RENDERED: DECEMBER 18, 2014 PU LISHED
$uprrtur (Court of 2013-SC-000665-MR
MONTRIAL DEMETRIUS JOHNSON DAT E1-4S-t'S APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE THOMAS L. CLARK, JUDGE NO. 10-CR-01014
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
DISMISSING APPEAL
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.
I. Background
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 (Ky. May 23, 2013) (unpublished opinion). This Court also 2 held that the prosecutor's comments were not improper, and thus the other
convictions were affirmed. The opinion's conclusion stated:
[Wie 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.
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.
II. Analysis
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
3 burglary charge, which this Court held should not have gone to the jury.' 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.
1 Johnson's argument is that because he was entitled to a directed verdict on the burglary charge, the jury was improperly allowed to hear about the effect of KRS 532.080(7), which states that a first-degree persistent felony offender shall not be eligible for probation unless all offenses are Class D felonies and must serve at least 10 years if convicted of a Class C or higher felony. Information about the effect of this statute was admitted because second-degree burglary is a Class C felony. Thus, the jury heard that Johnson would not be eligible for probation and would have to serve at least 10 years in prison based on that conviction, rather than becoming parole eligible after serving 20 percent. He claims that the jury's consideration of this evidence necessarily tainted its consideration of the sentences for the other two charges. 4 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 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
5 Court's mandate, albeit with some deviation not directly raised in this case, 2
overJhns'bjctiyerngawjudmteflcingh20-yar
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.
2 As noted above, the trial court ordered a new presentence investigation report
and considered granting probation on remand. The reasoning laid out above would bar these actions, just as it barred a new penalty phase. Though that issue is not raised in the case before us, the trial court was bound by this Court's mandate in all respects and could not properly consider probation on remand. The defendant should have included in his appellate issues a request that upon reversal of the charge rendering him ineligible for probation, the matter be remanded for further proceedings where probation can be considered and a new judgment entered. Having failed to do so, he was not entitled to such consideration on remand. 6 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
Anyisueotradhplewaivd.
As this Court recently noted, a criminal defendant "is entitled to only one
appeal as a matter of right." St. Clair v. Commonwealth, S.W.3d
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 case are meant to be organized and complete," and
"collectively create a structure that provides for wide-ranging opportunities for
a defendant to challenge in all respects the legality and fairness of his
conviction and sentence." Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky.
3 He was not required, for example, to raise claims of ineffective assistance of counsel in his direct appeal. See Leonard v. Commonwealth, 279 S.W.3d 151, 159 n. 3 (Ky. 2009). 7 2010) (citation and quotation marks omitted). "At each stage in this structure
the defendant is required to raise all issues then amenable to review, and
generally issues that either were or could have been raised at one stage will not
be entertained at any later stage." Id.; see also Hampton v. Commonwealth, 133
. S.W.3d 438, 444 (Ky. 2004) ("Generally, a litigant may not raise on a
subsequent appeal any question that could have been raised as well as those
that were raised upon a former appeal.").
Any issue that could have been raised but was not is treated as waived.
See Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010). This is an
"extension of the core law-of-the-case doctrine." Id. Although this rule normally
bars an appellate court from reviewing issues that "could have been but were
not challenged in a prior appeal," id., it must also apply to bar the trial court
from considering issues on remand that could have been but were not raised in
the appeal.
Johnson was thus required to raise the potential effect of a reversal of his
burglary conviction, which was the only conviction he challenged as lacking
evidentiary sufficiency, on his other convictions and sentences in his first
appeal. Failure to do so waived any complaint about the effect of the reversed
conviction.
An argument could be made that this issue could not have been raised in
the original appeal, whether because it was not a viable issue until this Court's
reversal of the burglary conviction or because such an issue is simply too
difficult to foresee. This argument must fail, however. Our appellate structure,
and concomitant rules requiring issues to be raised where appropriate, are "an 8 attempt to balance society's and the defendant's interest in just and accurate
criminal convictions with society's and the court's interest in the ultimate
finality of judgments." Hollon, 334 S.W.3d at 437.
Finality requires that Johnson not be allowed to raise now (or on
remand) issues that could have been raised in the original appeal. To hold
otherwise would allow a new appeal every time a case is remanded for entry of
a judgment in conformity with the appellate court's mandate. Such an appeal
is proper only when the appellate court orders the trial court to make a
decision on an issue (e.g., to consider an issue not previously addressed).
Johnson's counsel, who also represented him in the original appeal, was
clearly capable of anticipating the effect of this Court's reversal of the burglary
conviction because it was the natural consequence of prevailing on his
appellate argument, and because he raised the issue before this Court's
mandate could be carried out. He simply raised the issue too late and to the
wrong court.
