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 M c NEILL, JUDGES.

M c NEILL, JUDGE: The appellant, Kevin Nigel Stanford (Stanford), was

convicted by a Jefferson County jury in 1982 of murder, sodomy, first

- degree

robbery, and r eceipt 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, Stanfor d’s sentence was commuted by Governor Paul Patton to life- 2

-

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 Amendment 3

jurisprudence and its practical impact on courts, victims and their families, and the

criminally accused or convic ted.

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 sodomiz ed 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. C ONST . 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 , 7 34 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 U nited 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 hel d that the Eighth Amendment prohibits the

imposition of life without parole sentence s 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 ).- 4

-

Supreme Court further clarified Miller and M ontgomery 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 punishme nt.” Id . at

1311. The Court further observed that “b ecause 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 oth er

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 senten cing 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- 5

-

(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 S ection 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 r easons, 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 iss ue 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 ’- 6

-

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 exc lusively 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 ther efor 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 c lemency 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- 7

-

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

K entucky 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 cont ext 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 wi ll 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 publica tion. 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.- 8

-

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 the ir 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
argu ment, 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 h ad 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 bou nd 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. ”

Com monwealth

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

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

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

from a commuta tion. Lastly, and by way of analogy, the U nited 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, 2 64

, 95 S. Ct. 379, 384, 42

L. Ed. 2d. 430 (19 7 4)

. 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.- 10

-

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 con siderations 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 const itutional protections. For example, the U nited

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 Constituti on).

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- 11

-

h ere. 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

argu ment 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 Clause 6

of our federal Constituti on, 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 o f its brief to discussing and applying those

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

6 U.S. C ONST

. a rt

. VI.

7 As previously stated, the U nited States Supreme Court’s most recent decision in Jones was decided while the present case was pending on appeal

.- 12

-

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 U nited 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 Cou rt 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 ex tremely 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. Com monwealth , 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

, Montgom ery , 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. Com monwealth

, like the present case, involved a post

conviction request for relief pursuant to RCr 11.42 and CR 60.02 and, although involvin g the- 13

-

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 [U nited 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 yout h

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 reas ons, 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 cons ider 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 Com monwealth v. Phon

, 17 S.W.3d 106, 108 (Ky. 2000), as corrected (Apr. 20, 2000).- 14

- 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.- 15

- (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 particular ly

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

ac complice, 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.- 16

- When Stanford left the station, he took Poore with h im. 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 drive r ’ 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 witn esses testified on

Stanford’s behalf, including his mother. And although unnecessary under Jones
, future Kentucky Supreme Court Justice and then presiding c ircuit 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 murde r case in [the c ourt’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- 17

-

ini tially 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

, becaus e 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 Sh epherd 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.- 18

- ALL CONCUR

.

BRIEF S 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