APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 10-CR-01014
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES.
CLAYTON, CHIEF JUDGE: Montrial Demetrius Johnson appeals from a Fayette Circuit Court opinion and order denying his post-conviction motion made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Johnson raises claims of ineffective trial and appellate counsel and contends that he was entitled to an evidentiary hearing. We affirm.
The underlying facts in Johnson's case were set forth by the Kentucky Supreme Court on direct appeal:
Police were dispatched to deal with a complaint of excessive noise emanating from an outdoor gambling activity. Upon arrival at the scene, the police, four in total, focused their attention on a car parked in an adjacent lot in which Johnson was sitting on the driver's side listening to music. Two of the police, Officers Terry and Doane, approached Johnson's vehicle because the music blaring from its speakers exceeded the noise ordinance's allowable level.
Officer Terry approached the driver's side of Johnson's vehicle while Officer Doane approached the passenger's side. Officer Doane testified that he immediately smelled the strong odor of burnt marijuana as Officer Terry was reviewing Johnson's driver's license and registration. Officer Doane pulled Officer Terry aside and informed him of the odor. In returning Johnson's driver's license and registration, Officer Terry reached through the passenger-side window; and he, too, smelled burnt marijuana.
Officer Terry then asked Johnson if there was anything illegal inside the car, to which Johnson replied in the negative. Officer Terry then walked to the driver-side door, opened it, and asked Johnson to step outside the vehicle. Johnson refused, instead starting the car's engine and gripping the steering wheel. At this point, Officer Terry wedged himself in the open vehicle door, placed his right hand on the steering wheel, and set his right foot up on the doorsill. Again, Officer Terry asked Johnson to exit the vehicle but Johnson again refused. Johnson shifted the car into drive and quickly accelerated, forcing Officer Terry to jump to safety.
Johnson's vehicle fishtailed out of the parking lot and sped away. Officer Terry radioed a description of thevehicle and gave chase on his bicycle. Officers spotted Johnson's empty vehicle a short time later parked in front of the house at 340 Nelson Avenue. The officers received information that a stranger was inside that house, so the officers decided to sweep the house using a canine unit. When the officers entered the house, they immediately found Johnson and arrested him.
Johnson v. Commonwealth, 2011-SC-000491-MR, 2013 WL 2297105, at *1-2 (Ky. May 23, 2013).
Based on these facts, a jury convicted Johnson of the following offenses: one count of first-degree wanton endangerment, one count of first-degree fleeing or evading police, one count of second-degree burglary, violating the city noise ordinance, and of being a first-degree persistent felony offender (PFO 1). The jury recommended a sentence of five years for each felony to be run concurrently. The PFO conviction had the effect of enhancing the wanton endangerment sentence to twenty years, the fleeing or evading sentence to ten years, and the burglary sentence to twenty years. The jury recommended that these enhanced sentences be run concurrently for a total sentence of twenty years and the trial court sentenced Johnson in accordance with the jury's recommendation.
On direct appeal, the Kentucky Supreme Court reversed the burglary conviction, holding there was insufficient evidence that Johnson intended to commit a crime when he entered the house on Nelson Avenue. Id. at *4. The Court rejected Johnson's other arguments, stating "we 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." Id. at *5.
When the case was remanded, Johnson moved for a new sentencing phase. The trial court denied the motion in an order entered on August 13, 2013. On September 9, 2013, it entered a final judgment imposing a sentence of twenty years: five years on each of the remaining felony convictions, to run concurrently and enhanced to a total of twenty years by the PFO conviction.
Johnson filed a direct appeal from the order denying his motion for new jury sentencing. The Kentucky Supreme Court dismissed the appeal on the grounds that the trial court acted correctly as it was bound by the mandate of the Court's previous opinion:
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: "It is fundamental that when an issue is finally determined by an appellate court, the trial court must comply with such determination. The court to which the case is remanded is without power to entertain objections or make modifications in the appellate court decision." 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. "Upon receipt of an appellate court opinion, a party must determine whether he objects to any part of it and if he does, petition for rehearing or modification or move for discretionary review. Upon failure to take such procedural steps, a party will thereafter be bound by the entire opinion." 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 [Kentucky Rules of Civil Procedure] 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.
Johnson v. Commonwealth, 450 S.W.3d 707, 710-11 (Ky. 2014).
Johnson thereafter filed the RCr 11.42 motion which is the subject of the present appeal. Johnson raised numerous claims of ineffective assistance of trial counsel and appellate counsel. The trial court denied the motion without a hearing and this appeal followed.
As a preliminary matter, the Commonwealth contends that Johnson's RCr 11.42 motion was untimely. The Rule requires the motion to be filed within three years "after the judgment becomes final[.]" RCr 11.42(10). Johnson'smotion was filed on December 5, 2017. The Commonwealth argues that the three-year period began running in 2013, following the entry and finality of the opinion in his first appeal, not in 2014, when his post-remand appeal was dismissed. It contends that Johnson's post-remand appeal was a "nonstarter" that was dismissed by the Kentucky Supreme Court and therefore cannot be used to extend the three-year limitations period. Although the appeal was ultimately deemed to be without merit, as a general principle a defendant may legitimately appeal a trial court's interpretation of an appellate mandate. See, e.g., Hutson v. Commonwealth, 215 S.W.3d 708, 714 (Ky. App. 2006) (challenging the trial court's action on remand as not consistent with the appellate mandate). Consequently, Johnson's RCr 11.42 motion was timely because it was filed within three years of the dismissal of his second appeal.
To succeed on a claim of ineffective assistance of counsel, a movant must fulfill two requirements: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). "Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trialwhose result is reliable." Id. "A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance." Commonwealth v. York, 215 S.W.3d 44, 48 (Ky. 2007) (quoting Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). An evidentiary hearing is required only "if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (citations omitted).
Johnson alleges that his trial counsel was ineffective for disclosing to the jury that Johnson was on parole at the time he committed the offenses; for possessing deficient knowledge of the law of burglary and for not moving to dismiss the burglary charge; and for inadequately preparing Johnson to testify. He contends the trial court erred in failing to hold an evidentiary hearing because his claims cannot be resolved by reference to the record. He also contends his appellate...
