RENDERED: OCTOBER 14, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0666-MR

CEDRIC O’NEAL APPELLANT 

v. 

APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE THOMAS D. WINGATE, JUDGE

ACTION NO. 21-CI-00069

COMMONWEALTH OF KENTUCKY; 

COOKIE CREWS, DEPARTMENT OF 

CORRECTIONS COMMISSIONER; 

DANIEL AKERS, WARDEN; DANIEL 

J. CAMERON; KENTUCKY 

DEPARTMENT OF CORRECTIONS; 

AND KENTUCKY PAROLE BOARD, 

PARTY OF INTEREST APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

ACREE, JUDGE: Cedric O’Neal appeals the Franklin Circuit Court’s order 

dismissing his petition for declaratory judgment. He contends the circuit court 
-2-

erred in determining his sentence does not violate the Eighth Amendment’s 

prohibition against cruel and unusual punishment. Finding no error, we affirm.

BACKGROUND

A Jefferson County jury convicted O’Neal of wanton murder and 

first-degree robbery in 1998. He was fourteen years old at the time he committed 

the offenses. The jury sentenced him to life imprisonment with the possibility of 

parole, and the Kentucky Supreme Court affirmed both his conviction and 

sentence. He served his sentence with the Department of Juvenile Justice until he 

turned eighteen, and thereafter at a Department of Corrections facility. O’Neal has 

repeatedly applied for parole, which has been denied in each instance due to the 

seriousness of the underlying offenses. 

O’Neal has mounted several challenges to his sentence. In 2003, 

O’Neal filed an RCr1 11.42 motion claiming ineffective assistance of counsel. The

motion was denied, and this Court affirmed. O’Neal v. Commonwealth, No. 2003-

CA-001926-MR, 2006 WL 750274 (Ky. App. Mar. 24, 2006). In 2017, O’Neal 

filed a second RCr 11.42 motion. He argued his life sentence was unconstitutional, 

and based his second motion on the decisions of the Supreme Court of the United 

States in Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012) and Montgomery v. Louisiana, 577 U.S. 190, 136 S. Ct 718, 193 L. Ed. 2d 

1 Kentucky Rules of Criminal Procedure.
-3-

599 (2016). The trial court denied his second motion, and the Court of Appeals 

again affirmed; this Court determined, though O’Neal correctly stated that Miller 

and Montgomery prohibit mandatory life sentences without the possibility of

parole for juveniles, O’Neal’s life sentence included the possibility of parole, and 

thus his sentence did not violate the Eighth Amendment. O’Neal v. 

Commonwealth, No. 2019-CA-000447-MR, 2020 WL 1074673 (Ky. App. Mar. 6, 

2020).

On February 22, 2021, O’Neal filed another action with Division II of 

the Franklin Circuit Court. In his petition for a declaratory judgment, he again 

argued KRS2 635.020(4) is unconstitutional under the Eighth Amendment, and 

again cited Miller and Montgomery – as well as Graham v. Florida, 560 U.S. 48, 

130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) – to support his petition.

The Commonwealth and the Attorney General filed a joint motion to 

dismiss under CR3 12.02(f) on March 19, 2021. The Attorney General argued 

O’Neal failed to state a cause of action against the Attorney General, and that 

Miller and Montgomery did not render KRS 635.020(4) unconstitutional. The 

circuit court agreed and granted the Attorney General’s motion to dismiss in an 

order entered May 7, 2021. In addition to declining to consolidate this action with 

2 Kentucky Revised Statutes.

3 Kentucky Rules of Civil Procedure.
-4-

another action O’Neal had filed with Division I of the Franklin Circuit, the circuit 

court held the Attorney General is not a necessary party to actions challenging the 

validity of statutes; instead, the Attorney General is able to join such actions at his 

option. More central to the present appeal, the circuit court determined O’Neal 

failed to articulate just how KRS 635.020(4) is unconstitutional. He failed to 

demonstrate how Graham, Miller, and Montgomery render the statute 

unconstitutional but, in any event, they do not apply to him because his sentence 

includes the possibility of parole. This appeal followed.

