         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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                                                            RENDERED : MARCH 20, 2008
                                                                NOT TO BE PUBLISHED

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                                    2007-SC-000286-MR
                                                               13ACT             s.             % .C.,




TIMOTHY D. MORMAN                                                              APPELLANT


                    ON APPEAL FROM JOHNSON CIRCUIT COURT
V.                  HONORABLE JOHN DAVID PRESTON, JUDGE
                                NO. 04-CR-00160


COMMONWEALTH OF KENTUCKY                                                        APPELLEE




                       MEMORANDUM OPINION OF THE COURT

                             REVERSING AND REMANDING

       Timothy Dwayne Morman appeals from a circuit court judgment resentencing him

to forty years' imprisonment . Citing our opinion in his earlier appeal in which we held

that the maximum sentence was twenty years under KRS 532.110(1)(c), Morman

argues that the law of the case doctrine prohibited the trial court from ignoring our

holding. We agree with Morman . We reverse and remand with directions to conduct re-

sentencing in accordance with the law of the case as reflected in our opinion in the

earlier appeal.

       We might have reached a different conclusion in the first appeal had the

Commonwealth's Attorney disclosed Morman's parolee status or argued the issue of

Morman's parolee status in the trial court or even in this Court . It is regrettable that the
 trial court is now constrained from sentencing Morman to what would otherwise be a

 proper sentence of up to forty years' imprisonment under KRS 533.060(2). But we

 cannot allow the Commonwealth to relitigate the issue of maximum allowable

 punishment because the prosecution failed to include all relevant sentencing

information to the trial court the first time around ; and, as appellee, it failed to file a

petition for rehearing or modification of our first opinion .


                                I. FACTUAL BACKGROUND .

       This Court affirmed Morman's convictions on two counts of second-degree rape

and two counts of second-degree sodomy in the earlier appeal, rejecting his arguments

that the trial court erroneously refused to allow him to withdraw his guilty plea and that

he had received ineffective assistance of counsel .' We vacated Morman's original forty-

year sentence in the first appeal, finding that the maximum allowable sentence was

twenty years' imprisonment under KRS 532.110(1)(c) and KRS 532.080(6)(b) . We

remanded Morman's case to the trial court for resentencing "in accordance with the

limitations imposed by KRS 532 .110(1)(c) ,Q and "consistent with this opinion ." The

Commonwealth did not petition this court for rehearing or modification .




   Case No. 2005-SC-000957-MR, 2007 WL 541925 (Ky. Feb. 22, 2007) .
   In so doing, we accepted the arguments made in Morman's supplemental brief regarding his
   maximum sentence under these statutes. The Commonwealth neither conceded nor refuted
   this argument in its supplemental brief but simply asked us to consider the appropriateness
   of his sentence in light of the record and applicable law. Neither party argued
   KRS 533.060(2) to this Court, and nothing in the record presented to us indicated Morman's
   parole status at the time the offenses were committed . Since nothing in the trial record
   indicated Morman's parole status, we cannot fault the Attorney General (who prepares
   appellate briefs for the Commonwealth) for not claiming on the initial appeal that
   KRS 533.060(2) mandated consecutive sentencing .
        The trial court then set the case for a resentencing hearing . Before the re-

sentencing hearing, the Commonwealth's Attorney presented the trial court with a

document indicating that Morman was on parole when he committed the offenses

charged in the underlying indictment.3 The Commonwealth's Attorney argued at re

sentencing that KRS 533 .060(2) (mandating consecutive sentences for offenses

committed while on parole) trumped KRS 532.110(1)(c) (establishing maximum

sentences for multiple convictions) . The parties did not argue the applicability of

KRS 533.060(2) in the initial appeal, and we have found no indication in the record that

this issue was explicitly presented to the trial court on initial sentencing. Based on

Morman's newly-mentioned status as a parolee, the trial court resentenced Morman to a

term of forty years' imprisonment under KRS 533.060(2) . The parties now dispute

whether the law of the case doctrine now requires that Morman be resentenced to a

maximum of twenty years' imprisonment. Morman also argues in the alternative that his

guilty plea was rendered involuntary by the failure of the trial court or the attorneys to

raise KRS 533.060(2) before he pled guilty . Because we reverse based on the law of

the case doctrine, it is not necessary to reach the issue of whether any failure to inform

Morman of the effect of KRS 533.060(2) rendered his guilty plea involuntary .




   The document was apparently faxed. But Morman has not disputed the authenticity of the
   document, nor has he claimed that he was not actually on parole when the offenses in
   question were committed .
   Even the Pre-Sentence Investigation Report (PSI) prepared for initial sentencing failed to
   state that Morman was on parole; and the trial court considered, but rejected, probation at
   the initial sentencing-which presumably it would not have done had it been aware of
   Morman's parolee status under KRS 533 .060(2) .
                                       II. ANALYSIS .

               Our Opinion Holding Maximum Allowable Punishment to be
                Twenty Years' Imprisonment is Now the Law of the Case.

       We find nothing in the record preceding the initial judgment sentencing Morman

to forty years that mentions his parolee status or the applicability of KRS 533.060 . We

further note that the Commonwealth did not argue the applicability of KRS 533 .060(2)

on the first appeal, nor did it ask for a rehearing or modification of this Court's opinion

on initial appeal when we failed to note KRS 533.0602) on our own motion.

       Because we were not provided with any facts to indicate that Morman was on

parole when the offenses at issue occurred, we correctly determined on the first appeal

that the maximum sentence would be twenty years' imprisonment under

KRS 532.110(1)(c) based upon the facts and record then presented to us. We were

not presented with, nor did we decide, the issue of applicability of KRS 533.060(2) in the

first appeal. But we were presented with and decided the ultimate issue of whether the

forty-year sentence of imprisonment imposed by the trial court was proper. We decided

that it was not and, furthermore, that the maximum sentence was twenty years .

