Gulyard v. Commonwealth, 012121 KYSC, 2019-SC-0007-MR

Docket Nº2019-SC-0007-MR
Party NameHARRY GULYARD, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
AttorneyCOUNSEL 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
Case DateJanuary 21, 2021
CourtSupreme Court of Kentucky

HARRY GULYARD, JR. APPELLANT

v.

COMMONWEALTH OF KENTUCKY APPELLEE

No. 2019-SC-0007-MR

Supreme Court of Kentucky

January 21, 2021

NOT TO BE PUBLISHED

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

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

MEMORANDUM OPINION

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 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.

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 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...

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