|MPORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON lS DES|GNATED ”NOT TO BE PUBL|SHED."
PURSUANT TO THE RULES OF ClVlL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
TH|S OP|N|ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE
ClTED OR USED AS BlNDlNG PRECEDENT lN ANY OTHER
CASE lN ANY COURT OF TH|S STATE; HOWEVER,
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR
CONS|DERAT|ON BY THE COURT lF THERE lS NO PUBL|SHED
OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE
BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON
BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED
DEC|S|ON |N THE FlLED DOCUMENT AND A COPY OF THE
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DOCUMENT TO THE COURT AND ALL PART|ES TO THE
ACT|ON.

RENDERED: FEBRUARY 16, 2017
NOT TO BE PUBLISHED

§uprerire Court of Ben c NA L

2016-sc-000339_MR ©A Eq.____/m/W /4»`¢ M»¢w.b<_

 

 

JEFFREY LEE KOLLEY APPELLANT

ON APPEAL FROM HARDIN CIRCUIT COURT
V. HONORABLE KEN HOWARD, JUDGE
NO. 15-CR-00586

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT
AFFIRMING'

A circuit court jury convicted Jeffrey Lee Kolley of Receiving Stolen
Property (RSP), $10,000 or more; Operating a Motor Vehicle Under the
Influence of Alcohol (DUI), first-offense; and of being a first-degree Persistent
Felony Offender (PFO). The trial court accepted the jury’s recommendation
regarding punishment and imposed an enhanced sentence of twenty-years’
imprisonment Kolley appeals the resulting judgment to this Court as a matter

of right.1

 

1 Ky. Const. § 110(2)(b).

On appeal, Kolley cites six separate errors in the proceedings below: (1)
the trial court failed to conduct a proper Faretta hearing before allowing him to
represent himself at trial, (2) the trial court denied his directed-verdict motion
on the DUI charge, (3) the trial court allowed improper testimony to establish
the value of the stolen school bus, (4) the trial court failed to instruct the jury
on possible lesser-included offenses to the RSP charge, (5) the trial court
allowed the Commonwealth to introduce a “summary.sheet” as evidence in the
penalty phase of the trial, and (6) the prosecutor made an improper closing
argument in the guilt phase of the trial. Only the first two claims of error are
preserved in the record for appellate review. The remaining claims of error are
unpreserved, and Kolley requests palpable-error review of them.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Trooper Luke Dubin arrived at the scene where a stalled school bus was
impeding the flow of traffic on a busy highway. He found Kolley standing a few
feet away from the bus. Kolley told the Trooper that he was a school-bus
mechanic and the driver of the bus. The Trooper soon decided that Kolley was
intoxicated, that he was not properly licensed to operate a bus, and that he
had probably hotwired the bus, School officials who came to the scene
confirmed that Kolley was neither the school-system mechanic he` claimed to be
nor the authorized driver of this bus. Other school officials confirmed that the
bus had been stolen from its parking place on school grounds. Kolley

attempted to flee the scene on foot, but Trooper Dubin restrained and arrested

him.

Initially, Kolley had appointed counsel, and he waived grand-qu
presentment of the original charges arising out of the facts of the present case.
Prosecution proceeded against him by an Information that charged him With
Receiving Stolen Property, More than $500 but Less than $10,000, and first-
offense DUI. When resolution of those charges by plea agreement failed, the
grand jury indicted Kolley on those same charges, and the case proceeded
toward trial.

At a scheduled pretrial conference, the trial court inquired about the
status of Kolley’s defense counsel. Kolley then indicated that he intended to
represent himself at trial. Af`ter engaging Kolley in a colloquy concerning his
ability to represent himself, the trial court granted Kolley’s request for self-
representation in all further proceedings.

Shortly before the scheduled trial, the grand jury returned a
supplemental indictment charging RSP, $10,000 or more, the DUI charge as
originally stated, and the PFO charge. At a pretrial conference two days before
trial, the trial court appointed stand-by counsel from the Kentucky Department

of Public Advocacy, who assisted Kolley at trial.

II. ANALYSIS.
A. The trial court did not err by allowing Kolley to waive

representation by counsel.

