Opinion
NO. 2013-CA-001346-MR
02-06-2015
LONNIE SCHOOLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JUDGE
ACTION NO. 12-CR-00012
OPINION
AFFIRMING
BEFORE: MAZE, NICKELL AND STUMBO, JUDGES. STUMBO, JUDGE: Lonnie S. Schooley appeals from the July 2, 2013 final judgment and sentence of imprisonment of the Fayette Circuit Court. That judgment found Schooley guilty of first-degree assault, first-degree wanton endangerment, and tampering with physical evidence. He was sentenced to a total of fourteen years' incarceration. The judgment also denied Schooley's claim for custody credit for time spent on electronic monitoring. This appeal followed.
On October 7, 2011, Schooley left home with prescription medication, $250.00 in cash, and a handgun. After arriving at Paradise City, a gentleman's club/strip club in downtown Lexington, Schooley ordered a beer and seated himself at a table near the stage. Schooley then got into a verbal altercation with waitress Teresa Gray. Shortly thereafter, Schooley got into a second verbal altercation at the bar with the bartender. After Schooley returned to his table, the club manager saw that Schooley was seated at a table with a gun. Hoping to sneak behind Schooley and acquire the gun, the manager moved towards the table. Schooley then picked up the gun and pointed it at Turner. Schooley fired the gun and then ran from the club. The bullet from Schooley's gun struck a wall. Gray also fled the club, ran into a nearby alley, and hid in some bushes. Schooley discovered Gray and repeatedly struck her in the face and head with his gun. Gray fell to the ground and Schooley kicked Gray in the ribs. Schooley then fled. Gray suffered multiple broken bones on her face, broken ribs, bruised bowels, and had to have one of her eyes replaced with a prosthetic.
Schooley was charged with first-degree wanton endangerment, first-degree assault, second-degree fleeing and evading police, and tampering with physical evidence. A jury trial was held on April 10-11, 2013. Schooley claimed that on the night in question, he began to feel strange after ingesting alcohol, as though he were high. He claimed to have no memory of the events in the club and was unaware of his surroundings until he was fleeing the scene. Schooley further claimed that upon discovering Gray in the alley, he thought he was going to be assaulted, and struck in self-defense.
At the close of trial, the trial court adopted the jury instructions proposed by Schooley. Included therein were instructions on self-protection and an accompanying initial aggressor qualification. Schooley was found guilty of first-degree assault, first-degree wanton endangerment, and tampering with physical evidence. He was sentenced to a total of fourteen years' incarceration. Schooley sought custody credit for time spent on electronic monitoring. This was denied. This appeal followed.
Schooley's first argument on appeal is that the trial court erred when it qualified the self-defense instruction as to the initial aggressor. A defendant can preserve a claim of jury instruction error by any one of three methods: (1) offering a proposed instruction; (2) by motion pointing out the grounds; or (3) by specific objection prior to the jury being instructed. Kentucky Rules of Criminal Procedure (RCr) 9.54(2). Schooley acknowledges that this argument is unpreserved and maintains that it is nonetheless reviewable for palpable error under RCr 10.26. We disagree.
Under palpable error review, reversal is warranted only when a party can show a palpable error which affected his or her substantial rights and resulted in manifest injustice. Wiley v. Commonwealth, 348 S.W.3d 570, 574 (Ky. 2010). Thus, the error must have "so seriously affected the fairness, integrity, or public reputation of the proceeding as to be 'shocking or jurisprudentially intolerable.' " Id. (citation omitted). Despite Schooley's attempt at palpable error review, the Supreme Court of Kentucky has held that parties who challenge their own proposed jury instructions relinquish any form of appellate review. Thornton v. Commonwealth, 421 S.W.3d 372, 377 (Ky. 2013). In Thornton, the Court distinguished between those errors that had been forfeited and those that had been waived or relinquished. Id. In particular, the Court held that defendant Thornton had relinquished any right of appellate review when he "not only failed to preserve the error by making the concern known to the trial court, he invited the error by affirmatively proposing an instruction that contains the very defect he now opposes." Id. In the case presently before us, Schooley proposed the exact language that he now contests. Accordingly, we hold that Thornton is applicable and Schooley's argument is therefore not subject to our review.