STANDARD OF REVIEW

Because a motion to dismiss for failure to state a claim under CR 

12.02(f) is a question of law, it is subject to de novo review. Campbell v. Ballard, 

559 S.W.3d 869, 870 (Ky. App. 2018) (citing Carruthers v. Edwards, 395 S.W.3d 

488, 491 (Ky. App. 2012)). The trial court must liberally construe pleadings in a 

light most favorable to the petitioner and must take the allegations contained 

therein as true. Id. at 870-71.

ANALYSIS

O’Neal contends the circuit court erred in finding KRS 635.020(4) to 

be constitutional. The circuit court did not so err, and the circuit court therefore 

correctly concluded O’Neal was not entitled to relief under any set of provable 

facts. KRS 635.020(4) provides how juvenile defendants charged with a felony 
-5-

involving a firearm are to be treated prior to trial. At the time of O’Neal’s charge 

and conviction, the statute provided such juveniles “shall be subject to the same 

penalties as an adult offender[.]” KRS 635.020(4) (1997). O’Neal’s offenses 

involved the use of a firearm in their commission, resulting in his transfer to circuit 

court to be tried as an adult.

Our courts have repeatedly upheld KRS 635.020(4) as constitutional. 

See Perkins v. Commonwealth, 511 S.W.3d 380 (Ky. App. 2016) (holding KRS 

635.020(4) violates neither substantive due process nor equal protection); see also 

Hunter v. Commonwealth, 587 S.W.3d 298 (Ky. 2019) (holding KRS 635.020(4) 

does not unconstitutionally subject a juvenile defendant to penalties beyond 

prescribed statutory maximums without consideration by a jury and reaffirming 

KRS 635.020(4) complies with substantive due process and equal protection). 

O’Neal challenges the statute on Eighth Amendment grounds, arguing it is cruel 

and unusual punishment to impose a life sentence upon a juvenile defendant who 

finds his case transferred to circuit court where the child is to be tried as an adult. 

For support, he offers the Supreme Court of the United States’ decisions in Miller,

567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407; Montgomery, 577 U.S. 190, 136 

S. Ct. 718, 193 L. Ed. 2d 599; and Graham, 560 U.S. 48, 130 S. Ct. 2011, 176 L.

Ed. 2d 825.
-6-

None of these cases supports O’Neal’s argument. As we previously

explained, Miller, Montgomery, and Graham do not apply to O’Neal’s 

circumstances – a life sentence with the possibility of parole – when we affirmed

denial of his second RCr 11.42 motion: 

In Miller v. Alabama, the U.S. Supreme Court 

addressed Alabama’s mandatory sentencing scheme. It 

held that sentencing a juvenile homicide offender to a 

mandatory life sentence, without the possibility of parole, 

was a violation of the Eighth Amendment to the United 

States Constitution. Miller, 567 U.S. at 489, 132 S. Ct. at 

2474-75. The Court focused on its decision in Graham v. 

Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010), which held that juvenile offenders could not be 

sentenced to life without parole for nonhomicide 

offenses. Miller, 567 U.S. at 470, 132 S. Ct. at 2463. It 

then incorporated Graham’s emphasis on the youthful 

status of the defendants and their ability to 

rehabilitate. Id. at 470-71, 132 S. Ct. at 2463-64. The 

majority’s main concern was with the mandatory 

imposition of the sentence because mandatory sentencing 

schemes do not allow for the sentencing authority’s 

discretion and consideration of factors relating to a 

juvenile offender’s age, specifically any lessened 

culpability and greater capacity for change. Id. at 465, 132 

S. Ct. at 2460 (internal quotations and citation omitted). 

Finally, the Court concluded in Miller, based on its 

reasoning in Graham, that a sentence of life without parole 

is possible for a juvenile homicide offender – but only 

where the sentencing authority has discretion to consider 

mitigating factors related to youth. Id. at 480, 132 S. Ct. 

at 2469.

