RENDERED: FEBRUARY 5, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1725-MR

ERIK M. DOLENTE APPELLANT

APPEAL FROM CARROLL CIRCUIT COURT

v. HONORABLE R. LESLIE KNIGHT, JUDGE

ACTION NO. 11-CR-00099

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

VACATING AND REMANDING

**   **  **

BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.

KRAMER, JUDGE: In Kentucky, criminal defendants have the right to counsel at 

probation revocation proceedings. Kentucky Revised Statutes (KRS) 533.050(2); 

Miller v. Commonwealth, 329 S.W.3d 358 (Ky. App. 2010). Criminal defendants

likewise have the right to counsel appointed for them at public expense during 

those proceedings, provided they qualify as “needy.” KRS 31.110(2)(a). Criminal 
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defendants also possess the right to reject representation by counsel and proceed 

pro se, so long as they are given a Faretta1 hearing, acknowledging that the

rejection is made knowingly, intelligently, and voluntarily. Depp v. 

Commonwealth, 278 S.W.3d 615, 617 (Ky. 2009).

These rights are at issue in this appeal. Specifically, Erik M. Dolente 

asserts the Carroll Circuit Court misapplied the law in determining he was not 

“needy” and therefore did not qualify for appointed counsel during his probation 

revocation proceedings. The circuit court further erred, he asserts, in determining 

that his subsequent failure to hire private counsel effectively amounted to a 

knowing, intelligent, and voluntary rejection of his right to counsel during those 

proceedings. Accordingly, he argues, the circuit court’s October 16, 2019 order 

revoking his probation – which it entered after requiring him to represent himself –

should be set aside. Upon review, we agree. We therefore vacate and remand.

The focus of this matter is not whether Dolente, prior to the 

revocation of his probation, adduced substantial evidence supporting that he was 

“needy” within the meaning of KRS Chapter 31. He produced little evidence of 

anything in that vein prior to his revocation, but the issue is why. In other words, 

the central issue presented in this appeal involves the correct procedure for 

determining whether a defendant qualifies as “needy” within the meaning of KRS 

 

1 Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
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Chapter 31. As such, we will briefly review the applicable rules before discussing 

the facts of this case.

To prove the legal status of “needy,” persons over eighteen years of 

age (such as Dolente) are required to demonstrate “at the time his or her need is 

determined” that they are “unable to provide for the payment of an attorney and all 

other necessary expenses of representation[.]” KRS 31.100(5)(a). As to how this 

is accomplished, KRS 31.120 provides in relevant part,

(1) (a) The determination of whether a person covered by 

KRS 31.110 is a needy person shall be deferred no later 

than his or her first appearance in court or in a suit for 

payment or reimbursement under KRS 31.211, 

whichever occurs earlier.

(b) The court of competent jurisdiction in which the case 

is pending shall then determine, with respect to each step 

in the proceedings, whether he or she is a needy person. 

However, nothing shall prevent appointment of counsel 

at the earliest necessary proceeding at which the person is 

entitled to counsel, upon declaration by the person that he 

or she is needy under the terms of this chapter. In that 

event, the person involved shall be required to make 

reimbursement for the representation if he or she later is

determined not a needy person under the terms of this 

chapter.

(c) A person who, after conviction, is sentenced while 

being represented by a public defender shall continue to 

be presumed a needy person, and the court, at the time of 

sentencing, shall enter an Order In Forma Pauperis for 

purposes of appeal without having to show further proof 

of continued indigency, unless the court finds good cause 

after a hearing to determine that the defendant should not 

continue to be considered an indigent person.
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(2) In determining whether a person is a needy person 

and in determining the extent of his or her and, in the 

case of an unemancipated minor under KRS 

31.100(5)(c), his or her custodial parents’ or guardians’

inability to pay, the court concerned shall consider such 

factors as: 

(a) Income;

(b) Source of income;

(c) Property owned;