Schooley's second, and final, argument to this Court is that he was entitled to credit for time spent on electronic monitoring prior to his trial. In support of his argument, Schooley cites to Kentucky Revised Statutes (KRS) 532.245, which mandates credit for time spent in pretrial home incarceration pursuant to KRS 431.517. After careful consideration, we hold that KRS 532.245 does not extend to time spent on electronic monitoring, when such monitoring fails to rise to the statutory definition of home incarceration.
The language of KRS 532.245 is clear that "[t]ime spent in pretrial home incarceration pursuant to KRS 431. 517 shall be credited against the maximum term of imprisonment assessed[.]" KRS 532.245(1). Home incarceration ordered pursuant to 431.517, is defined as:
the use of a monitoring device approved by the commissioner of the Department of Corrections to facilitate a prisoner's ability to maintain gainful employment or to participate in programs approved as a condition of his or her incarceration, or both, using the person's home for purposes of confinement[.]KRS 532.200(2)(emphasis added). In addition, home incarceration is "subject to conditions imposed by the provisions of KRS 532.200 to 532.250." KRS 431.517(1). Those conditions include the following:
The home incarceree shall be confined to his home at all times except when:KRS 532.220(1). While home incarceration is one form of electronic monitoring, not all electronic monitoring rises to the level of confinement found in home incarceration. For example, electronic monitoring is common in cases which involve a substantial violation of a domestic violence order, in order to record location and movement of repeat offenders. KRS 403.761. This monitoring, however, does not confine the participating party to their home under the conditions of KRS 532.220(1), but instead merely tracks his or her movement. The legislature has also distinguished home incarceration from other forms of electronic monitoring in KRS 431.520, which recognizes that courts may impose various conditions upon a defendant receiving pretrial release. Therein, the trial court is granted the ability to consider both electronic monitoring and home incarceration, a clear indication that the two are not interchangeable. KRS 431.520(5).
(a) Working at approved employment or traveling directly to and from such employment;
(b) Seeking employment;
(c) Undergoing available medical, psychiatric, or mental health treatment or approved counseling and after care programs;
(d) Attending an approved educational institution or program;
(e) Attending a regularly scheduled religious service at a place of worship; and
(f) Participating in an approved community work service program;
In the case before us, the trial court's order setting bond contained the following conditions: no violations of the law; obtain/maintain full-time employment; submit to electronic monitoring; have no contact, directly or indirectly, with the victim or her family; and submit to drug and alcohol testing through pretrial services. The trial court's language is clear that Schooley was ordered only to submit to electronic monitoring, and not home incarceration. If the trial court had intended Schooley to submit to the more restrictive conditions of home incarceration, it would have plainly stated so, in addition to enumerating the specific releases afforded to Schooley. Instead, it appears as though the trial court's primary concern was monitoring Schooley so that he did not seek out the victim. This intent is further indicated by an email filed and entered into the record by Schooley on June 11, 2012. Therein, in response to an inquiry as to whether Schooley may participate in regularly scheduled parental visits, the trial court stated "[y]es, OK with me. My concern is any contact with the victim." We note also that the February 8, 2013 affidavit from pretrial services specifically omitted home incarceration as one of Schooley conditions. Schooley offered no evidence that he was subjected to the restrictive confinement of home incarceration and we can glean none from the record. Thus, we conclude that Schooley was not engaged in a level of electronic monitoring encompassed by KRS 532.200's definition and KRS 431.517's implementation of home incarceration and is therefore not entitled to credit under KRS 532.245.
For the foregoing reasons, the July 2, 2013 final judgment and sentence of imprisonment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky