolving standards of 

decency[,]” we cannot say that the trial court abused its discretion or that

Stanford’s Eighth Amendment rights were violated. Id. at 291 (internal quotation

marks and citations omitted). 

IV. CONCLUSION

For the foregoing reasons, we affirm the judgment of the Jefferson Circuit 

Court. 
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ALL CONCUR.

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