(d) Number of motor vehicles owned and in working 

condition;

(e) Other assets;

(f) Outstanding obligations;

(g) The number and ages of his or her dependents;

(h) The poverty level income guidelines compiled and 

published by the United States Department of Labor;

(i) Complexity of the case;

(j) Amount a private attorney charges for similar 

services;

(k) Amount of time an attorney would reasonably spend 

on the case; and

(l) Payment of money bail, other than a property bond of 

another, whether deposited by the person or another, to 

secure the person's release from confinement on the 

present charge of which he or she stands accused or 

convicted; and
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(m) Any other circumstances presented to the court 

relevant to financial status.

Release on bail, or any other method of release provided 

in KRS Chapter 431, shall not necessarily prevent him or 

her from being a needy person. In each case, the person

and, if an unemancipated minor under KRS 31.100(5)(c) 

and (d), his or her custodial parent or guardian, subject to 

the penalties for perjury, shall certify by affidavit of 

indigency which shall be compiled by the pretrial release 

officer, as provided under KRS Chapter 431 and 

Supreme Court Rules or orders promulgated pursuant 

thereto, the material factors relating to his or her ability 

to pay in the form the Supreme Court prescribes.

(Emphasis added.)

With respect to the “affidavit of indigency” described in the final 

paragraph of the foregoing, an example of what the affidavit must state “at a 

minimum” is provided in KRS 31.120(3). As set forth in that provision, the 

example reflects the defendant must disclose the following information:

• Employment status;

• Amount of weekly income;

• Amount of assistance received from welfare, food stamps, Social Security, 

workers’ compensation, unemployment, retirement disability, or “other”;

• Property, including a description of the property and its value;

• Any dependents, including their names, ages, and degree of relation; and
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• Any outstanding obligations, describing to whom they are owed, and in what 

amount.

As emphasized, KRS 31.120(2) requires that “[i]n each case, the 

person” requesting appointed counsel, “subject to the penalties for perjury, shall 

certify by affidavit of indigency which shall be compiled by the pretrial release 

officer . . . the material factors relating to his or her ability to pay[.]” And, there 

are at least three reasons for that requirement in each case. First, the exercise of 

completing the affidavit of indigency with the assistance of court personnel (i.e., 

“compiled by the pretrial release officer”) effectively informs the defendant of 

what most of the “material factors” are “relating to his or her ability to pay” for 

purposes of supporting their claim. Indeed, what is bulleted above regarding the 

substance of what the affidavit must provide largely tracks the “material factors” 

implicated in KRS 31.120(2)(a)-(g), of which a defendant would have personal 

knowledge. 

Second, by requiring the disclosure of monetary amounts and values 

relative to income and outstanding obligations, the affidavit requirement 

underscores that an assessment of neediness requires specificity. And third, a 

completed affidavit of indigency, presented to the court concerned with making the 

neediness determination, ensures – as the preamble of KRS 31.120(2) requires –

that the court “shall consider such factors” in its decision.
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We now turn to the relevant facts of this case. For purposes of KRS 

31.120(1)(a), Dolente made his “first appearance” in Carroll Circuit Court on 

August 26, 2019,2following his arrest for allegedly violating his probation. 

Dolente, accompanied by a public defender, was called to stand at a lectern before 

the bench, and the following colloquy ensued:

COURT: Good morning, sir. You’re Erik Dolente?

DOLENTE: Yes, ma’am.

PUBLIC DEFENDER: Judge, this is a first call on 

probation violation.

COURT: Mister Dolente, do you own any real estate?

DOLENTE: Yes, ma’am.

COURT: You do own real estate? Describe that for me 

please.

DOLENTE: I own a single-wide trailer and a piece of 

land.

COURT: How much acreage do you have?

DOLENTE: About three or four acres.

