CLARKE (WILLIAM DALE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
WILLIAM DALE CLARKE
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 97-CR-00097
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: VANMETER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
WINE, JUDGE: On May 8, 1997, a Hopkins County grand jury indicted William
Dale Clarke on one count each of first-degree burglary and first-degree arson, and
three counts of wanton murder. The charges arose from a fire set by Clarke and a
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
co-defendant on April 1, 2007, which resulted in three deaths. Clarke was
seventeen years old at the time of the offense.
On June 13, 1997, the Commonwealth gave notice that it intended to
seek the death penalty against Clarke. Thereafter, on April 24, 1998, Clarke
accepted the Commonwealth’s offer on a plea of guilty. In exchange for his guilty
plea to the charges, the Commonwealth recommended sentences of twenty years’
imprisonment for the burglary and arson counts, and life imprisonment without
parole for twenty-five years on the murder counts, to run concurrently for a total of
life imprisonment without the possibility of parole for twenty-five years.
Prior to his final sentencing, Clarke moved to withdraw his guilty
plea, but the trial court denied the motion and imposed the recommended sentence.
Clarke appealed from the trial court’s order denying his motion to withdraw the
guilty plea. However, this Court dismissed his appeal as untimely. Clarke v.
Commonwealth, 1998-CA-002219-MR (Ky. App. Dec. 2, 1998).
Thereafter, on August 14, 2000, Clarke filed a motion to set aside his
conviction pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. In that
motion, Clarke asserted that his guilty plea was not knowing and voluntary, and
that he received ineffective assistance from his trial counsel. The trial court denied
the motion on January 11, 2001. Clarke did not appeal from that order.
On February 20, 2006, Clarke filed this current motion requesting a
new sentencing hearing pursuant to Kentucky Rules of Civil Procedure (CR)
60.02(e) and (f). The trial court denied the motion, concluding that Clarke was not
entitled to the requested relief. This appeal followed.
Clarke does not seek to set aside his guilty plea. Rather, he contends
that he is entitled to a new sentencing hearing in light of the recent decision by the
United States Supreme Court in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183,
161 L. Ed. 2d 1 (2005). In Roper, the Supreme Court declared it unconstitutional
under the Eighth Amendment for a state to execute any individual who was under
the age of eighteen at the time of the offense. In justifying the prohibition of the
death penalty on those less than eighteen years of age, the Court pointed to a
juvenile’s lack of maturity, underdeveloped senses of responsibility and judgment,
and susceptibility to peer pressure and negative influences. Id. at 569-72, 125 S.
Ct. at 1195-96. Based on these considerations, the Court concluded that juveniles
lack the culpability necessary to be subject to the death penalty. The Court in
Roper specifically overruled its prior decision in Stanford v. Kentucky, 492 U.S.
361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), which held that individuals who
commit crimes after their sixteenth birthday constitutionally may be subject to the
imposition of the death penalty. In light of Roper, Clarke argues that he is entitled
to a new sentencing hearing at which his age and immaturity can be given proper
This Court has consistently rejected this argument in three recent and
published cases: McStoots v. Commonwealth, 245 S.W.3d 790 (Ky. App. 2007);
Gussler v. Commonwealth, 236 S.W.3d 22 (Ky. App. 2007); and Sims v.
Commonwealth, 233 S.W.3d 731, 733 (Ky. App. 2007).2 Clarke argues that these
opinions were incorrectly decided and should be overruled. We find no basis to
revisit the holdings in these cases.
The holding in Roper was specifically limited to death sentences, not
to all sentencings of juveniles in capital cases. While Roper clearly applies to all
cases in which the death penalty was imposed on an individual who was under the
age of eighteen at the time he committed the offense, the rule does not apply
retroactively to cases in which a juvenile was charged with a capital offense, or
where the death penalty was sought but not imposed. McStoots, 245 S.W.3d at
791. Consequently, we cannot find that Clarke is entitled to a new sentencing
hearing as a matter of law.
In the alternative, Clarke argues that he is entitled to a new sentencing
hearing because the trial court did not properly consider the mitigating effect of his
youth and immaturity at the original sentencing hearing. However, Clarke makes
no claim that his plea was not knowing, voluntary and intelligent at the time it was
made. A voluntary plea made in consideration of the law as it existed at the time
of its entry “does not become vulnerable because later judicial decisions indicate
Multiple panels of this Court have reached the same conclusion in a number of
unpublished opinions. See Kirkland v. Commonwealth, 2007-CA-000100-MR,
2008 WL 2940709 (Ky. App. Aug. 1, 2008); Cheng v. Commonwealth, 2006-CA002619-MR, 2008 WL 1093886, (Ky. App. Apr. 11, 2008); Devers v.
Commonwealth, 2006-CA-002049-MR, 2008 WL 612246, (Ky. App. Mar. 7,
2008); Phon v. Commonwealth, 2006-CA-002456, 2008 WL 612283 (Ky. App.
Mar. 7, 2008); McMillen v. Commonwealth, 2006-CA-001806-MR, 2007 WL
3406851 (Ky. App. Nov. 16, 2007); and Denton v. Commonwealth, 2006-CA000587-MR (Ky. App. Aug. 3, 2007).
that the plea rested on a faulty premise.” Sims, 233 S.W.3d at 733, quoting Brady
v. United States, 397 U.S. 742, 757, 90 S. Ct. 1463, 1473, 25 L. Ed. 2d 747 (1970).
Likewise, Clarke does not argue that he was precluded from raising
his youth as a mitigating circumstance. And even if such mitigating evidence
should have been presented, Clarke had the opportunity to raise the issue in his
prior RCr 11.42 motion. Since Clarke has shown no reason why the issue could
not have been raised in his earlier motion, he is not entitled to raise it at this time.
Finally, Clarke does not point to any specific evidence which would
support a lesser sentence in his case. In the absence of any “reason of an
extraordinary nature justifying relief,” CR 60.02(e), the trial court properly denied
Clarke’s motion for a new sentencing hearing.
Accordingly, the order of the Hopkins Circuit Court denying Clarke’s
motion for a new sentencing hearing pursuant to CR 60.02 is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Timothy G. Arnold
Assistant Public Advocate
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General