Appellant, Dominique Nathaniel Sanford, appeals from a judgment entered by the Fayette Circuit Court pursuant to an unconditional
As grounds for relief Sanford claims that the twenty-year sentence, including twelve years of violent offender time subject to an eighty-five percent parole eligibility requirement, is disproportionate to the charges to which he pled guilty, given his age and prior criminal history, and that, therefore, the sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and Section Seventeen of the Kentucky Constitution.
While Sanford's unconditional guilty plea included a waiver of his right to appeal a lawfully imposed sentence, and the sentence imposed in this case was within the authorized sentencing range, since Sanford filed presentencing motions in support of his argument, and the Commonwealth has not objected to Sanford's challenge to the constitutionality of the sentence either in the trial proceedings or upon appeal, we address the issue on the merits. Upon the merits, we agree with the trial court that the sentence does not rise to the level of cruel and unusual punishment.
During the morning of April 23, 2010, between approximately 2:00 a.m. and 9:30 a.m., Sanford and his accomplice, Jettadia Johnson, committed five armed robberies against a total of nine victims. Not long after the fifth robbery the police spotted them in a vehicle and attempted to pull them over. A chase ensued, which ended when the robbers crashed into several occupied cars. Sanford and Johnson fled on foot. A single handgun was found near the crash scene, though police believed, based upon the statements of victims, that both robbers had a gun during the robberies.
Johnson was eventually identified as one of the occupants of the vehicle and arrested. Johnson confessed and implicated Sanford as his accomplice in the robberies. As a result of the events, Sanford was indicted for nine counts of first-degree robbery; one count of first-degree fleeing or evading; four counts of first-degree wanton endangerment; one count of leaving the scene of an accident/failure to render aid or assistance; failure of a non-owner to maintain required insurance; and one count of no operator's license.
Sanford entered into a plea agreement with the Commonwealth under which he would plead guilty to one count of first-degree robbery in exchange for a twelve-year sentence; and plead guilty to one count of, as amended, second-degree robbery in exchange for an eight-year sentence. Under the agreement the Commonwealth would argue for consecutive sentencing, but Sanford was free to argue for concurrent sentencing; further, the Commonwealth agreed to drop all other charges stated in the indictment.
During the Boykin discussion
Notwithstanding the unconditional nature of Sanford's plea, at the conclusion of the plea hearing, trial counsel informed the court that she was considering filing "presentencing motions," and "depending on the court's ruling, [] might appeal those motions." Trial counsel acknowledged, however, that "we have no issue of appeal on anything that's happened up to this point."
The Commonwealth made no objection to the proposed motions, and did not suggest that this procedure would be in violation of the unconditional guilty plea.
Before the day of sentencing Sanford filed a "Motion for a Sentence of Concurrent Time." The motion argued that "[sentencing Mr. Sanford to consecutive time in these cases would violate his constitutional right to be protected from Cruel and Unusual Punishment under both the VIIIth Amendment of the United States Constitution as well as Section 17 of the Kentucky Constitution." Sanford also filed a "Motion to Declare the Defendant not Subject to Violent Offender Classification Due to his Age." In this motion Sanford requested that the court "declare that he is ineligible to be classified as a violent offender due to his age," and "to declare KRS 439.3401 unconstitutional as applied to him and others twenty-one years of age and younger."
At sentencing, the trial court entered final judgment pursuant to the plea agreement and ordered that the sentences be ran consecutively for a total of twenty years to serve. The trial court overruled Sanford's presentencing motions from the bench, expressly rejecting his constitutional arguments. The court additionally stated in the judgment that "[i]t is further ORDERED BY THE COURT that the Defendant's Motion to Declare KRS 439.3401 unconstitutional is OVERRULED. The Court finds the defendant has been afforded his due process and equal protection rights and there is a legitimate statement of interest in the Statute. Further, the Statute is not arbitrary nor does the sentence amount to cruel and unusual punishment based upon the severity of [the] offense and punishment imposed."
Sanford filed a notice of appeal, wherein he stated "the defendant reserved the right to appeal the decision on any pre-sentencing motions, and also the decision of the Court on the defendant's Motion to Declare KRS 439-3401 unconstitutional," presumably referring to counsel's comments, at the conclusion of the plea hearing, and/or the presentencing motions.
Sanford's sole argument is that his twenty-year sentence is disproportionate to the charges he pled guilty to given his age and prior criminal history, and that the sentence, therefore, amounts to cruel and unusual punishment under the Eighth Amendment and Section Seventeen of the Kentucky Constitution. As previously noted, pursuant to his plea agreement with the Commonwealth, Sanford was sentenced to twelve years for the first-degree robbery conviction (a violent offender offense) and to eight years for the second-degree robbery conviction, with the sentences to run consecutively for a total of twenty years to serve. Moreover, pursuant to the violent offender statute, KRS 439.3401, Sanford will not be eligible for parole until he has served eighty-five percent of the twelve-year first-degree robbery sentence, or 10.2 years.