PROSECUTOR: Judge, I can tell the court that prior to 

Mister Dolente, we’ve had an outstanding bench warrant 

for his arrest as an absconder since I think 2015, and 

during the last three or four years I have received phone 

 

2 Prior to August 26, 2019, Dolente appeared before the Carroll Circuit Court in July 2015, due 

to another probation violation for which he ultimately served a sixty-day term of imprisonment 

as a sanction. Over the course of that earlier matter, it was determined that Dolente qualified for 

appointed counsel consistently with KRS Chapter 31.
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calls from a private firm, um, down around Nashville 

about him, um, who represented him on other matters. 

But, he had a private attorney there.

COURT: And according to this, he has had a “Bourne”[3]

at one time. Do you intend to hire Mister Bourne again, 

or a private attorney?

DOLENTE: It depends on what the situation is, ma’am.

COURT: Well, you’re here on a probation violation.

 

DOLENTE: Okay.

COURT: You need to hire your own attorney.

DOLENTE: Okay.

COURT: How much is your property worth?

DOLENTE: I’m not sure.

COURT: Do you owe any money on it?

DOLENTE: No.

COURT: And do you own vehicles?

DOLENTE: Yes, ma’am.

COURT: I’ll continue this until September 9th.

PUBLIC DEFENDER: Judge, with regard to Mr. 

Dolente’s case, as you can see this is a 2011 case. I want 

to ask the court to extend this time with regard to 

probation until such time as a reasonable time period 

until he can have a hearing on that.

 

3 The record indicates attorney Edward Bourne of Owenton, Kentucky, last represented Dolente 

in 2012.
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COURT: I’ll extend the probation, continue it until 

September 9th. You need to hire your own counsel and 

you’ll be back here that day, sir. Thank you.

Following this colloquy, the circuit court entered a handwritten order 

on the docket page associated with Dolente’s hearing, stating, “absconder,” “3-4 

acres Mobile Home No debt,”4“need to hire counsel extend probation,” and “con’t 

9.9.19”.

On September 9, 2019, Dolente appeared once again before the circuit 

court, without counsel. There, he explained he had not yet been able to hire 

counsel because he was “working on the financing part of it.” In response, the 

circuit court extended his probation and granted him a continuance until October 7, 

2019, adding, “That’s it. We’re going to have a hearing on that day whether 

you’re represented by counsel or not.”

On the morning of October 7, 2019, Dolente once again appeared

before the circuit court without counsel. He and the circuit court then had the 

following discussion:

COURT: Mister Dolente, have you hired counsel, sir?

DOLENTE: No, I have not been able to.

COURT: Alright. So, we’re here on a revocation 

hearing, and this is the third or fourth time we’ve been 

 

4 Dolente did not indicate he had “no debt.” As indicated above, he only stated during the 

August 26, 2019 colloquy that he did not owe money with respect to his property.
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here. So, you want to have a hearing, or you want to 

admit?

DOLENTE: I’m not sure what you’re asking.

COURT: Well, your options are to have a hearing, or 

you can admit to the violations.

DOLENTE: I guess I’ll have a hearing, I guess. I don’t 

know.

The circuit court scheduled a revocation hearing for Dolente to be 

held later that afternoon. Shortly before that hearing, however, the prosecutor 

informed the court that Dolente had made another request for court-appointed 

counsel; to which the circuit court responded, “We’ve been through this so many 

times.” Shortly thereafter, when Dolente was brought to the courtroom for his 

hearing, the court told him:

Alright, Mister Dolente. The Commonwealth advises me 

that she had spoken with you and you still think that I 

should provide you with counsel. You do not meet the 

requirements, sir, for free counsel, so I’m not appointing 

a public defender. We’re here for a hearing. 

A revocation hearing followed, lasting approximately fifteen minutes.

Dolente called no witnesses and asked no substantive questions. On October 16, 

2019, the circuit court entered its final order revoking Dolente’s probation.

