Quintez Johnson v. Commonwealth of Kentucky

RENDERED: JULY 16, 2021; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2020-CA-0599-MR

QUINTEZ JOHNSON APPELLANT

APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 18-CR-01170
v.

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

** ** ** ** **

BEFORE: JONES, MAZE, AND L. THOMPSON, JUDGES.

MAZE, JUDGE: Appellant, Quintez Johnson, appeals a judgment from the

Kenton Circuit Court confirming a jury verdict sentencing him to five years’

imprisonment for eleven counts of criminal possession of a forged instrument in

the first degree, enhanced to ten years upon a finding of Johnson being a persistent

felony offender in the first degree. For the following reasons, we affirm.
 BACKGROUND

On May 23, 2018, Johnson contacted James Jackson through

Facebook Messenger to purchase some Air Jordan shoes that Jackson had posted to

sell on Facebook Marketplace for $70. Johnson and Jackson agreed to meet in

Covington, Kentucky that night to complete the sale.

When Jackson arrived at the meeting place that night, he recognized

Johnson at a distance from his Facebook profile. Johnson approached the driver’s

side window of Jackson’s car and exchanged three $20 bills and two $5 bills for

the shoes.

On the way home, Jackson felt the bills and noticed they had an

unusual texture. He went to a White Castle and attempted to purchase food with

some of the bills Johnson had given him. The staff informed him that the bills

were fake. Jackson saw that the bills stated: “It’s not the money, it’s a joke.”

Jackson then contacted the Covington Police Department.

On June 6, 2018, Andrew Thomas posted a pair of Air Jordan shoes

for sale on Facebook Marketplace. Johnson contacted Thomas the same day to

purchase the shoes for $120 and asked Thomas to meet him for the sale. When

Thomas arrived at the meeting place, he recognized Johnson from his Facebook

profile. After receiving six $20 bills from Johnson, Thomas realized that

something was wrong with the texture of the bills. Upon inspection, Thomas

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noticed the bills stated: “It’s not the money, it’s a joke.” Thomas contacted the

Covington Police Department that night. At later dates, Thomas gave the

Facebook messages with Johnson to the police, and he and Jackson selected

Johnson’s image out of a photo lineup. Johnson was subsequently arrested by

Covington Police.

Johnson was found guilty at trial of eleven counts of criminal

possession of a forged instrument in the first degree. Because Johnson had been

convicted of a felony in the past, the jury was given an instruction under which

they could decide that Johnson was a persistent felony offender. During the

penalty trial, Johnson’s counsel stated to the jury, “I would also like to remind you,

or let you know that, even if you find him eligible as a persistent felony offender,

that does not mean you have to enhance his sentence by convicting him.” The

Commonwealth objected, and the Judge instructed the jury to follow the law as

instructed, specifically stating, “. . . I think counsel misstated the law as it applies

to sentencing. If you find the defendant guilty, you have to follow the instructions,

you can’t just say well we’re not going to punish him. That’s called jury

nullification. You have to follow the law as instructed, okay, all right.”

During penalty phase deliberations, the jury sent a note to the Judge

asking, “Are we required by law to label Mr. Johnson a persistent felony

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offender?” After consultation with the attorneys, the trial court brought the jury to

the courtroom and gave the following answer:

[Your] job is to make findings of fact . . . You’re not the
law maker. You don’t make policy. You don’t make the
law. You make a factual finding. The instruction that
we’re dealing with here is Instruction Number 14 which
states you will find the defendant Quintez L. Johnson
guilty of being a persistent felony offender in the first
degree under this instruction if, and only if, you believe
from the evidence beyond a reasonable doubt, all the
following. . . . A, B, C, D, and E all must be found and if
you find that then according to the law, you have found
him to be by definition a persistent felony offender.
Okay, all I’m going to tell you to do is follow the law,
make factual findings, and the standard is beyond a
reasonable doubt for all those elements.

The jury subsequently returned a verdict finding Johnson guilty of

being a persistent felony offender and recommended a sentence of five years. The

circuit court entered judgment against Johnson on April 3, 2020, finding him guilty

of eleven counts of criminal possession of a forged instrument in the first degree

(one count for each counterfeit bill), with a prison term of five years for each count

that would run concurrently; two counts of theft by deception under $500 and one

count of being a persistent felony offender in the first degree; and he was ordered

to pay restitution to the victims in the amount of $190. Johnson’s sentence of five

years was enhanced to ten years upon the finding of him being a persistent felony

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offender in the first degree. The two misdemeanor theft by deception charges were

waived by the Commonwealth.

Johnson now appeals the unpreserved issues of (1) double jeopardy,

(2) restitution, and (3) jury nullification.

STANDARD OF REVIEW

Johnson concedes that his three alleged errors are unpreserved and

requests palpable error review of each. We review the issues under the palpable

error standard of Kentucky Rules of Criminal Procedure (RCr) 10.26, which states,

“[a] palpable error which affects the substantial rights of a party may be considered

by the court on motion for a new trial or by an appellate court on appeal, even

though insufficiently raised or preserved for review, and appropriate relief may be

granted upon a determination that manifest injustice has resulted from the error.”

ANALYSIS

I. Double Jeopardy

Johnson argues that being charged and convicted of eleven counts of

criminal possession of a forged instrument in the first degree violated his right to

not be convicted twice for the same offense under the Fifth Amendment of the

United States Constitution, Section 13 of the Kentucky Constitution, and Kentucky

Revised Statutes (KRS) 505.020. Though the issue was not preserved, “the

constitutional protection against double jeopardy is not waived by failing to object

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at the trial level.” Walden v. Commonwealth, 805 S.W.2d 102, 105 (Ky. 1991)

(citing Sherley v. Commonwealth, 558 S.W.2d 615 (Ky. 1977), overruled on other

grounds by Dixon v. Commonwealth, 263 S.W.3d 583 (Ky. 2008)). Double

jeopardy prohibits a defendant from being tried a second time for the same offense

after either conviction or acquittal. McNeil v. Commonwealth, 468 S.W.3d 858,

866 (Ky. 2015). It also prevents multiple punishments for the same offense. Id.

The General Assembly codified the double jeopardy rule in KRS

505.020, stating in relevant part:

(1) When a single course of conduct of a defendant may
establish the commission of more than one (1) offense,
he may be prosecuted for each such offense. He may not,
however, be convicted of more than one (1) offense
when:

...

(c) The offense is designed to prohibit a continuing
course of conduct and the defendant’s course of
conduct was uninterrupted by legal process, unless
the law expressly provides that specific periods of
such conduct constitute separate offenses.
No published Kentucky case deals with double jeopardy in the context

of a criminal possession of a forged instrument in the first degree case. However,

KRS 516.050 states that “[a] person is guilty of possession of a forged instrument

in the first degree when, with knowledge that it is forged and with intent to

defraud, deceive or injure another, he utters or possesses any forged instrument of

a kind specified in KRS 516.020.” (Emphasis added.)

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 Johnson argues for this Court to adopt a transactional approach

because KRS 516.050 does not state the passage of each counterfeit bill should be

charged as a separate offense. Even though he passed a total of eleven counterfeit

bills, Johnson argues they were passed in two transactions and, thus, he should

only have been charged with two criminal transactions. Johnson relies on Williams

v. Commonwealth, 213 S.W.3d 671 (Ky. 2006) and the unpublished opinion,

Dennis v. Commonwealth, No. 2007-CA-002266-MR, 2009 WL 2341432 (Ky.

App. Jul. 31, 2009), for support.

In Williams, supra, the Kentucky Supreme Court dealt with a statute

similar to KRS 505.020, KRS 218A.1404(3). Similar to this case, Dr. Williams

claimed he should have been charged with only two counts of unlawfully

prescribing a controlled substance off of two transactions because KRS

218A.1404(3) was meant to prohibit a course of conduct. Thus, charging him with

four counts violated the proscription against double jeopardy. The Court

disagreed, reasoning that the plain words of the statute clearly indicated that each

dispensation, prescription, distribution, or administration in violation of the law is

a specific period of conduct constituting a separate offense. Id. at 684.

In Dennis, supra, this Court vacated Dennis’s sentence based upon a

violation of double jeopardy rights when she passed counterfeit bills during two

distinct sales transactions in different gas stations. The Court held that

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“punishment must be based upon the number of criminal transactions in which she

engaged as opposed to the number of counterfeit bills she passed.” Id. at *2.

However, the Dennis case is distinguishable because Dennis was sentenced to five

years on each of three counts of criminal possession of a forged instrument, to run

consecutively, not concurrently (except for one count), totaling fifteen years’

imprisonment. Here, the circuit court determined that Johnson’s eleven sentences

were to run concurrently, so we do not have the multiple punishment issue.

Moreover, unpublished opinions are not binding precedent, but only persuasive

authority. CR 76.28(4)(c). Therefore, we are not required to follow their holdings.

Dennis has not been cited since it was rendered, and the transactional analysis in

that case is at odds with the approach taken in Williams, supra.

In Early v. Commonwealth, 470 S.W.3d 729 (Ky. 2015), the Kentucky

Supreme Court cited Williams again and held:

The legislature’s use of the singular “a forged
prescription” demonstrates its intention to punish the
trafficking of each forged prescription as a separate and
distinct trafficking offense. Moreover, when it intends to
bar a continuing course of conduct, the legislature has
consistently drafted criminal statutes to specify certain
acts or quantities that may be included in a singular
crime. See, e.g., KRS 218A.1412(2) (specifying that
amounts may be reached over a series of
transactions) . . . .

Id. at 738-39. This seems to limit the transactional analysis to areas where the

legislature has specifically designated that approach.

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 We conclude that manifest injustice did not result from Johnson being

convicted on eleven counts of criminal possession of a forged instrument in the

first degree in accordance with KRS 516.050. The plain language of the relevant

statutes and the holding in Williams support this finding.

II. Restitution

Johnson claims that the trial court erred when it ordered him to pay

$190 in restitution to the two victims ($70 to Mr. Jackson and $120 to Mr.

Thomas) because due process requires an adversarial hearing when the parties do

not agree on restitution, and none was held in this case. The Commonwealth

argues that it asked for restitution in the amount of $190 to the two victims at the

end of the sentencing hearing. Johnson did not object, and the trial court ordered

the restitution.

KRS 532.032 deals with restitution but does not provide that a hearing

must be conducted before determining restitution. Jones v. Commonwealth, 382

S.W.3d 22, 31 (Ky. 2011). In Jones, the Kentucky Supreme Court explained that

“implicit in our statutory scheme requiring restitution, is an adversary hearing,

ordinarily conducted in conjunction with the final sentencing hearing, at which the

trial court will have broad discretion to make findings based upon reliable

information, but not bound by the rules of evidence or traditional rules of

pleading.” Id. (Emphasis added.) The Court envisioned that in the great majority

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of cases, restitution, “when not agreed upon or clearly established from the

evidence presented during trial, will be readily ascertained and easily

verified . . . .” Id. The Court further stated:

However, we recognize that not every disputed issue of
restitution can be fairly or efficiently resolved in a
summary proceeding like the traditional sentencing
hearing. KRS Chapter 532 requires judges to impose
restitution when applicable, but it does not compel our
trial judges to do so without conducting a proper hearing
with whatever degree of formality is necessary in the
particular circumstances to assure compliance with
constitutional due process. In the more complex claims,
with factual issues that do not lend themselves to being
reliably resolved in a summary proceeding, the trial judge
must exercise the broad discretion of that office to
resolve the matter in a way that respects the
constitutional rights of all the parties and that achieves
substantial justice.
Id.
During trial, both Jackson and Thomas testified to the amount of

counterfeit money given to them by Johnson in exchange for their shoes, which

were never returned to them. Jackson was given $70 in forged bills, and Thomas

was given $120. The amount of counterfeit money given was never disputed.

We conclude that the trial court did not err by ordering Johnson to pay

$190 in restitution to the victims.

III. Jury Nullification

Johnson claims the trial court violated his Sixth Amendment right to a

trial by jury and inhibited the jury’s right to nullification. In criminal cases, jury

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nullification is a “longstanding common law tradition, now constitutionalized, that

the jury always has the option of disbelieving the evidence offered to prove guilt

and returning a ‘not guilty’ verdict.” Medley v. Commonwealth, 704 S.W.2d 190,

191 (Ky. 1985). The principle of jury nullification applies equally to sentencing

enhancements. Id. (citing Coleman v. Commonwealth, 125 S.W.2d 728 (Ky.

1939)). However, the right to disbelieve evidence does not equate to the right to

disregard the law. Id. Thus, the court cannot instruct the jury that it has a right to

find the defendant not guilty even though the evidence proves his guilt beyond a

reasonable doubt. This rule applies to the charge of being a persistent felony

offender as well as the principal charge. Id. (citing Williams v. Commonwealth,

644 S.W.2d 335 (Ky. 1982)). “A jury is entitled to disbelieve evidence of prior

convictions . . . However, once the jury is persuaded that the defendant has been

convicted of two or more felonies, the language of KRS 532.080(1) is mandatory:

the jury must fix a sentence within the ranges specified in the statute.” Id.

(quoting Adkins v. Commonwealth, 647 S.W.2d 502, 506 (Ky. App. 1982)).

The Court in Medley explained that just as it is improper for a judge to

instruct the jury that it may disregard the law and return a not guilty verdict on the

persistent felony offender charge because it believes that the penalty set by the

legislature is too severe, it is equally improper for counsel to make such an

argument. Id. at 191. “Counsel has the right to argue that the jury may disbelieve

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the evidence and find the defendant not guilty, but no right to argue that it may

disregard the law because it believes the minimum penalty set by the legislature is

too severe.” Id.

“Although jurors may indeed have the power to ignore the law, their

duty is to apply the law as interpreted by the court and they should be so

instructed.” United States v. Avery, 717 F.2d 1020, 1027 (6th Cir. 1983). Thus,

the trial court did not err when it instructed the jury to follow the law.

Additionally, when the trial court responds to a jury question regarding jury

nullification, a defendant does not have the right for the court to inform the jury of

their nullification power at that juncture. See Medley, 704 S.W.2d at 191 (“it

would be improper to instruct the jury that it may disregard the law and return a

verdict of ‘not guilty’ on the persistent felony offender charge because it believes

that the penalty set by the legislature is too severe . . .”).

Ultimately, whether a jury may be informed of their nullification

power is a question for the legislators of the General Assembly or the Kentucky

Supreme Court. In light of the controlling law, we conclude that no manifest

injustice resulted from the trial court’s instructions to the jury.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Kenton Circuit

Court.

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 ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Shannon Dupree Daniel Cameron
Jennifer Wade Attorney General of Kentucky
Frankfort, Kentucky
Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky

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