Harry Gulyard, Jr. v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: January 21, 2021
• Docket: 2019 SC 0007
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JANUARY 21, 2021 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2019-SC-0007-MR

HARRY GULYARD, JR. APPELLANT

ON APPEAL FROM HARDIN CIRCUIT COURT V. HONORABLE KEN M. HOWARD, JUDGE NO. 16-CR-00694

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART, VACATING IN PART, AND REMANDING

A Hardin County jury found Harry Gulyard, Jr. guilty of operating a

motor vehicle under the influence of alcohol, aggravated, fourth offense and

first degree persistent felony offender. Gulyard was sentenced to twenty years

in prison. This appeal followed as a matter of right. See KY. CONST. § 110(2)(b).

Having reviewed the record and the arguments of the parties, we hereby affirm

in part and vacate in part the judgment of the Hardin Circuit Court and

remand this case to the Hardin Circuit Court for entry of a new judgment in

conformity with this Opinion.

I. BACKGROUND

On August 2, 2016, Gulyard drank at least a 12-pack of beer and then

drove his wife’s metallic-colored Chevy Silverado 1500 to the FiveStar gas

1 station near his home. Along the way, he parked his wife’s truck on top of a

rock wall and proceeded the rest of the way to the gas station on foot.

Meanwhile, Virgil Zicari went to the FiveStar to use the restroom and get a

drink. Zicari parked his metallic-colored Chevy Duromax 2500 diesel pickup

truck at a gas pump when he went inside the gas station and left the keys in

the truck. While Zicari was inside the FiveStar, Gulyard arrived there. Gulyard

went in the gas station and paid for five dollars in gas. He then put gas into

Zicari’s truck, got into the truck, and drove away. A short time later Gulyard

was found driving Zicari’s truck.

When police officers stopped Gulyard, they observed that he had

bloodshot eyes, slurred speech, was unsteady on his feet, and smelled of

alcohol. Officers arrested Gulyard and transported him to the Elizabethtown

Police Department. At the police department, Gulyard submitted to an alcohol

breath test using an instrument called an Intoxilyzer 8000. The Intoxilyzer

showed that Gulyard had a breath alcohol content of 0.156.

On September 8, 2016, a Hardin County Grand Jury returned an

indictment charging Gulyard with theft by unlawful taking, over $10,000,

operating a motor vehicle under the influence of intoxicants, aggravated, fourth

offense, operating a motor vehicle on a suspended license, and first degree

persistent felony offender. Gulyard was arraigned on those charges in the

Hardin Circuit Court on September 13, 2016. His case was set for a pretrial

conference on October 11, 2016.

2 At the October 11, 2016, pretrial conference, defense counsel indicated

that he was still waiting to receive some documents from the Commonwealth

but that there were no discovery issues to discuss. Gulyard’s case was then set

for trial on February 27, 2017 with a pretrial conference set on February 21,

2017. On February 21, 2017, defense counsel stated the defense was ready to

go to trial and there were no outstanding issues to discuss; however, the

Commonwealth acknowledged it was still working to obtain records pertaining

to the breathalyzer. Due to a conflict with the trial court’s schedule, Gulyard’s

trial was moved to April 17, 2017, with a pretrial conference set on April 11,

2017.

On April 11, 2017, the Commonwealth moved to continue the trial to

April 19, 2017, as its primary police officer witness was scheduled to be in

training on April 17. Defense counsel informed the trial court he was scheduled

to be in court in another county on April 19 and asked the trial court to begin

the trial on April 20. After a bit of discussion regarding the number of trials

scheduled in the trial court, the parties and the court agreed to begin the trial

on April 20, 2017. No discussion of discovery issues occurred on this date.

The parties next appeared in court on April 20, 2017, the day the jury

trial was scheduled to begin. Upon entering the courtroom, Gulyard claimed

that defense counsel who was present with him and appeared with him every

time he had been in court, was not his attorney. Gulyard claimed two other

attorneys from the Department of Public Advocacy had been appointed to

represent him, and that he did not want trial to go forward with the defense

3 counsel who was present representing him. The trial court explained that

Gulyard was not entitled to choose his appointed attorney and that the current

attorney was both experienced and capable.

