             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
 OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
 BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
 DECISION IN THE FILED DOCUMENT AND A COPY OF THE
 ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
 DOCUMENT TO THE COURT AND ALL PARTIES TO THE
 ACTION.
                                                  RENDERED: AUGUST 20, 2015
                                                     E4111F     PUBLISHED

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                       2014-SC-000356-MR
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JOSEPH WAYNE ALLEN                                                               APPELLANT


                ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.              HONORABLE OLU ALFREDO STEVENS, JUDGE
                            NO. 04-CR-001360


COMMONWEALTH OF KENTUCKY                                                         APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      A Jefferson Circuit Court jury found Appellant, Joseph Wayne Allen,

guilty of three counts of first-degree rape and one count each of first-degree

sodomy, kidnapping, first-degree sexual abuse, and tampering with physical

evidence. For these crimes, Appellant was sentenced to a total of seventy years'

imprisonment. He now appeals as a matter of right, Ky. Const. § 110(2)(b), and

raises the following issues: (1) the trial court erred in awarding nine

peremptory challenges to the Commonwealth, as it was not entitled to any; and

(2) the trial court erred in informing Appellant as to his right to counsel under

KRS Chapter 31, as that chapter does not permit the appointment of hybrid

counsel.


                                 I. BACKGROUND
      Appellant was originally tried and convicted of the underlying charges

(and one count of first-degree burglary) in 2007. We heard his direct appeal in
Allen v. Commonwealth, 276 S.W.3d 768 (Ky. 2008) and reversed and

remanded to the trial court for a new trial. The current appeal arises from

Appellant's retrial, in which Appellant represented himself with the assistance

of appointed counsel. Further facts will be developed as necessary for our

analysis.


                                    II. ANALYSIS

   A. Peremptory Challenges
      Appellant first argues that the trial court erred in awarding nine

peremptory challenges to the Commonwealth. In framing his argument,

Appellant challenges the constitutionality of KRS 29A.290(2)(b) which provides

that "parties shall have the right to challenge jurors," and further specifies that

"[t]he number of peremptory challenges shall be prescribed by the Supreme

Court." Appellant asserts that, as the prosecution was not allowed peremptory

strikes under common law, the Supreme Court may not allow them now. In

his reply brief, however, Appellant acknowledges that this Court recently

squarely addressed this issue in White v. Commonwealth, No. 2014-SC-

000069-MR, 2015 WL 1544230, at *1-3 (Ky. Apr. 2, 2015).

      In White, we stated:

            this Court has recently addressed the propriety of
      prosecutorial peremptory strikes. In Glenn v. Commonwealth, we
      declared that "although KRS 29A.290(2)(b) constitutes an
      encroachment by the General Assembly upon the prerogatives of
      the judiciary, it is not inconsistent with our rules, and is,
      therefore, upheld as a matter of comity." 436 S.W.3d 186, 188
      (2013) (citing Commonwealth v. Reneer, 734 S.W.2d 794, 797 (Ky.
      1987) (internal quotations omitted). Citing our authority under
      Section 116 of the Kentucky Constitution, we affirmed RCr 9.40

                                         2
      substantively, and reaffirmed our constitutional power as a Court
      to promulgate rules of practice and procedure—including our
      authority to set the rules for the allocation of peremptory strikes.
      "We alone are the final arbiters of our rules of 'practice and
      procedure."' 436 S.W.3d at 188.

             So although the Glenn decision did not squarely address the
      constitutionality of KRS 29A.290(2)(b), this Court deemed the
      statute acceptable by way of comity. "Comity, by definition, means
      the judicial adoption of a rule unconstitutionally enacted by the
      legislature not as a matter of obligation but out of deference and
      respect." Taylor v. Commonwealth, 175 S.W.3d 68, 77 (Ky. 2005)
      (internal citations omitted). In extending comity, we recognized that
      KRS 29A.290(b)(2) is consistent with our rules of practice and
      procedure. Glenn, 436 S.W.3d at 188.



            . . . Glenn held that the allocation of peremptory strikes falls
      within the Court's procedural rulemaking authority and extended
      comity to KRS 29A.290(2)(b). Id. Therefore, . . . let us be clear: the
      Court has upheld KRS 29A.290(2)(b) under the principles of
      comity. We reaffirm that decision today.

Id. at *2-3. We decline to depart from our recently-rendered opinion in White

and reaffirm its holding today. This Court exercised its procedural rulemaking

authority in allocating the number of peremptory strikes allowed to the parties

and the trial court followed our mandates.

      Furthermore, KRS 418.075 requires that the Attorney General be notified

prior to the entry of judgment in a case calling into question the

constitutionality of a statute. Appellant did not comply with this statute and

we decline to further address the matter.

