BOWLING V. COM.
CRIMINAL: Death penalty (mental age of juvenile)
Appellant, Thomas C . Bowling, appeals from the Fayette Circuit Court’s denial of his motion for relief pursuant to CR 60.02 and CR 60.03. Bowling’s motion claimed that the United States Supreme Court’s recent decision in Roper v. Simmons , 543 U .S. 551, 125 S. Ct. 1183, 161 L. Ed . 2d 1 (2005), and the Eighth Amendment’s proscription against cruel and unusual punishment prohibit the execution of individuals with the’ mental age of a juvenile. Bowling also argued that he was entitled to a new sentencing hearing due to "the increased mitigating value of functioning at the mental level of a juvenile" resulting from Roper’s prohibition of executing juveniles.
Bowling has not cited any published authority prohibiting the death penalty based upon "juvenile mental age." Nor has Bowling demonstrated a national consensus that mental age should be a criterion by which to exclude the death penalty. Without question, the Supreme Court has been presented with and has considered the concept of mental age. Thus, Roper v. Simmons only prohibits the execution of those offenders whose chronological age was below eighteen at the time of the commission of the offense. See also Hill v. State , 921 So. 2d 579, 584 (Fla . 2006) .
Bowling’s claim that execution is prohibited because he functions at the level of an eleven-year-old child could have been asserted at trial, in his RCr 11.42 motion, or his prior CR 60 .02 motion . In other words, as it would have applied to his claim, Roper v. Simmons created no greater protection than he could have asserted under the statute. For this reason, the same rationale espoused in Bowling v. Commonwealth that supported a finding that Bowling procedurally defaulted his mental retardation claim applies with equal force to support a finding that his current claim, even if viable, would have been procedurally defaulted as well . Id . at 371-72.
Michael Stevens, ed.