After this initial conversation, defense counsel moved for a continuance

“to ensure that [Gulyard] was comfortable.” Counsel argued several bases for a

continuance of the trial to the trial court, but Gulyard only argues one to this

Court. Specifically, on appeal Gulyard argues that the trial court erred in

denying his motion to continue the trial based upon the failure to turn over the

Intoxilyzer maintenance and service records until shortly before trial. To the

trial court, Gulyard argued that the Intoxilyzer records were critical to the case

because that instrument established that Gulyard’s breath alcohol content was

.156, which subjected him to an aggravated penalty. The trial court denied

Gulyard’s motion finding that the records were regularly kept and available

upon request and were not required for any foundational purpose.1

Gulyard’s case proceeded to trial on its scheduled date. The

Commonwealth dismissed the operating a motor vehicle on a suspended

license charge without prejudice. The jury found Gulyard not guilty of the theft

charge but guilty of both the operating a motor vehicle while intoxicated charge

and the persistent felony offender charge. The jury recommended a sentence of

twenty years in prison, and the trial court followed that recommendation. The

1 It is unclear how the trial court concluded that the Intoxilyzer records were available to defense counsel upon request, as Gulyard did request them from the Commonwealth’s Attorney and did not receive them until only a few days before trial.

4 trial court’s judgment included a section entitled “Directions for Payment of

Restitution.” This section states, “As specified in KRS2 532.032 and KRS

532.033, Defendant shall pay restitution pursuant to these Conditions:

Restitution shall be paid through the Circuit Court Clerk with a 5% service fee

for the Benefit of Dale Crowder.”3 Dale Crowder is not mentioned anywhere else

in the trial court record.

II. ANALYSIS

Gulyard alleges two errors by the trial court. First, Gulyard argues the

trial court erred in denying his motion for a continuance of the jury trial.

Second, Gulyard argues the trial court’s restitution order in its judgment was a

clerical error that should be vacated. We will address each in turn.

A. The trial court did not abuse its discretion in denying Gulyard’s motion to continue the trial.

Gulyard’s first argument on appeal is that the trial court abused its

discretion when it denied his motion to continue made on the morning of the

first day of his jury trial. This issue was preserved by his oral motion.

Motions for a continuance are governed by RCr4 9.04 which permits a

trial court to grant a continuance “upon motion and sufficient cause shown by

either party.” The trial court has wide discretion when deciding whether to

grant a motion for a continuance. Hilton v. Commonwealth, 539 S.W.3d 1, 10–

2 Kentucky Revised Statutes. 3 The judgment also included an address for Crowder, but we have not included it out of respect for his privacy. 4 Kentucky Rules of Criminal Procedure.

5 11 (Ky. 2018). “[T]he denial of a motion for a postponement or continuance

does not provide grounds for reversing a conviction ‘unless that discretion has

been plainly abused and manifest injustice has resulted.’” Bartley v.

Commonwealth, 400 S.W.3d 714, 733 (Ky. 2013) (quoting Hudson v.

Commonwealth, 202 S.W.3d 17, 22 (Ky. 2006)). The question of whether a

motion for a continuance should be granted is determined by the “unique facts

and circumstances” of the case. Hilton, 539 S.W.3d at 11. This Court will

determine the trial court abused its discretion if its decision was “arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Id. at 7.

In exercising its discretion, the trial court must take into account certain

factors. Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991),

overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky.

2001). The trial court must consider the: 1) length of delay; 2) number of

previous continuances; 3) inconvenience to parties, witnesses, counsel, and the

court; 4) complexity of the case; 5) availability of other competent counsel; 6)

whether the delay is purposeful or the movant caused the need for the delay;

and 7) whether a denial of the continuance would lead to identifiable prejudice.

Id. An analysis of the Snodgrass factors shows the trial court did not abuse its

discretion when it denied the motion for a continuance.