On October 31, 2019, Dolente then moved to proceed on appeal in 

forma pauperis, explaining in his motion:
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Mr. Dolente similarly requested court appointed counsel 

in his recent probation violation, but the Court denied 

that request due to Mr. Dolente’s statements regarding 

property he owns. Mr. Dolente misunderstood the 

meaning of “real property” and denies that he owns any 

land. Mr. Dolente’s current financial situation is 

accurately reflected in the Attached Financial Statement, 

Affidavit of Indigency, and Request for Counsel. See

Exhibit 1.

Mr. Dolente believes that his current financial situation 

qualifies him for court-appointed counsel and 

respectfully requests this Court to allow him to proceed 

in forma pauperis in this action. Should this Court need 

additional information in order to clarify the 

discrepancies between Mr. Dolente’s statements to the 

Court and the attached written representations regarding 

his current financial situation and assets, Mr. Dolente 

requests a hearing before this Court.

As he represented, Dolente included with his motion a “Financial 

Statement, Affidavit of Indigency, and Request for Counsel,” or “AOC-350” – a 

form that delineates the material averments required by KRS 31.120(3), and which 

is promulgated by the Administrative Office of Courts (AOC) to facilitate 

compliance with KRS Chapter 31. In his completed AOC-350, Dolente set forth 

the following salient averments: (1) he had been unemployed and had received no 

income since August 15, 2019; (2) the only property he owned consisted of a 

single-wide trailer worth $7,500, and a truck worth $1,200; and (3) his total 

monthly expenses – which included child support for his three children – was 

approximately $1,050. 
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On November 13, 2019 – approximately one month after complaining 

it had already denied Dolente’s requests for an appointment of a public defender 

“so many times” – the circuit court granted Dolente’s motion to proceed in forma 

pauperis, without the necessity of a hearing. This appeal followed. 

As an aside, there is no dispute the circuit court understood during its 

August 26, 2019 colloquy, set forth above, that Dolente had sufficiently made a 

“declaration,” for purposes of KRS 31.120(1)(b), that he was “needy” and required 

appointed counsel. There is no dispute that, in recognizing his declaration, the 

circuit court made a “determination,” for purposes of KRS Chapter 31, that 

Dolente was ineligible for appointed counsel. And, there is no dispute that Dolente 

did not complete – and that the circuit court never considered in conjunction with 

any of its pre-revocation determinations – an “affidavit of indigency” from Dolente 

as described in the final paragraph of KRS 31.120(2). 

Rather, the circuit court’s August 26, 2019 determination that Dolente 

was not legally “needy,” which it reiterated on October 7, 2019, was based entirely 

upon: (1) the fact that Dolente had previously hired private counsel; and (2) 

Dolente’s vague, informal, and unsworn statements that he owned a single-wide 

trailer, three or four acres, and “vehicles” of undetermined value.
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To be clear, the previous hiring of private counsel is not a factor,

material or otherwise, in determining whether a defendant is “needy” within the 

meaning of KRS Chapter 31. See KRS 31.110(3).

As for Dolente’s statements regarding his trailer, acreage, and 

“vehicles,” the Commonwealth points out that the preamble of KRS 31.120(2) 

(i.e., “the court concerned shall consider such factors as”) did not require the 

circuit court to make findings of fact regarding every factor specified in KRS 

31.120(2)(a)-(m) in reaching its ultimate conclusion regarding whether Dolente 

was “needy.” The Commonwealth notes that pursuant to KRS 31.120(2)(c) and 

(d), real property and vehicle ownership are among the “material factors” relevant 

to determining whether a defendant is “needy.” Further, the Commonwealth points 

out that the circuit court “considered” these factors during its August 26, 2019 

colloquy with Dolente.