A defendant’s right to counsel is guaranteed by both the Sixth
Amendment of the United States Constitution and Section Eleven of the
Kentucky Constitution.2 A defendant also has the right to represent himself, if
he so chooses, by waiving his right to counsel.3 If a defendant chooses to
exercise his right to proceed without legal representation, the trial court must
investigate further by conducting a Faretta inquiry.4 The purpose of this
hearing is to ensure that the defendant’s decision to proceed without counsel is
made knowingly, intelligently, and voluntarily.5 As we stated in Commonwealth
v. Terry, “Because the colloquy between a defendant and the trial court need
not follow a script, a determination of whether the eyes of a defendant who
seeks to represent himself were sufficiently opened is a determination that
must be made on a case-by-case basis.”6 At a minimum, the defendant must
be “made aware of the dangers and disadvantages of self-representation, so
that the record will establish that he knows what he is doing and his choice is

made with eyes open.”7 We are convinced from this record that Kolley, an

 

2 U.S. Const. amend. VI; Ky. Const. § 1 1.

3 Id.

4 See Depp v. Commonwealth, 278 S.W.3d 615, 617 (Ky. 2009).
5 Id.

6 Commonwealth v. Terry, 295 S.W.3d 819, 822 (Ky. 2009).

7 Id. (quoting Faretta v. Calg'fomia, 422 U.S. 806, 835 (1975)).

4

experienced criminal litigant in both state and federal courts, was adequately
apprised of the risks associated with his decision to proceed to trial in this case
without counsel. The record reflects that the trial court took appropriate steps
to inform Kolley of the potential perils associated with self-representation,

At the initial pretrial conference, when asked if he had counsel, Kolley
responded that he would be moving forward as his own counsel. The trial court
then engaged in a colloquy with Kolley asking if he had been threatened in any
way, whether he was under or had any past care for mental illness or disease,
whether he presently had any mental disease or illness, whether he was under
treatment for drug usage, or if he was in any type of rehabilitation treatment.
The answer to each was in the negative. The trial court asked Kolley if he knew
how to file motions, court procedure, and the rules of evidence. And he again
answered in the affirmative The trial court then proceeded to inform Kolley
that if he chose to represent himself that the court would not be able to assist
him in his defense or answer questions. Furthermore, the trial court
admonished Kolley that “you would be better off to have an attorney.”

In addition to these warnings, the Commonwealth asserts that there was
an additional Faretta-type hearing that took place two days before trial.8 We

know from the record before us that after this hearing, the Commonwealth

 

8 The Commonwealth’s brief notes that this hearing was not furnished to us in
the record on appeal and urges us to assume, as our precedent allows, that the
omitted portion of the record supports the trial court’s decision. Commonwealth v.
Thompson, 697 S.W.2d 143, 145 (Ky. 1985) (citing Commonwealth, Dept. of Highways
v. Richardson, Ky., 424 S.W.2d 601 (1968)).

5

asserts took place two days before trial, Kolley was given stand-by counsel who
assisted him at trial.

Given the above facts, reflected in the briefs and record, we are satisfied
that the trial court did not err in its handling of Kolley’s waiver of
representation,

B. The trial court did not err in denying Kolley’s directed-verdict
motion.

The parties disagree about whether this alleged error is preserved. Kolley
asserts the error is not preserved for appellate review, but the Commonwealth
claims that the alleged error is indeed preserved. Having reviewed the record,
we find that the error is preserved for our review. More specifically, as Kolley
argues, we are asked to review the trial court’s denial of Kolley’s directed
verdict motion on the DUI charge.

When deciding a directed-verdict motion, the trial court must take as
true all evidence favoring.the Commonwealth (non-moving party) and
determine whether the evidence is sufficient to induce a reasonable jury to
believe beyond a reasonable doubt that the defendant is guilty.9 In
Commonwealth 1). Benham we stated that “On appellate review, the test of a
directed verdict is, if` under the evidence as a whole, it would be clearly

unreasonable for a jury to find guilt, only then the defendant is entitled to a

 

9 Pollini v. Commonwealth, 172 S.W.3d 418, 429 (citing Commonwealth v.
Benham, 816 S.W.2d 186, 187 (Ky. 1991)).

6

directed verdict of acquittal.”10 In applying this standard, we reject Kolley’s
argument that he was improperly denied a directed verdict.

The Commonwealth introduced sufficient evidence to survive a directed
verdict motion as it applies to the DUI charge. The Commonwealth notes it
produced both testimony of intoxication and physical evidence that Kolley
operated the stolen bus,

Trooper Durbin testified about his initial encounter with Kolley at the
location of the stalled school bus. Trooper Durbin testified Kolley was acting
“bizarre,” “confused,” “inappropriate[ly],” with the odor of alcohol “coming off of
him.” Although Kolley told the Trooper he had only had consumed two beers,
the Trooper thought the level of the alcohol odor indicated ingestion of quite a
bit of alcohol. Furthermore, the Trooper concluded that Kolley had hotwired the
bus because inside the bus the Trooper observed “a bunch of shredded wire
and there were no keys in the ignition.” And tools used to strip plastic from
wires were found on Kolley’s person. Lastly, Kolley actually admitted to Trooper
Durbin that he had been operating the vehicle.

'In light of the evidence presented at trial, we conclude that it would not
be clearly unreasonable for a juror to find Kolley guilty of DUI. Accordingly, we

conclude that the trial court did not err in denying Kolley’s motion for directed

verdict.

