Johnson v. Commonwealth
| Decision Date | 18 December 2014 |
| Docket Number | 2013–SC–000665–MR |
| Parties | Montrial Demetrius Johnson, Appellant v. Commonwealth of Kentucky, Appellee |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR APPELLANT: V. Gene Lewter, Department of Public Advocacy, 100 Fair Oaks Lane, Suite 302, Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE: Jack Conway, Attorney General, Jeffrey Allan Cross, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, 1024 Capital Center Drive, Frankfort, Kentucky 40601
The Appellant, Montrial Demetrius Johnson, was previously convicted of three felony offenses and given concurrent sentences. This Court reversed one of his convictions, having concluded he was entitled to a directed verdict of acquittal, and affirmed the remaining convictions and sentences. On remand, he sought a new jury penalty phase on the affirmed convictions, arguing that the original jury heard sentencing evidence related to the reversed offense that it would not otherwise have heard, which he claims affected sentencing on those convictions. The trial court denied his motion and sentenced him to 20 years in prison, in conformity with the original sentence on the remaining convictions.
This Court concludes that Johnson was not entitled to a new penalty phase on the affirmed convictions because the trial court was bound by this Court's mandate on remand. Moreover, the effect of the reversed conviction on the sentences for the other convictions was never raised in the original appeal, though it could have been. But Johnson was required to raise this issue in the original appeal and is barred from raising it in a subsequent appeal. This appeal is therefore dismissed.
In 2011, Johnson was convicted of first-degree wanton endangerment, first-degree fleeing or evading police, and second-degree burglary. The jury also found that Johnson was a first-degree persistent felony offender (PFO 1). As a result, the jury was instructed to sentence Johnson to a PFO-enhanced 10 to 20 years for each of the convictions and to decide whether to run the sentences consecutively or concurrently. The jury returned enhanced sentences of 20 years for the wanton-endangerment conviction, 10 years for the fleeing-or-evading conviction, and 10 years for the burglary conviction, all to run concurrently for a total of 20 years. The trial court sentenced Johnson accordingly.
He appealed to this Court, arguing that he should have been granted a directed verdict on the burglary charge, that the trial court gave improper jury instructions on the burglary charge, and that the prosecutor made improper comments in closing argument. This Court concluded that Johnson was entitled to a directed verdict of acquittal on the burglary charge. As a result, the Court “reverse[d] Johnson's second-degree burglary conviction and remand[ed] to the trial court for the entry of a directed verdict of acquittal on the burglary charge.” Johnson v. Commonwealth, 2011–SC–000491–MR, 2013 WL 2297105, at *1 (unpublished opinion). This Court also held that the prosecutor's comments were not improper, and thus the other convictions were affirmed. The opinion's conclusion stated:
[W]e reverse Johnson's second-degree burglary conviction and the sentence imposed for that conviction. We affirm all other convictions and sentences. We remand the case to the trial court for entry of a new judgment consistent with this opinion.
On remand, Johnson moved the trial court for a new penalty phase on the affirmed convictions. He argued that the now-reversed burglary conviction and evidence of the special penalty provision in KRS 532.080(7) —barring probation and requiring service of at least 10 years in prison when a Class C felony (like second-degree burglary) is PFO 1 enhanced—necessarily tainted the jury's consideration of sentencing for the other offenses, which were not Class C felonies. The trial court denied the motion. Instead, the court ordered a new presentence investigation report and conducted a new sentencing at which it considered probation because the remaining convictions were probation eligible. Nevertheless, the court rejected probation and sentenced Johnson to the 20 years originally recommended by the jury.
Johnson again appeals to this Court, claiming to do so as a matter of right.
Johnson argues, as he did below, that he was entitled to a whole new penalty phase. He notes that the jury was allowed to hear evidence related to parole eligibility and minimum time to be served that applied only to the burglary charge, which this Court held should not have gone to the jury.1 The Commonwealth, however, argues that Johnson was barred from seeking a new penalty phase because this Court affirmed the sentences for the other convictions and Johnson failed to raise the effect of the reversal of his burglary conviction on those sentences in a petition for rehearing.
This Court does not reach the merits of Johnson's claim because it agrees that Johnson was barred from seeking amendment of his sentence from the trial court for two reasons. First, the trial court was bound by this Court's mandate affirming the 20–year sentence, and any objection to this Court's decision was properly raised only in this Court. Second, even if this Court had not specifically affirmed the sentences, Johnson was not entitled to raise issues on remand that could have been raised in the initial appeal, which included the effect of a possible reversal of the burglary conviction.
This Court's mandate specifically stated that the burglary conviction and sentence were reversed but that the non-burglary convictions and sentences were affirmed. The opinion also ordered the trial court to enter a new judgment consistent with this conclusion.
The trial court had no power to affect this Court's mandate and was instead bound by it. As this Court has stated quite strongly: Williamson v. Commonwealth, 767 S.W.2d 323, 325 (Ky.1989).
Thus, Johnson's motion “in the trial court [wa]s futile.” Id. And the motion for a new penalty phase and the present appeal are “nothing more than an attempt to relitigate an issue previously decided.” Id. Given the mandate of this Court, which included affirming the other convictions and sentences, the trial court was bound to enter a new judgment reflecting the original sentence for those charges, namely, a 20–year sentence.
If Johnson was dissatisfied with this outcome, then he was at the very least required to seek relief from this Court, and no other. Id. at 326.
Johnson had 20 days from the issuance of this Court's opinion in his appeal to file a petition for rehearing. CR 76.32(2). He filed no such petition. Therefore, he and the trial court to whom the decision was directed were bound by this Court's decision in full. And the trial court properly followed this Court's mandate, albeit with some deviation not directly raised in this case,2 over Johnson's objection by entering a new judgment reflecting the 20–year sentence.
Johnson attempts to avoid the effect of this Court's mandate by claiming that the affirmance of the sentences for the wanton-endangerment and fleeing-or-evading convictions was “merely dicta.” He notes that he originally alleged errors affecting all his convictions, but that this Court disagreed as to the non-burglary convictions and, as a result, affirmed those convictions. He then claims, however, that it was unnecessary for this Court to add to its conclusion that it affirmed the other sentences because “those words added nothing to the judgment.” To the extent that Johnson's originally alleged errors touched only on his convictions, and not directly on his sentences, he is technically correct that this Court's opinion did not resolve any claims of sentencing error that he raised (because he raised none).
But that does not mean this Court's affirmation of the sentences was “merely dicta.” Johnson's challenge to his convictions was necessarily an indirect challenge to his sentences. If he had succeeded in having the other convictions set aside, their related sentences would also have been set aside.
More importantly, however, this Court does not have to decide the precise scope of holding versus dictum here because Johnson's argument raises to the surface yet another reason he was barred from challenging his sentence on remand: he never challenged the effect of the burglary information on his other sentences in the original appeal.
Given how often denials of directed-verdict motions are raised on appeal, and how frequently appellants have won those arguments, it is surprising to note that the effect of evidence of an improper conviction in arriving at the sentences on other proper convictions has not been addressed in our appellate decisions on direct appeals. This appears to be a case of first impression on this issue.
Johnson was entitled to only one direct appeal and was required to raise all challenges to the trial court's judgment that could be raised in that appeal.3 Any issues not raised in that appeal are waived.
As this Court recently noted, a criminal defendant “is entitled to only one appeal as a matter of right.” St. Clair v. Commonwealth, 2014 WL 4113014, at *5 (Ky. Aug. 21, 2014). The implications of this legal fact are important because the “rules governing review of a trial court's final judgment in a criminal...
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