                                             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




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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.
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      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



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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
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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.




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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




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