Opinion
NO. 2018-CA-001838-MR
03-13-2020
MONTRIAL D. JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Javier L. Esteve Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT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 the
vehicle 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.Johnson v. Commonwealth, 450 S.W.3d 707, 710-11 (Ky. 2014).
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 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's motion 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 trial whose 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 counsel was ineffective for not seeking a new sentencing phase on direct appeal.
Our review of Johnson's arguments is hampered by his failure to provide an adequate account of the relevant portions of the trial proceedings. CR 76.12(4)(c)(iv) requires a brief to contain a statement of the case "consisting of a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal[.]" Johnson's brief does not sufficiently describe what occurred and presupposes complete familiarity with the pertinent issues at trial. Although these inadequacies are not severe enough to warrant striking the brief, see CR 76.12(8)(a), they will necessarily limit the extent of our review.
Johnson also failed to verify his motion as required under RCr 11.42(2). If an RCr 11.42 motion is not properly signed and verified it may be summarily dismissed. Fraser, 59 S.W.3d at 452. The Commonwealth raised this issue for the first time on appeal. It was never considered by the trial court, which addressed Johnson's substantive claims in a lengthy opinion and order. Whereas "[d]efects in subject-matter jurisdiction may be raised by the parties or the court at any time and cannot be waived . . . [and] may be raised for the first time on appeal[,]" Commonwealth v. Groves, 209 S.W.3d 492, 496 (Ky. App. 2006) (citation omitted), particular-case jurisdiction may be waived when it is "not properly presented at the trial court level." Basin Energy Co. v. Howard, 447 S.W.3d 179, 184-85 (Ky. App. 2014). Because the lack of verification was never raised below, the matter was waived.
Johnson argues his trial counsel was ineffective for disclosing to the jury that Johnson was on parole when the offenses were committed. Johnson contends that this revelation was highly prejudicial as evidenced by the Commonwealth's concern that such a disclosure made by the prosecution could result in a mistrial. Defense counsel was acting at Johnson's behest in informing the jury of his parole status. The trial court ruled that the disclosure was a strategy reasonably based on Johnson's own decision to reveal he was on parole. Johnson nonetheless argues that questions remain regarding whether trial counsel consulted fully with his client and discussed the extremely prejudicial nature of revealing parole status and whether Johnson's decision was an informed choice. He contends that these unanswered questions merit an evidentiary hearing.
Johnson's claims are purely speculative. More importantly, he does not explain how the disclosure met the second prong of the Strickland test by depriving him of a fair trial with a reliable result. As the Commonwealth has argued, revealing his parole status worked in Johnson's favor by allowing him to introduce proof that drug testing was part of his supervision and that he had never tested positive for drugs before his arrest; to use an admission to police that he had been living in a halfway house to argue that such an unnecessary admission was not one a drug trafficker would make to the police, and to argue the police claim of smelling marijuana in his vehicle was false. Significantly, Johnson was acquitted of charges of drug trafficking and tampering. Even if, purely for the sake of argument, we assume the disclosure of his parole status was an error, he has failed to show that there is a reasonable probability that, but for the alleged error, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
Johnson also contends that nothing in the record refutes his contention that he was not properly advised or prepared to testify. But he does not explain with any specificity what preparation would have been adequate or how it would have altered his testimony or the outcome of the case. These types of vague and general allegations do not rise to the standard required by RCr 11.42(2). Sanders v. Commonwealth, 89 S.W.3d 380, 390 (Ky. 2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
Next, Johnson alleges that trial counsel was ineffective for having inadequate knowledge of the burglary statute. He contends his counsel should have "challenged" the law and sought to have the burglary charge dismissed due to its "overbroad and ambiguous" language.
