Released for Publication January 8, 2015.
ON APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE THOMAS L. CLARK, JUDGE. NO. 10-CR-01014.
FOR APPELLANT: V. Gene Lewter, Department of Public Advocacy, Frankfort, Kentucky.
FOR APPELLEE: Jack Conway, Attorney General; Jeffrey Allan Cross, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, Kentucky.
OPINION OF THE COURT BY JUSTICE NOBLE. All sitting. All concur.
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 (Ky. May 23, 2013) (unpublished opinion). This Court also held that
the prosecutor's comments were not improper, and thus the other convictions were affirmed. The ...