Although the effect of a reversal of the burglary conviction depended on
this Court first reversing the conviction, any issue related to that reversal
should have been included in the initial appeal. Alternative claims of relief are
allowed, and if they are not brought together with the initial claim, they are
treated as waived. This reasoning applies to conditional issues, i.e., those that
depend on how the appellate court handles some of the issues in the case, like
the effect of reversing the burglary conviction on the other affirmed convictions
in this case. If they are not raised, they are waived. This notion of waiver runs throughout the law. See, e.g., Lee v. George,
369 S.W.3d 29, 35-36 (Ky. 2012) (declining to extend writ to address order not
included in the request for relief); Allen v. Commonwealth, 286 S.W.3d.221,
225-26 (Ky. 2009) (holding that failure to request specific relief after objection
waives preservation of issue for appeal); Derossett v. Commonwealth, 867
S.W.2d 195, 198 (Ky. 1993) (holding failure to request further relief after court
sustained objection to bar relief). Indeed, the standard rule is that this Court
will decline to address sua sponte issues not raised by the parties on appeal.
See, e.g., Lane v. Lane, 202 S.W.3d 577, 581 (Ky. 2006) (declining to address
issue not raised in the brief).
That unraised issues are treated as waived is also why a petition for
rehearing would have likely been insufficient in this case, even though that is
the ordinary route for a party to challenge a portion of one of this Court's
opinions. The rehearing rule itself specifically limits a petition for rehearing "to
a consideration of the issues argued on the appeal," CR 76.32(b), "[e]xcept in
extraordinary cases when justice demands it," id. As a result, error raised for
the first time in a petition for rehearing will not be considered. See Reed v.
Reed, 457 S.W.2d 4 (Ky. 1969); Commonwealth, Dept. of Highways v. Thomas,
427 S.W.2d 213, 217 (Ky. 1967); Herrick v. Wills, 333 S.W.2d 275, 276 (Ky.
1959). Thus, even if Johnson had raised this issue in a petition for rehearing,
his failure to raise it in the original briefs would have amounted to a waiver.
This is not to say that lawyers must anticipate every possible
permutation of an appellate court's decision, especially in very complex cases
presenting many issues. But lawyers are required to reasonably anticipate the 10 effect of a court's decision, or a partial decision in a party's favor, and address
in their briefs issues that would arise from such a decision.
It may, of course, be the case that an issue is not foreseeable. In such a
rare instance, a petition for rehearing may be the appropriate avenue for
seeking relief. This sometimes occurs when there is a change in the law during
the pendency of a case, or when the Court itself raises legal questions that
were overlooked but are essential to a decision. But the effect of this Court's
finding that a directed verdict was required for the burglary conviction while
affirming the other convictions and sentences was a reasonably foreseeable
issue. If it was not a viable argument capable of being approved, then counsel
would not have raised it. And no one is in a better position to understand the
effect of winning an argument than the person who makes the argument.
A lawyer should always ask herself: What happens if I win (or lose)? Part
of understanding an argument is understanding the effect of winning the
argument. Here, Johnson claims that having won his appeal of the denial of his
directed-verdict motion, his other sentences are tainted because of evidence
presented on the charge for which he was entitled to the directed verdict.
Clearly, at the time Johnson argued on appeal that he was entitled to a
directed verdict on the burglary charge, he had to have known how the
evidence relating to that charge could have affected the jury's decision in the
penalty phase. If he wanted relief on appeal, he had to ask for it as a
consequence of winning on that issue in his direct appeal.
Finally, it is necessary to note that because Johnson was entitled to only
one appeal, any subsequent appeal of the original sentence, such as this one, 11 is improper. As discussed above, Johnson waived any issue not raised on the
original appeal, and the trial court was bound by this Court's mandate. The
trial court in fact entered a judgment conforming to this Court's mandate. That
action was not appealable. Johnson's attempt to inject the issue of a new
penalty phase into his case upon remand does not entitle him to an appeal of
the trial court's decision denying his motion for a new penalty phase, as that
motion was improper from the beginning.
This reasoning affects this Court's disposition of this case. While the
discussion above would require, at the very least, the affirmance of the trial
court's final judgment, that Johnson has already had his one appeal requires
that this appeal be dismissed. This Court's opinion required no further
proceedings (such as a retrial, a hearing, or a resentencing at which probation
was to be considered) that might have allowed a new issue to be injected into
this case and that would justify a further appeal. Rather, this Court reversed
one conviction and affirmed the others (and their sentences). Johnson would
have been entitled to relief (albeit by writ) only if the trial court had not followed
this Court's mandate on remand. Thus, his appeal, like his motion to the trial
court, was improper.
III. Conclusion
For the foregoing reasons, this appeal is dismissed.
All sitting. All concur.
12 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