      For the foregoing reasons, the trial court did not err by allocating nine

peremptory strikes to the Commonwealth.




                                         3
   B. Hybrid Counsel

      Appellant next argues that he was improperly informed of his rights

related to hybrid counsel and asks that this Court reverse his convictions and

remand for a new trial on this basis. In order to properly address this issue, a

thorough discussion of the conversations which took place during Appellant's

ex parte hearing is required.

      Appellant's trial counsel, Ms. Eschner, had also represented him in 2007

in his first trial. At the ex parte hearing, she explained that the policy at the

Louisville Metro Public Defender's Office is that the same public defender

represents a client on retrial. Ms. Eschner expressed that she was ready,

willing, and able to represent Appellant.

      Appellant presented two separate motions to the trial court at the ex

parte hearing. When the trial court asked Appellant which motion he would

like to address first, Appellant indicated his motion to dismiss counsel.

Appellant relied upon two grounds for his desire to dismiss Ms. Eschner: first,

that he would like to subpoena her and have her testify in his defense and,

second, that he did not feel Ms. Eschner was there to help him. When

questioned by the trial court regarding what he would have Ms. Eschner testify

about, Appellant indicated he wanted her to testify about the DNA expert,

discovery issues, and about their conversations regarding his case. The trial

court told Appellant that Ms. Eschner would not be permitted to testify about

those matters, as they have nothing to do with whether or not Appellant

committed the offenses in question. The trial court informed Appellant that if


                                            4
Appellant's only reason for wanting to dismiss Ms. Eschner was so that he

could call her as a witness, the court would dismiss the motion summarily.

      Appellant's next reason to dismiss Ms. Eschner was that he felt she was

not on his side. Appellant indicated that, dating back to his first trial, Ms.

Eschner ignored his directions about specific questions to ask witnesses and

about giving him access to discovery materials. Appellant then indicated that

he wanted to represent himself.

      The trial judge gave Ms. Eschner an opportunity to respond. She

indicated that she had turned over all of the more than five-hundred pages of

discovery materials to Appellant during his first trial. She said it was true that

Appellant had theories on his case that she did not agree with. Appellant's

defense at trial was that he did not commit these crimes and that there was a

problem with the DNA. In the first trial, Ms. Eschner hired a DNA expert who

testified at trial. However, Appellant also wanted Ms. Eschner to present a

theory that he had been set up by the police. She admitted that she did not

present that theory at trial, as she did not find evidence to support it. Ms.

Eschner kept Appellant's file open for seven years awaiting his extradition from

Florida—where he was held on unrelated charges—and appeared at all

hearings in the interim on Appellant's behalf. She explained that when

Appellant told her he wanted to dismiss her as his counsel, she informed him

that it would be difficult for another attorney to prepare for his case given the

limited time frame, which Appellant was unwilling to extend. Ms. Eschner also

indicated that Appellant asked her about being his co-counsel, but stated she


                                         5
told Appellant this may present a problem if they disagreed on trial issues. She

advised Appellant that he has a Constitutional right to represent himself and

that he would need a hearing in front of the trial court if he wished to pursue

that option.

      The trial court agreed with Ms. Eschner that it would be impossible to

find substitute counsel to try the case unless Appellant was willing to get a

continuance (and Appellant indicated that he was unwilling to do so).

However, the trial court told Appellant that, depending on his answers to the

colloquy required by Faretta v. California, 422 U.S. 806 (1975), he may be

allowed to represent himself. The trial court instructed Appellant that there

were a lot of decisions he would not be able to make—that the trial court would

require certain things regardless of whether he had counsel. The trial court

informed Appellant he would be much better represented by his attorney and

strongly urged him against self-representation, especially considering the fact

that the penalty could be up to seventy years' imprisonment. Following the

Faretta colloquy, the court then asked if it was still Appellant's desire to

dismiss his attorney and represent himself and Appellant responded in the

affirmative.

      It was only after Appellant's indication that it was his desire to dismiss

his attorney and represent himself, that Appellant then asked the trial court if

his trial counsel could still help him subpoena witnesses and acquire an

expert. The trial court indicated that this issue was addressed in Appellant's

second motion, where, as the trial court described, Appellant asked for


                                          6
"whisper counsel." The trial court told Appellant that if it completely dismissed

Ms. Eschner, she would be entirely off the case and, as previously explained,

bringing in substitute counsel was not an option given the time constraints.

The trial court then asked Appellant if his desire was to have Ms. Eschner do

some of the things he described (such as subpoena witnesses and find an

expert), but that Appellant wished to conduct the majority of the in-court

representation himself. Appellant agreed that was what he wanted. He

specified that he would like for Ms. Eschner to agree to be his co-counsel on

limited terms.