We begin our discussion by again noting that as grounds for preservation of this issue Sanford states "[t]his issue is preserved for appellate review by [his] `Motion for a sentence of concurrent time' and `Motion to declare the defendant not subject to violent offender due to his age.'" Though not challenged by the Commonwealth, because this is an appeal from an unconditional guilty plea, a type of judgment not normally subject to appeal, it is necessary to initially consider whether the issue raised by Sanford is properly before us.
The general rule is that pleading guilty unconditionally waives all defenses except that the indictment did not charge an offense. Bush v. Commonwealth, 702 S.W.2d 46, 48 (Ky. 1986); Hendrickson v. Commonwealth, 450 S.W.2d 234, 235 (Ky. 1970) ("The effect of a plea of guilty is to waive all defenses except that the indictment charged no offense and to authorize the imposition of the penalty prescribed by law."); Cf. Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007) (sentencing issues may be raised for the first time on appeal because sentencing is jurisdictional).
Nevertheless, RCr 8.09 provides: "With the approval of the court a defendant may enter a conditional plea of guilty, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified trial or pretrial motion. A defendant shall be allowed to withdraw such plea upon prevailing on appeal." We recently clarified when a defendant may appeal from a judgment entered upon a guilty plea in Dickerson v. Commonwealth, 278 S.W.3d 145, 149 (Ky. 2009):
Here, there is no indication that any of the actual plea documents reserved any issue for appeal, and the plea agreement was accepted by the trial court as an unconditional plea.
In Turpin v. Commonwealth, ___S.W.3d___ (Ky. 2011), we noted that the United States Supreme Court has explained that the Eighth Amendment, which provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," prohibits not only barbaric punishments such as torture, but also punishments disproportionate to the crime. Graham v. Florida, 130 S.Ct. 2011 (2010).
Graham, 130 S.Ct. at 2022 (quoting Harmelin, 501 U.S. at 1005); Turpin S.W.3d at.___ (sentence of 20 years imprisonment for possession of a firearm by a convicted felon, as a first-degree persistent felony offender, was not excessive, even though defendant's prior felony convictions were non-violent offenses, and thus did not constitute palpable error).
We have previously observed that "[proportionality review has never (or hardly ever) been used to strike down a mere prison sentence." Hampton v. Commonwealth, 666 S.W.2d 737, 741 (Ky. 1984) citing Rummel v. Estelle, 445 U.S. 263, 271 (1980); see also Riley v. Commonwealth, 120 S.W.3d 622, 633 (Ky. 2003) ("if the punishment is within the maximum prescribed by the statute violated, courts generally will not disturb the sentence."). And so the relief being requested by Sanford — a declaration that a particular term of year sentence is in violation of the Eighth Amendment — is seldom, if ever, available under a cruel and unusual punishment claim.
Upon application of the above principles, here, Sanford's consecutive twelve-year and eight-year sentences, with the possibility of parole after serving eighty-five percent of the twelve year sentence (a little over ten years) is simply not an extreme sentence for convictions for first-degree armed robbery (a Class B felony
Further, this sentence does not begin to approach the upper limits of Kentucky's sentencing structure, nor can it be deemed "grossly disproportionate" as the Supreme Court has employed that term, since according to the Court, even a life sentence for crimes less harmful than Sanford's and posing less risk of violence cannot be characterized as "grossly disproportionate." See Ewing v. California, 538 U.S. 11 (2003) (upholding under recidivist statute a sentence of twenty-five years to life for the theft of three golf clubs priced at $399 apiece); Rummel v. Estelle, 445 U.S. 263 (1980) (upholding under recidivist statute a sentence of life with the possibility of parole for the obtaining of $120.75 by false pretenses).
Sanford also argues that his age at the time of the crimes — he had just turned twenty-one — should bear on our cruel and unusual punishment analysis. While age certainly may be relevant to proportionality review, Roper v. Simmons, 543 U.S. 551, (2005) (holding that the execution of offenders who were under eighteen years of age at time their crimes were committed is prohibited by the Eighth and Fourteenth Amendments of the United States Constitution) and Graham, 130 S.Ct. 2011 (holding that the Eighth Amendment prohibits imposition of a sentence of life without the possibility of parole on a juvenile offender who did not commit a homicide), we reject out of hand that age considerations are relevant to cruel and unusual punishment analysis when, as here, the defendant was over the age of twenty-one when he committed the crimes under review.
As noted above, the United States Constitution "does not require strict proportionality between crime and sentence but rather forbids only extreme sentences that are grossly disproportionate to the crime." Graham, 130 S.Ct. at 2021 (internal quotation marks omitted). As the sentence in this case was neither extreme within our sentencing scheme nor grossly disproportionate for the conduct he pled guilty to, Sanford is not entitled to relief upon his claim that the sentence amounted to cruel and unusual punishment.
For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.
All sitting. All concur.