To be sure, the Commonwealth is correct that the phrase, “the court 

concerned shall consider such factors as,” is not a mandate for “the court 

concerned” with making a neediness determination to make explicit findings 

regarding every factor specified in KRS 31.120(2)(a)-(m). But, that phrase is not a 

license for the circuit court to ignore any of those factors, either. Here, the circuit 

court did not consider whether Dolente had an income. It did not consider his 

outstanding obligations. Indeed, it only considered information relevant to the 
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factors of KRS 31.120(2)(c) and (d), and only to a limited extent: Following its 

colloquy with Dolente, the circuit court did not have information regarding the 

value of Dolente’s property.

After recognizing Dolente had effectively requested appointment of 

counsel, it was incumbent upon the circuit court to verify the specifics of Dolente’s 

neediness by requiring him to complete an affidavit of indigence. Indeed, the 

circuit court’s “about-face” regarding Dolente’s neediness – as reflected in the 

November 13, 2019 order it entered after Dolente submitted his affidavit of 

indigency – underscores precisely why an informal colloquy is not an adequate or 

legally tenable substitute.

Considering the foregoing, Commonwealth’s remaining argument on 

appeal, which is that Dolente effectively “waived” his right to counsel during the 

revocation proceedings by failing to hire private counsel, is at best premature. In 

any event, however, it lacks merit. As stated in Tinsley v. Commonwealth, 185 

S.W.3d 668, 675 (Ky. App. 2006), even “if the findings do not support indigency, 

and the defendant persists in not employing counsel, he shall be deemed to have 

waived counsel, whereupon he is entitled to the protections of Faretta.” 

Specifically,

[i]n Kentucky, a trial court is under an affirmative duty to 

hold a Faretta hearing when an accused attempts to make 

an absolute or limited waiver of the right to counsel. Hill 

v. Commonwealth, 125 S.W.3d 221, 226 (Ky. 2004). 
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The trial court has three Faretta duties. Id. First, the 

trial court must conduct a hearing in which the defendant 

testifies as to whether the waiver is voluntary, knowing, 

and intelligent. Id. Second, the trial court must warn the 

defendant in the hearing of the benefits relinquished and 

the perils arising from the waiver of counsel. Id. Finally, 

the trial court must make a finding on the record that the 

waiver is voluntary, knowing, and intelligent. Id. The 

failure to comply with these requirements constitutes 

“structural” error to which harmless error analysis is 

inapplicable. Id. at 228.

Tinsley, 185 S.W.3d at 674-75.

Here, the record is void of a Faretta-type hearing and the attendant 

duties. Thus, no waiver occurred.5

In short, we are unable to meaningfully review whether Dolente was 

“needy” and thus entitled to appointed counsel to protect his due process rights 

during his revocation proceedings; but, we can determine that as a matter of law 

that Dolente did not knowingly waive his right to counsel. We therefore VACATE 

the order of the Carroll Circuit Court revoking Dolente’s probation and REMAND 

 

5 As it did in Tinsley, the Commonwealth invokes the case of Greeley v. Commonwealth, 825 

S.W.2d 617 (Ky. App. 1992), for the proposition that a defendant may nevertheless waive the 

right to counsel through conduct. Given the disparities between Greeley and the case at bar, we 

do not find that case dispositive. In Greeley, the defendant, an attorney, had been granted 

numerous continuances before trial. He had also been represented by a series of attorneys. On 

the second day of trial he asked for a continuance to have an attorney appointed for him. The 

court refused. A subsequent conviction was upheld with the court holding that the defendant had 

ample time to obtain counsel and that his failure to do so constituted a waiver. The court noted 

that the defendant was playing a “cat and mouse” game to delay trial in the matter. Moreover, 

the record clearly demonstrated that Greeley was not indigent, having been possessed of 

“significant assets in this state in the form of common stock and natural gas[.]” Id. at 620.
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for a proper determination of whether he was entitled to appointed counsel; a new 

revocation hearing; and any further proceedings not inconsistent with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Emily Holt Rhorer

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

James C. Shackelford

Assistant Attorney General

Frankfort, Kentucky