Then, in Montgomery v. Louisiana, the Supreme 

Court reaffirmed its holding in Miller. It held that Miller’s 

rule was substantive and acted retroactively in cases on 

collateral review. Montgomery, 136 S. Ct. at 726, 732. 
-7-

The Court did point out that Miller’s holding has a 

procedural component, which requires the sentencing 

authority consider factors related to the juvenile offender’s 

youth before finding a life sentence without parole to be a 

proportionate sentence to the crime(s) committed. Id. at 

734. Significantly, the Court noted that though it had 

created a retroactive rule regarding sentencing, states 

would not have to relitigate sentences and convictions in 

this category of cases. Id. at 736. Instead, a state could 

remedy the violation by permitting juvenile offenders to 

be considered for parole after a term of years had been 

served. Id.

O’Neal does correctly state that the Supreme Court, 

in Miller and Montgomery, decided that life sentences 

mandatorily imposed on juvenile offenders violate the 

Eighth Amendment and are subject to collateral attack 

where the defendant is not afforded a meaningful 

opportunity to present mitigating evidence. However, as 

pointed out by the Commonwealth and the trial court, 

O’Neal was not sentenced to life imprisonment without 

the possibility of parole. He was only sentenced to life in 

prison. O’Neal had the ability to appear before the 

Kentucky Parole Board. He still had the option to petition 

for parole, which he did on multiple occasions – as 

evidenced by his parole being denied. The Supreme Court 

of Kentucky upheld this sentence as constitutional on 

direct appeal, and his sentence is dissimilar to those which 

the Supreme Court of the United States expressed its 

concern in Miller and Alabama.

O’Neal, 2020 WL 1074673 at *2. Our analysis applies with equal force to the 

current appeal. No precedent exists which would render O’Neal’s sentence cruel 

and unusual punishment, and we decline to extend the scope of such precedent 

here. The circuit court properly determined O’Neal would not be entitled to relief 
-8-

under any facts he could prove in support of his claim, and, accordingly, we affirm 

the circuit court’s dismissal of O’Neal’s petition.

Next, O’Neal apparently does not challenge the circuit court’s 

dismissal of the Attorney General from the underlying declaratory judgment 

action. However, the Attorney General correctly notes in his response brief that 

KRS 418.075 merely requires the Attorney General be served with a copy of a 

petition challenging the constitutionality of a statute or statutes. KRS 418.075(1). 

Though the Attorney General must be notified, he may defend the constitutionality 

of statutes at his option. See Commonwealth v. Hamilton, 411 S.W.3d 741, 751 

(Ky. 2013) (“[T]he Attorney General is not required by law to participate in any 

proceeding of which notice is received regarding a potential constitutional 

challenge.”); see also Commonwealth v. Kentucky Retirement Systems, 396 S.W.3d 

833, 841 (Ky. 2013) (where the Commonwealth’s interest was adequately 

represented through the Retirement Systems’ presence in the lawsuit, the Attorney 

General could decline participation). The circuit court, therefore, did not err in 

granting the Attorney General’s request to be dismissed as a party.

Finally, O’Neal asserts in his brief that KRS 635.020(4) somehow 

violates Article I, Section 9, Clause 3 and Article I, Section 10, Clause 1 of the 

United States Constitution, arguing it is an unconstitutional bill of attainder. He 

did raise this argument in his petition before the circuit court. However, this 
-9-

argument lacks any merit, as KRS 635.020(4) is not an act of the legislature which 

punishes a person or a group of people without trial and conviction. In fact, the 

statute does not prescribe punishment at all, but rather is a procedural statute which 

provides criteria for how juveniles are to be tried; it is not a prescription of 

punishment, but rather a reflection of a legislative preference to try certain 

offenders as adults because of the seriousness of their offenses. The circuit court 

was correct to give this argument no credence.

Because O’Neal was not entitled to relief under any facts he could 

have proven to support his arguments before the circuit court, his petition was 

properly dismissed. We find no error in the Franklin Circuit Court’s order.

CONCLUSION

For the foregoing reasons, we affirm the Franklin Circuit Court’s May 

7, 2021 order dismissing O’Neal’s petition for declaratory judgment.

ALL CONCUR. 

BRIEFS FOR APPELLANT:

Cedric O’Neal, pro se

Beattyville, Kentucky

BRIEF FOR APPELLEES 

COMMONWEALTH OF 

KENTUCKY AND THE 

ATTORNEY GENERAL:

Brett R. Nolan

Frankfort, Kentucky