In looking at length of delay, Gulyard did not request a specific amount

of time for the continuance. As for previous continuances, Gulyard’s trial had

previously been continued two times, one due to a scheduling conflict with the

trial court and the other due to a scheduling conflict of a witness for the

6 Commonwealth. Neither of those previous continuances were requested by

Gulyard or caused by him.

Regarding inconvenience, the trial did not involve any expert witnesses or

witnesses who had to travel from out of town to be present. However, the trial

court was clear on the record that its trial calendar was very full. The court

forwent the opportunity to try a different case that week and had made

scheduling accommodations to ensure Gulyard’s case could be tried. Further,

Gulyard’s counsel had assured the trial court just the week prior that he would

be ready to try the case on April 20 if the court would set the case for trial on

that date, despite knowing he did not yet have the Intoxilyzer records. The trial

court relied on that assurance in fitting the trial into its busy calendar. Finally,

the continuance was requested on the morning of the first day of trial, when

the jury pool was already present in the courthouse, and any continuance

would have caused inconvenience for those citizens.

Turning to complexity, Gulyard’s case was not factually or legally

complex. The jury heard less than three-and-one-half hours of testimony

during the guilt phase and deliberated on only two counts of the indictment

during that phase. Next, availability of other competent counsel is not

applicable in this case, as Gulyard’s attorney appeared competent and was

otherwise prepared for trial.

It does not appear that Gulyard or his counsel purposefully caused the

delay. However, his counsel’s failure to diligently pursue the Intoxilyzer records

or alert the trial court that the Commonwealth’s failure to produce them would

7 impact his case weighs against granting the requested continuance. We

acknowledge that in finding the Intoxilyzer records were not required for any

foundational purpose, the trial court seemed to misapprehend the purpose for

which Gulyard hoped to use the records, that is, to undermine the reliability of

the results of the Intoxilyzer. However, the facts remain that at two pretrial

conferences, the trial court asked the parties if there were any outstanding

discovery issues that needed to be discussed. Although the Intoxilyzer records

were mentioned by the parties, at each pretrial conference Gulyard’s counsel

answered the trial court’s question in the negative.

Finally, we turn to whether a denial of the continuance led to any

identifiable prejudice. “Identifiable prejudice is especially important.

Conclusory or speculative contentions that additional time might prove helpful

are insufficient. The movant, rather, must be able to state with particularity

how his or her case will suffer if the motion to postpone is denied.” Bartley, 400

S.W.3d at 733 (citing Hudson, 202 S.W.3d at 23). Aside from asserting the

importance of the Intoxilyzer maintenance records to the case, Gulyard only

argued that he wanted an expert to look at the maintenance records to “see if

they were correct.” He gave no reason to the trial court to believe that the

maintenance records were incorrect or even to suspect that the records might

be incorrect. This assertion is not specific enough to weigh in favor of granting

Gulyard’s requested continuance.

Upon reviewing all the Snodgrass factors, we hold that the trial court did

not abuse its discretion in denying Gulyard’s motion to continue the jury trial

8 in his case. It was reasonable for the trial court to find that the Snodgrass

factors weighed in favor of denying the motion to continue.

B. The trial court’s restitution order appears to be a clerical error and is vacated.

We next turn to Gulyard’s argument that the portion of the trial court’s

judgment ordering him to pay restitution to Dale Crowder was a clerical error.

Crowder was not a witness and his name is found nowhere else in the trial

court record. The Commonwealth acknowledges the restitution order appears

to be a clerical error and agrees that portion of the judgment should be

vacated. Accordingly, we vacate the portion of the trial court’s judgment

ordering Gulyard to pay restitution to Dale Crowder.

III. CONCLUSION

For the reasons set forth above, we hereby vacate the portion of the

judgment of the Hardin Circuit Court relating to restitution but affirm the

remainder of that judgment. The case is remanded to the Hardin Circuit Court

for entry of a new judgment in conformity with this Opinion.

All sitting. All concur.

9 COUNSEL FOR APPELLANT:

Erin Hoffman Yang Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel J. Cameron Attorney General of Kentucky

Todd Dryden Ferguson Assistant Attorney General

Micah Brandon Roberts Assistant Attorney General