Because the Commonwealth did not file a petition for rehearing or modification of our

opinion on the first appeal, it is bound by our determination that a forty-year sentence

was impermissible and that the maximum sentence was twenty years . Of the

importance of the petition for rehearing or modification, we have said:

             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 .

            It necessarily follows, therefore, that if a party is aggrieved by an
      adverse appellate determination, his remedy is in an appellate court at the
       time the adverse decision is rendered . This is so because an objection in
       the trial court is futile and an appeal from the trial court's implementation of
       the appellate determination is nothing more than an attempt to relitigate an
       issue previously decided .

       So the trial court erred on remand by allowing the Commonwealth to relitigate the

issue of the proper range of punishment and by imposing the same forty-year sentence

that we held to be improper .

       The instant case is distinguishable from the recent Court of Appeals case of

Hutson v. Commonwealth, in which the Court of Appeals held that the law of the case

doctrine did not prevent the trial court from correcting its record under a properly filed

Kentucky Rules of Civil Procedure (CR) 60.01 motion to reflect that the appellant had, in

fact, been arraigned-contrary to the Court of Appeals' opinion in appellant's first

appeal.' In that earlier appeal, the Court of Appeals found no indication on the record

that Hutson had been arraigned on a Persistent Felony Offender (PFO) charge ; and it

reversed Hutson's conviction on the PFO charge because of the lack of an

arraignment . $ Upon remand, "the Commonwealth found a videotape of Hutson's

arraignment and not guilty plea on the PFO count" and filed a CR 60.01 motion to

correct this clerical error.9 The trial court then entered an order noting the arraignment

of record; and it issued an amended judgment convicting Hutson of the PFO charge and

the underlying offense, "which differed from the original judgment and sentence only in



   Williamson v. Commonwealth, 767 S.W .2d 323, 325 (Ky. 1989) (citations omitted) .
   215 S.W.3d 708 (Ky.App. 2006).
   Id. a t 715-16.
   Id. at 711-12, citing first appeal, Hutson v. Commonwealth , 171 S .W.3d 743 (Ky.App . 2005).
   Hutson's first appeal is referred to as Hutson I in other portions of this opinion .
   Hutson , 215 S.W.3d at 712.
     that it included the date of the arraignment . . . as shown on the videotape ."' ° The Court

     of Appeals affirmed, stating that the law of the case doctrine demanded obedience only

     to the legal conclusions of appellate courts . The doctrine did not prevent the trial court

     from correcting its factual record when presented with a proper motion. The Court of

     Appeals further explained the significance of the distinction between a factual correction

     and a legal conclusion, stating that

             This court in Hutson I answered in the affirmative the legal question
             whether an arraignment and taking of a plea are necessary to a valid
             conviction. It remains the law of this case . It would be applicable here if
             the facts were still that Hutson had not been arraigned . However, he was.
             Hutson's desire to stretch the law of the case doctrine to also make the
             facts of the case immutable might well reduce the workload of this court,
             but it would fail to serve the ends of justice . In a proper case the doctrines
             of estoppel or issue preclusion might require that the facts remain static on
             remand, but the law of the case doctrine will not make them so. The
             doctrine is simply inapplicable here and Hutson's argument necessarily
             fails.' 1

             In the first appeal in the instant case, however, this Court answered in the

 negative the legal question of whether the forty-year sentence of imprisonment imposed

 by the trial court was proper in light of the factual record before the trial court . We were

 not presented with any fact in the record concerning Morman's parolee status ; and we

did not, therefore, address the legal effect of any such fact . In contrast, the Court of

Appeals in Hutson I was presented with a record indicating lack of arraignment on the

PFO charge and indicating that the legal effect of this fact was that the PFO conviction

could not stand without an arraignment on that charge . We did not, however, determine

that the forty-year sentence could stand only if Morman was on parole at the time of the

offenses so that KRS 533.060(2) applied . Rather, we stated unequivocally that the

10
       /d.
11
       Id. at 715 .
 forty-year sentence imposed by the trial court was improper and that the maximum

allowable sentence on the convictions received was twenty years . Whether or not we

might have arrived at a different conclusion had we been presented with a record of

Morman's parolee status the first time around, our holding that the maximum sentence

was twenty years was the law of the case.

        The Commonwealth's Attorney made no effort on remand to show that relief

under CR 60 .01 or CR 60.02 was appropriate . Rather, the Commonwealth simply

urged the trial court to ignore our holding based on evidence it should have but did not

present the first time--Morman's parolee status. Although it is understandable that the

trial court desired to sentence Morman in accordance with the law applicable to parolee

status, the simple fact is that the trial court erred in allowing the Commonwealth to re-

litigate the previously decided issue of what Morman's maximum sentence should be .

        We must reverse and remand with directions that the sentence on remand may

not exceed twenty years' imprisonment according to the law of the case as established

in our first opinion .


                                   111. CONCLUSION .

        For the foregoing reasons, the circuit court's judgment resentencing Morman to a

term of forty years' imprisonment is hereby reversed . The case is remanded for re-

sentencing proceedings with the direction that Morman not be resentenced in excess of

the twenty-year maximum sentence of imprisonment established in our first opinion .

       All sitting . All concur.
COUNSEL FOR APPELLANT :

Donna L. Boyce
Department of Public Advocacy
100 Fair Oaks Lane - Suite 302
Frankfort, KY 40601


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

William Robert Long, Jr.
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