On direct appeal, the Kentucky Supreme Court held that the burglary conviction must be reversed because the Commonwealth failed to prove that Johnson intended to commit a crime when he entered the Nelson Avenue home. It explained that the intended crime could not have been fleeing and evading because that crime requires an individual to disregard a direct order from police. Johnson v. Commonwealth, 2013 WL 2297105, at *3. The Court agreed that "[t]he evidence is uncontroverted that Johnson disregarded an order from police when he accelerated his car and sped away[,]" but observed "there is no evidence that Johnson disobeyed any order when he parked the car, got out of his car, and entered Warren's house on foot. Here, the Commonwealth's proof simply fails to implicate Johnson in any crime he could have reasonably intended to commit when he unlawfully entered the house." Id. The Supreme Court also went on to state as follows: "[a]dmittedly, the language of KRS 511.030 is broad, only requiring that an individual intend to commit any crime. Although we recognize the Commonwealth's argument that the burglary conviction should not fail because Johnson could have intended to commit other crimes besides fleeing and evading, we are unable to glean from the evidence presented what those crimes might be. There is no evidence to suggest that Johnson intended anything other than to enter the house and wait out the police pursuit." Id.
The Supreme Court's lengthy analysis of the evidentiary standard required to obtain a burglary conviction shows that this was by no means a clear-cut legal question. As the trial court concluded, "although Johnson may now have the benefit of hindsight to recognize that the evidence on the Burglary charge was insufficient, this Court will not hold Johnson's trial counsel to be at fault for missing complex interplay between different statutes." The trial court also noted that Johnson's trial counsel twice argued for a directed verdict on the burglary charge, thereby preserving the issue for appeal and ultimately reversal. Trial counsel's performance was not deficient in regard to the burglary charge and therefore fails to meet the first prong of the Strickland test.
Johnson also contends that defense counsel allowed the jury to hear highly prejudicial testimony about prior bad acts, providing the following reference to the record: "See generally VR." He also argues that the discussion of parole "opened the door" to testimony from Ms. Warren, the owner of the home on Nelson Avenue, about Johnson's criminal history and evasive efforts. Again, there is no specific reference to the video trial record to enable us to locate this testimony, nor is there any explanation whatsoever of how the testimony was elicited. We decline to review the entire video recording of the trial in order to find any of this unspecified testimony. "It is not the job of the appellate courts to scour the record in support of an appellant['s] argument[.]" Dennis v. Fulkerson, 343 S.W.3d 633, 637 (Ky. App. 2011) (citation omitted).
Next, Johnson argues that his appellate counsel was ineffective for not moving for a new sentencing phase on direct appeal. Our standard of review for failure to raise an issue on direct appeal is set forth in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010):
To succeed on such a claim, the defendant must establish that counsel's performance was deficient, overcoming a strong presumption that appellate counsel's choice of issues to present to the appellate court was a reasonable
exercise of appellate strategy. . . . [O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance be overcome. . . . Finally, the defendant must also establish that he or she was prejudiced by the deficient performance, which . . . requires a showing that absent counsel's deficient performance there is a reasonable probability that the appeal would have succeeded.Hollon v. Commonwealth, 334 S.W.3d 431, 436-37 (Ky. 2010), as modified on denial of reh'g (Apr. 21, 2011) (citations and quotations marks omitted).
Johnson does not succeed in demonstrating with reasonable probability that had his appellate attorney sought and obtained a new penalty phase, the result would have been a lessened sentence. It is unlikely that the jury would have lowered the twenty-year sentence for wanton endangerment, which involved Johnson disregarding the police officer's order to stop and driving away, forcing the officer to jump to safety. Although Johnson discusses the prejudicial impact of the jury hearing testimony regarding burglary, he does not describe the content of this testimony. As the Commonwealth argues, even if the burglary charge had been dismissed before trial, the jury would have heard much the same evidence. The jury imposed the minimum penalty for burglary and the minimum PFO enhancement of the burglary charge and the maximum sentence and enhanced penalty for the wanton endangerment charge, to be run concurrently, which indicates the jury believed the latter to be the graver offense. Johnson has failed to show that, absent the burglary charge, the jury would have viewed the gravity of the wanton endangerment charge differently in recommending a sentence.
Because Johnson's motion failed to raise any material issues which cannot be resolved by reference to the record, the trial court did not err in ruling that a hearing was not required.
For the foregoing reasons, the opinion and order denying the RCr 11.42 motion without an evidentiary hearing is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Javier L. Esteve
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky