Background
In 2015, DaShawn Johnson was indicted in Henderson County, Kentucky on two counts of First-Degree Trafficking in a Controlled Substance with a Persistent Felony Offender (PFO) enhancement, and separately on one count of Possession of a Handgun by a Convicted Felon. Following both a bench trial on the firearm charge and a jury trial on the trafficking charges, Johnson was convicted on all counts. The circuit court sentenced him to 20 years on the trafficking and PFO charges, to run consecutively with a 10-year sentence on the handgun conviction, producing an aggregate 30-year term. The Kentucky Supreme Court affirmed all convictions in Johnson v. Commonwealth, 553 S.W.3d 213 (Ky. 2018), expressly rejecting Johnson’s argument that the consecutive sentences violated the statutory sentencing caps in KRS 532.110(1)(c) and KRS 532.080(6)(b).
Following that affirmance, Johnson pursued multiple rounds of post-conviction litigation. A 2018 habeas corpus petition was denied. A CR 60.02 motion filed in January 2019 was denied by the circuit court and affirmed on appeal. A second CR 60.02 motion filed in August 2020 was denied without appeal. Johnson then filed a third CR 60.02 motion on August 19, 2024, again asserting that his aggregate 30-year sentence exceeded the statutory cap applicable to his Class B and Class C felony convictions.
The Henderson Circuit Court held a hearing on the motion in May 2025 and denied it. Johnson, proceeding pro se, appealed to the Kentucky Court of Appeals, contending the circuit court committed reversible error by failing to correct a sentence that he argued was unlawfully imposed.
The Court’s Holding
The Court of Appeals affirmed the denial, declining to reach the merits of Johnson’s sentencing-cap argument on the ground that the issue had already been litigated and conclusively resolved against him on direct appeal. The court cited Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983), for the principle that CR 60.02 relief is available only in extraordinary situations where relief is unavailable on direct appeal or under RCr 11.42, and that issues addressed on direct appeal cannot be relitigated through a collateral motion.
The court further applied the law of the case doctrine, under which a prior appellate decision on an issue in the same case is binding in all subsequent proceedings. Because the Kentucky Supreme Court had squarely considered and rejected Johnson’s statutory sentencing-cap argument in his 2018 direct appeal — holding that the cap provisions do not extend to sentences imposed in separate prior cases — that determination was final and controlling. The Court of Appeals held it had no authority to revisit the question.
Key Takeaways
- A claim raised and decided on direct appeal cannot be re-litigated through a subsequent CR 60.02 motion; the rule announced in Gross v. Commonwealth bars such collateral relitigation.
- The law of the case doctrine operates as an “iron rule” foreclosing Kentucky appellate courts from reconsidering issues already adjudicated in the same case, even when the defendant raises them in a new procedural vehicle.
- Kentucky’s aggregate sentencing caps in KRS 532.110(1)(c) and KRS 532.080(6)(b) apply within a single case; consecutive service ordered alongside sentences from separate prior indictments does not violate those caps.
Why It Matters
This unpublished decision reinforces the limited scope of CR 60.02 as a post-conviction remedy in Kentucky. Courts have consistently held that the rule is not a vehicle for relitigating claims that were — or could have been — addressed on direct appeal or in RCr 11.42 proceedings. Defense practitioners should be aware that exhausting a sentencing argument on direct appeal forecloses raising the same theory through collateral attack, regardless of how the motion is framed.
The case also illustrates the breadth of the law of the case doctrine as applied in Kentucky. Once a higher court resolves a legal question in a given case, that resolution binds all subsequent courts in the same litigation. Defendants seeking post-conviction sentence corrections must therefore identify genuinely new grounds — not reformulations of arguments already disposed of — to obtain CR 60.02 review.