      Ms. Eschner stated that she did go over Appellant's options with him at

their meeting. She told him that, as the lawyer in the case, she gets to decide

on things like trial strategy and whether to put a witness on the stand. She

said she told Appellant that, if she agreed to be his co-counsel, that did not

mean that he got to tell her what to do. The trial court agreed and told

Appellant that by making Ms. Eschner co-counsel, he did not demote her to a

lesser role and gain control over her. The trial court indicated that if it allowed

Ms. Eschner to stay on as "whisper counsel," she retained the authority to

make certain decisions. The court informed Appellant that he could make
                                                                                J


requests of her, but that she could still decline to follow his requests.

      The trial court then asked Appellant if it was his desire to go forward

either on his own or with Ms. Eschner as "whisper counsel" and Appellant

indicated that he would prefer the latter option. The trial court made a finding

that Appellant knowingly, voluntarily, and intelligently waived his right to


                                         7
counsel and that he would be permitted to represent himself. The court then

designated Ms. Eschner as, in its words, "whisper counsel" and said that role

would be specifically defined with specific tasks.

      Appellant now argues that the trial court erred in appointing Ms.

Eschner as hybrid counsel, as "nothing in Chapter 31 permits appointment of

`hybrid' counsel."' Appellant admits that this argument was not preserved at

trial and asks this Court to review for palpable error under RCr 10.26.

"Palpable error affects the substantial rights of the party and results in

manifest injustice. Furthermore, an appellant claiming palpable error must

show that the error was more likely than ordinary error to have affected the

jury." Boyd v. Commonwealth, 439 S.W.3d 126, 129-30 (Ky. 2014). "In

determining whether an error is palpable, 'an appellate court must consider

whether on the whole case there is a substantial possibility that the result

would have been any different."' Commonwealth v. Pace, 82 S.W.3d 894, 895

(Ky. 2002) (citing Commonwealth v. McIntosh, 646 S.W.2d 43. 45 (Ky. 1983)).

      Appellant argues that he did not adequately waive his right to counsel,

as the trial court did not follow the statutory provisions for waiver. Specifically,

he points to KRS 31.140 which states, in pertinent part: "A person who has

been appropriately informed under KRS 31.120 may waive in writing, or by

other record, any right provided by this chapter, if the court concerned, at the

time of or after waiver, finds of record that he has acted with full awareness of

his rights and of the consequences of a waiver and if the waiver is otherwise

according to law. . . ." He argues that the right to trial counsel contained in the


                                          8
KRS 31.110(2)(a) does not include anything about hybrid counsel. Therefore,

he argues that he was not given accurate information about his options for

representation at trial.

      We find this argument disingenuous. First of all, Appellant's first motion

was to dismiss his counsel. The trial court granted this motion after

conducting a Faretta hearing and determining that Appellant did so knowingly,

voluntarily, and intelligently. Then, and at Appellant's behest, the trial court

appointed Ms. Eschner as "whisper counsel." Appellant did not rely on the

trial court appointing hybrid counsel in making his decision to represent

himself. Rather, he requested Ms. Eschner still be available to help him with

certain aspects of the trial after he had already asked for her dismissal.

      Furthermore, we agree with the Commonwealth that Appellant invited,

and therefore waived, any alleged error.

      This situation presents circumstances akin to those where an
      appellant has "invited error." See, e.g., Wright v. Jackson, 329
      S.W.2d 560 (Ky.1959) ("We have often held that a party is estopped
      to take advantage of an error produced by his own act."); Miles v.
      Southeastern Motor Truck Lines, 173 S.W.2d 990, 998, 295 Ky.
      156, 173 (1943) ("It is the rule that one cannot complain of an
      invited error."). . . . [T]he rationale behind the notion [is] that one
      cannot commit to an act . . . and later complain on appeal that the
      trial court erred to his detriment . . . . "A defendant cannot
      complain on appeal of alleged errors invited or induced by himself,
      particularly where . . . it is not clear that the defendant was
      prejudiced thereby." United States v. Lewis, 524 F.2d 991, 992 (5th
      Cir.1975).

Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006). Any error Appellant

now alleges was brought about by his request for Ms. Eschner's continued

representation in a limited role---and we will not further entertain any


                                           9
arguments on those grounds. The trial court did not err, much less did it err

to the degree of creating a manifest injustice.


                                 III. CONCLUSION

      For the foregoing reasons, we affirm Appellant's convictions and

sentence.

      All sitting. All concur.




                                        10
COUNSEL FOR APPELLANT:

Daniel T. Goyette, Louisville Metro Public Defender of Counsel
Joshua Michael Reho, Assistant Appellate Public Defender


COUNSEL FOR APPELLEE:

Jack Conway, Attorney General of Kentucky
Micah Brandon Roberts, Assistant Attorney General
