Widner v. Commonwealth

Decision Date03 February 2023
Docket Number2021-CA-1265-MR
CourtKentucky Court of Appeals



No. 2021-CA-1265-MR

Court of Appeals of Kentucky

February 3, 2023



BRIEFS FOR APPELLANT: Roy Alyette Durham, II Frankfort, Kentucky

BRIEF FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky




Johnnie Widner appeals as a matter of right from the Letcher Circuit Court's final judgment following his conviction at a jury trial. The trial court sentenced Widner to an enhanced sentence of ten years' imprisonment after he was found guilty of being a convicted felon in possession of a handgun and of being a second-degree persistent felony offender. After a thorough review of the facts and the law, we affirm.


I. Background

On September 19, 2020, Trooper Jarrett Fields of the Kentucky State Police received a radio call from dispatch regarding the presence of a suspicious vehicle at Gordon Park in Letcher County. When the trooper arrived to investigate, he saw a vehicle matching the description given to the dispatcher. The vehicle, a silver passenger car, was parked with its left turn signal on, the driver's door open, and a person's legs jutting out from the open door. Trooper Fields approached the vehicle and found Widner asleep in the driver's seat. No other individuals were in the vehicle, and the vehicle's keys were in the ignition.

After rousing Widner and conversing with him, Trooper Fields ordered Widner to exit the vehicle. Trooper Fields eventually conducted a probable-cause search of the vehicle[1] and found a Smith &Wesson .32 caliber revolver, loaded with two rounds, in the unlocked glove compartment. Upon transporting Widner to the detention center based on what he would later describe as "other charges," the trooper learned Widner was a convicted felon. While Widner was cooperative throughout the encounter with Trooper Fields, he did not admit to owning the vehicle or the handgun. The vehicle had valid registration tags but was not registered in Widner's name.


Next, the Letcher County grand jury indicted Widner on charges of being a convicted felon in possession of a handgun[2] and being a first-degree persistent felony offender (PFO).[3] At trial, the Commonwealth presented testimony from Trooper Fields which conformed to the aforementioned narrative. The Commonwealth also presented testimony from a deputy circuit clerk who stated Widner had been previously convicted in Letcher Circuit case number 06-CR-00207. The judgment in that case, entered on July 30, 2008, sentenced Widner to a five-year sentence, probated for five years. Furthermore, this probation period was to be served consecutively to Widner's conviction in Letcher Circuit case number 06-CR-00206; the judgment in 06-CR-00207 specified that its five-year probationary period would begin "when defendant is released from prison by parole or if conviction is reversed on appeal in 06-CR-206." (Record (R.) at 32.) Finally, the Commonwealth presented testimony from a probation and parole officer who testified that Widner served out his sentence in 06-CR-00206 on April 2, 2012, and he would have begun serving his five-year probation period in 06-CR-00207 the following day. The probation and parole officer then testified that Widner had a probation revocation hearing in 2015 due to an absconder warrant,


after which he was reinstated to probation. According to the officer, Widner then served another four years on probation, which finally ended on May 23, 2019.

After hearing the evidence in the case, the jury convicted Widner of being a convicted felon in possession of a handgun and of being a second-degree PFO and recommended a sentence of ten years' imprisonment. The trial court sentenced Widner in accordance with the jury's recommendation. This appeal followed.

II. Analysis

Widner presents four separate issues on appeal. First, he argues the trial court erred when it failed to conduct a proper Faretta[4] hearing. Second, Widner contends the trial court erroneously failed to grant a mistrial when Trooper Fields testified that Widner was taken to the detention center on "other charges." Third, Widner argues Trooper Fields improperly commented on his pre-arrest silence, which denied him a fair trial. Fourth, and finally, Widner contends the trial court erroneously failed to grant a directed verdict. We will consider each issue in turn.

Widner first argues that the trial court erroneously failed to explore the appropriate parameters for hybrid counsel or to issue specific warnings or findings as required in a proper Faretta hearing. In the months leading up to trial,


despite being represented by appointed counsel, Widner habitually filed pro se motions with the trial court. Eventually, the Commonwealth objected to what it termed an "onslaught of far too many Pro Se Motions to list" (R. at 11) and moved the trial court to conduct a Faretta hearing.

In the pretrial hearing on the Commonwealth's motion, Widner's counsel opened the discussion by saying, "We're here on what looks like a Faretta hearing?" He continued by stating that Widner wanted to continue filing his motions and that Faretta may be implicated. Counsel then outlined Widner's three possibilities for representation: Widner could retain his appointed counsel, he could represent himself pro se, or he could have hybrid representation. Finally, Widner's counsel informed the court that Widner wanted to keep his appointed counsel, but he also wanted to be able to file his motions. The Commonwealth then expressed its own concerns, noting that Widner may not understand that he would be held to the standards of an attorney if he were to represent himself pro se. The Commonwealth also reiterated concerns about the confusion sown by Widner's pro se motion practice, pointing out that it had received the same motion filed multiple times within the span of just a few days.

In its resolution of the matter, the trial court told Widner that it wanted him to take an active role in his own defense, but all motions should come through one point to prevent confusion. The court asserted it "can't have motions coming


from all directions, and [defense counsel] is going to be that point." For future motions, the court asked Widner to "get together what you feel like needs to be done, and you send it to [defense counsel]." Widner responded, "I agree to that." The court then told Widner that defense counsel would "make the decision whether or not it's a valid motion, if it is a valid motion, the form and format it needs to be put into, and he will file it with the court." Again, Widner agreed with the court. At this point, defense counsel attempted to clarify whether this was going to be a hybrid counsel scenario. The trial court answered that it wanted defense counsel "to review everything and counsel with him, and then you all make the decision together as to what is properly before the court."

Concurrent with the constitutional right to counsel in criminal cases, the United States Supreme Court held in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), that "forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." Hill v. Commonwealth, 125 S.W.3d 221, 225 (Ky. 2004), holding modified by Depp v. Commonwealth, 278 S.W.3d 615 (Ky. 2009) (quoting Faretta, 422 U.S. at 817, 95 S.Ct. at 2532). The federal constitution gives a criminal defendant the right to counsel or to proceed pro se; however, "[t]he wording of Section 11 of the Kentucky Constitution, unlike that of the similar provision which appears in the United States Constitution, guarantees a criminal defendant the right: (1) to


represent himself pro se; (2) to be represented by counsel; or (3) to have hybrid representation." Deno v. Commonwealth, 177 S.W.3d 753, 757 (Ky. 2005) (citations omitted).

Procedurally, "[w]hen a defendant makes a request to proceed pro se or for hybrid representation, the principles of Faretta become applicable." Id. at 758 (citation omitted). The request to proceed pro se or by hybrid counsel must be unequivocal. Moore v. Commonwealth, 634 S.W.2d 426, 430 (Ky. 1982); see also Deno, 177 S.W.3d at 757-58. After receiving such...

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