NOT TO BE PUBLISHED

OPINION

JONES, Judge.

Deonte Simmons appeals from the December 2, 2013, order reinstating judgment of conviction of the Madison Circuit Court. We affirm.

In 2008, Simmons was convicted of first-degree trafficking in a controlled substance and sentenced as a second-degree persistent felon to fifteen years in prison. Because one of Simmons's jurors broke her ankle during an over-night recess, the jury that ultimately found Simmons guilty had only eleven members. Simmons appealed his conviction to this Court and claimed, in relevant part herein, that the eleven-member jury deprived him of his constitutional right to a jury trial. Smith v. Commonwealth, No. 2008-CA-001340-MR, 2011 WL 181299 (Ky. App. 2011). This Court agreed and remanded the matter to the trial court for a hearing on whether Simmons had waived his right to a twelve-person jury. This Court clarified that if the trial court found a valid waiver had taken place, then Simmons's judgment was to be reinstated. However, if the trial court found insufficient evidence of a knowing and voluntary waiver, then Simmons would be entitled to a new trial.

The Commonwealth sought discretionary review of this Court's opinion with the Kentucky Supreme Court. Review was granted, and the Supreme Court affirmed the decision of this Court. Commonwealth v. Simmons, 394 S.W.3d 903 (Ky. 2013). In so doing, the Supreme Court held that a twelve-person jury is a fundamental right and that any waiver of that right must be knowingly and voluntarily made by the defendant personally. Id. at 911. The matter was remanded so that the trial court could conduct an evidentiary hearing to determine if the defendant knowingly and voluntarily consented to the decision to proceed with less than twelve jurors. Id.

On remand, an evidentiary hearing was held by the trial court on July 9, 2013. Witnesses included Simmons's trial counsel, Valetta Brown; and one of Simmons's two co-defendants, Charles Smith. Simmons chose not to testify. Both parties filed post-hearing briefs, and on December 2, 2013, an order reinstating Simmons's judgment of conviction was entered. Therein, the trial court made the following relevant findings:

On appeal, Simmons challenges the finding of the trial court that the issue was "thoroughly discussed." In particular, Simmons maintains that, because there was no testimony indicating the exact length of the discussion, there was no evidence in support of a finding that the issue was "thoroughly discussed." We disagree.

"Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure (CR) 52.01. Findings of fact are clearly erroneous when they are not supported by substantial evidence. Stanford Health & Rehab. Ctr. v. Brock, 334 S.W.3d 883, 884 (Ky. App. 2010). "Substantial evidence [is] that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Id.

In the case presently before us, the evidence presented during the evidentiary hearing included the following: Brown informed Simmons that there was no longer a full twelve-person jury; Brown informed Simmons that he could choose to proceed with only eleven jurors, or to pursue a mistrial; Brown informed Simmons of the procedural consequences of a mistrial; Simmons sought Brown's opinion on proceeding with only eleven jurors; Smith and Simmons decided together that they wanted to proceed with the eleven-person jury; and Brown was not of the opinion that Simmons hesitated in his decision to proceed. Based upon this evidence, we find no error with the trial court's finding that the matter was "thoroughly discussed."

Simmons next takes issues with the trial court's finding that Simmons made a "strategic decision" to proceed with an eleven-person jury. Simmons argues that this finding is faulty, because "trial strategy" is reserved solely for trial counsel. Again, we disagree. Although trial strategy typically rests with counsel, the Supreme Court, on remand in this case, stated "[w]e reject . . . the Commonwealth's characterization of the issue as one of `trial strategy' that can be decided by counsel alone." Simmons, 394 S.W.3d at 913. The Court was clear on remand that a defendant must be active in his or her waiver of one's right to a twelve-person jury. Accordingly, Simmons's argument is without merit.

Simmons's final argument on appeal is that, due to her confounded state, Brown could not have been capable of explaining the constitutional implications of being tried by an eleven-person jury. In essence, Simmons's argument is a challenge to the trial court's factual finding that Simmons was adequately advised. This argument is based upon Brown's testimony that the situation was unique in her experience, because there was typically an alternate juror present. Although Brown admitted surprise at the lack of an alternate juror, she never acknowledged ignorance regarding a defendant's right to a twelve-person jury or the implications of seeking a mistrial. Simmons's inference that Brown's surprise was indicative of a lack of legal understanding is simply a matter of opinion not shared by the trial court. Such is well within the trial court's discretion. CR 52.01. Accordingly, we find no error with the trial court's conclusion that Simmons was adequately advised and that he knowingly, voluntarily and intelligently waived his constitutional right to a twelve-person jury.

For the foregoing reasons, the December 2, 2013, order reinstating judgment of conviction of the Madison Circuit Court is hereby affirmed.

ALL CONCUR.