 

10 Benham, 816 S.W.2d at 187.

C. The trial court did not err in admitting evidence of the value of the
school bus.
Admitting that the remainder of alleged trial errors are unpreserved,
l Kolley requests review under RCr 10.26,11 under which relief may be granted
upon a showing of “palpable error.”12 A finding of palpable error requires a
showing that the alleged error affected the “substantial rights” of a defendant,
for whom relief may be granted “upon a determination that manifest injustice
has resulted from the error.”13 To find manifest injustice, the reviewing court
must conclude that the error so seriously affected the fairness, integrity, or
public reputation of the proceeding as to be “shocking or jurisprudentially
intolerable.”14
Having set forth the standard, we will discuss Kolley’s alleged error
involving the testimony of Brad Patterson, the school system’s bus-garage
supervisor, concerning the value of the stolen bus. Kolley argues that Patterson
Was not qualified to provide testimony to the value of the school bus. The
entirety of the evidence establishing the value of the stolen school bus came via
Patterson’s testimony.
During Patterson’s testimony the Commonwealth established that he had

worked on the school’s buses for the last twelve years. During that time, he

 

11 Kentucky Rules of Criminal Procedure 10.26.
12 Id.

13 Id.
14 Marti'n v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).

8 .

became knowledgeable about school buses. While Patterson was not directly
involved in purchasing the buses, he testified that he was aware of the price
paid for a new bus, approximately $86,000. And he testified that the stolen bus
was a 2000 model-year diesel manufactured by International. He stated that it
was in “good shape” and had a value of $1 1,000 to $15,000 and a useful-life
expectancy of 19-20 years.

Because of Patterson’s familiarity with bus maintenance and associated
costs and his personal knowledge of the condition of the stolen bus, in
particular, we see no basis to conclude that allowing his testimony concerning
the approximate value of the stolen bus was palpable error.

D. The trial court did not err by failing to give lesser-included offense
instructions.

Kolley contends that the court erred when it failed to give a lesser-
included offense instruction for the RSP charge. Specifically, Kolley contends
that the trial court should have given an instruction for RSP, More than $500
but Less than $10,000.15 Kolley further contends he should have had an
instruction for unauthorized use of an automobile or other propelled vehicle.16
We disagree.

While Kolley admits that his alleged error is unpreserved, RCr 9.54(2)

helps guide our analysis.17 RCr 9.54(2) provides “No party may assign as error

 

15 KRs 514.110.
16 KRs 514.100.
17 Rcr 9.54(2).

the giving or the failure to give an instruction unless the party's position has
been fairly and adequately presented to the trial judge by an offered instruction
or by motion, or unless the party makes objection before the court instructs
the jury, stating specifically the matter to which the party objects and the
ground or grounds of the objection.” Kolley failed to object to the proposed
instructions, and he failed to offer alternative instructions

Additionally, the Commonwealth notes that all the evidence produced
indicated that the value of4 the bus was over $10,000.00. Because there Was no
other evidence disputing this, even if Kolley had suggested to the trial court
that he wanted the lesser-included instruction given, there was no evidence
produced at trial to support it. Nor did Kolley advance his position of a lesser-
included offense of unauthorized use of an automobile or other propelled
vehicle.

Finding that Kolley failed to advance his claim, and had no basis to do
so, we find no palpable error.

E. The trial court did not err by admitting a written summary of

Kolley’s prior convictions in the penalty phase.

Once again, this error is unpreserved. The Commonwealth draws our
attention to the fact that, not only is this error unpreserved, Kolley waived any
possible objection to its use by agreeing to the introduction of the summary
sheet of Kolley’s six prior convictions during the penalty phase of the trial.

We have examined the summary sheet of Kolley’s prior convictions that

was submitted to the jury. It contains a barebones summary of the properly

10

certified copies of final judgments rendered against Kolley in state and federal
courts, which also appear separately as exhibits in the trial record. The
summary sheet appears to provide admissible information for the jury to
consider in the penalty phase of the trial. We find no basis for palpable error.
F. The prosecutor did not err by making improper remarks during
closing arguments in the guilt phase.

Lastly, Kolley contends that the prosecutor made improper remarks
during closing arguments of the guilt phase. Kolley argues that remarks made
by the Commonwealth were an attempt to shift the burden of proof from the
Commonwealth to the defendant After reviewing the record, we do not find
that the Commonwealth impermissibly shifted any burden to the defendant.

During the Commonwealth’s closing, the prosecutor stated, “we’re all
responsible for our own actions, and that’s simply what I’m asking you to do,
hold this man responsible. If we’re not responsible for our own actions we live
in chaos....” We find no improper argument in this statement Consequently,

there is no palpable error.

III. CONCLUSION.

For the foregoing reasons, we affirm the trial court.

All sitting. All concur.

11

COUNSEL FOR APPELLANT:
Robert C. Bishop
COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Leilani K.M. Martin
Assistant Attorney General

12

