Opinion
2023-CA-1210-MR
09-27-2024
BRINA E. NIE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: F. Todd Lewis Louisville, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HART CIRCUIT COURT HONORABLE CHARLES C. SIMMS, III, JUDGE ACTION NO. 18-CR-00089
BRIEFS FOR APPELLANT: F. Todd Lewis Louisville, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
OPINION
KAREM, JUDGE
Brina E. Nie ("Nie") appeals from the Hart Circuit Court's order denying her motion for relief under Kentucky Rule of Criminal Procedure ("RCr") 11.42 and Kentucky Rule of Civil Procedure ("CR") 60.02. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On April 1, 2018, at approximately 3:00 a.m., Nie entered her parents' bedroom and shot her mother and father with a .45 caliber revolver. As a result, her father died at the scene. Her mother was taken to the hospital where she was treated and ultimately recovered.
At the time of the incident, Nie and her two young children lived with Nie's parents. Nie later claimed she did not mean to shoot her mother but had intended to shoot her father because he had told her the previous evening that he was going to divorce her mother and that Nie, her two children, and her mother would have to leave the residence as he no longer wanted them living there.
As Nie later described during a competency interview, she became increasingly angry and concerned about where she and her children would go if evicted from her parents' home. Eventually, she determined "it would be easier if he [her father] was gone." After her father went to bed, Nie retrieved a gun, entered his bedroom, and began firing as her mother and father slept.
At first, Nie alleged that an intruder had broken into the home, shot her parents, and fled the residence. She also later suggested that the father of one of her children may have been the perpetrator. After being challenged with her statement's inconsistencies, Nie ultimately confessed to the shooting.
Pursuant to an order entered in November 2018, Nie was evaluated at the Kentucky Correctional Psychiatric Center ("KCPC"). After interviewing Nie, the doctor performing the evaluation summarized as follows:
She described that her parents had been fighting because her mother is a "compulsive spender." She added that
her mother is $30,000 in debt and her father told the mother that she was "useless" and "was cussing at her." She added that her father told the mother and the daughter that he did not want her there. He then reportedly told [Nie] that after her birthday and her older daughter's birthday, they would be "kicked out." ...
She stated that her parents continued to fight later that evening while she was in her bedroom and she could hear her mother crying. She stated that she had been up quite a bit caring for her newborn daughter and had not slept more than two hours in three days. With regard to the alleged events, she reportedly did not remember going to get the gun but, "Just remembered shooting him." She recalled her mother screaming. She described her thoughts at the time as, "It would be easier if he was gone." After she shot the gun, she described her emotions as "scared." When asked what she was scared of, she stated, "losing my kids and what my mom would do." She added, "I knew if he left, she wasn't going to make it without dad." She related that after the alleged events, her mother told her that she would "take care of it." She indicated that neither of them realized that her mother had been shot. She said that her mother told her to get rid of the gun. She then called the police, grabbed her daughter, and "went to the river." When asked why she took the gun to the river, she described it as "the most convenient spot." When asked if she was attempting to hide the crime from the police, she nodded her head affirmatively. She stated that her mother told her to go get her uncle. She disputes what is in her discovery with regard to her statement to an emergency response worker who reported that she said that her father shot himself. She claims that she only stated that her father had been shot. She stated that her mother told the police that "Ryan," her second daughter's father, had shot her. She stated that she initially went along with the story and attempted to use Ryan as some type of scapegoat. The
police then told her that Ryan had an alibi. She stated that after she was told that Ryan had an alibi, she admitted shooting her father. She stated that she made this confession because she did not want her mother implicated in the alleged events.
On April 2, 2019, Nie entered guilty pleas to first-degree manslaughter and first-degree wanton endangerment. The Commonwealth recommended a sentence of eighteen (18) years for first-degree manslaughter and two (2) years for first-degree wanton endangerment. She would serve the sentences consecutively for a total of twenty (20) years.
On May 7, 2019, Nie came before the circuit court for final sentencing. Her presentence investigation report described the nature of the offense as follows:
On 4/1/2018, Brina E. Nie shot her father multiple times with a revolver in his bedroom after he had previously threatened to kick Brina and her mother and Brina's children out of the house. Her father did not survive and Brina's mother was also accidentally struck with a bullet during the shooting. She later confessed to the shooting.
The circuit court ultimately sentenced Nie in conformity with her plea agreement. Under the final judgment of conviction entered by the circuit court on May 9, 2019, Nie is not eligible for parole until she has served eighty-five percent (85%) of her first-degree manslaughter conviction.
Nie's plea was not conditional, nor did she appeal her conviction and challenge her sentence as unauthorized.
On May 4, 2022, Nie, through retained counsel, filed a motion for relief under RCr 11.42 and/or CR 60.02. In her motion, Nie contended that she was a victim of sexual abuse that her father perpetrated. Based upon this argument, Nie argued that she fell under a statutory exception to the violent offender classification and requested that the court re-classify her as a victim of domestic violence or abuse under Kentucky Revised Statutes ("KRS") 533.060. Such re-classification under the exception would permit Nie to become eligible for parole after serving twenty percent (20%) of her sentence rather than eighty-five percent (85%). See KRS 439.3401(5) and KRS 533.060(1).
On November 30, 2022, the circuit court conducted an evidentiary hearing on Nie's motion. At the hearing, Nie testified that her father was controlling and frequently intoxicated from consuming alcoholic beverages. When Nie was thirteen (13) years of age, she asserts that her father became upset when she disclosed her attraction to females. In response, Nie claimed that her father informed her that she was not gay and that he "wasn't going to raise a queer." The following day, Nie asserted that her father entered her bedroom, closed the door, struck her in the face, and stated that gay people did not go to heaven. According to Nie, he then forcibly penetrated her vagina with his fingers.
Nie further alleged that when she was fifteen (15) years of age, she invited a female classmate to her residence. The following Monday, Nie advised that her father entered her room and assumed the classmate was her "girlfriend." He then allegedly made several derogatory statements about homosexuality. Nie testified that her father thereafter forcibly removed her pants and penetrated her vagina with two fingers.
When Nie was eighteen (18) years of age and about to leave for college, she claims that her father once again entered her bedroom and informed her that she needed to remember that she was not homosexual. Nie asserted that she did not resist this time and that she removed her pants herself. Nie testified that her father again penetrated her vagina with his fingers.
Following the evidentiary hearing, the parties filed supplemental briefs. On July 18, 2023, the circuit court entered an order denying Nie's motion for postconviction relief, which led to this appeal.
We will discuss further facts as they become relevant.
ANALYSIS
On appeal, Nie argues that the circuit court erred in denying her RCr 11.42 motion (1) based upon the circuit court's imposition of a sentence that was unauthorized by statute, and (2) based on her trial counsel's ineffectiveness in failing to hire a mitigation specialist who may have uncovered the fact that her father had sexually abused her. Nie argues in the alternative that she is entitled to relief under CR 60.02(b), (e), and (f).
1. RCr 11.42
Nie first argues that the circuit court entered her sentence without considering all the statutorily allowed sentencing options. She further contends she may seek relief from her sentence based on the foregoing under RCr 11.42 or CR 60.02. The Kentucky Supreme Court has recognized that "the imposition of an unauthorized sentence is an error correctable by appeal, by writ, or by motion pursuant to RCr 11.42 or CR 60.02." Myers v. Commonwealth, 42 S.W.3d 594, 596 (Ky. 2001), overruled on other grounds by McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010). In Grigsby v. Commonwealth, 302 S.W.3d 52, 54 (Ky. 2010), the Kentucky Supreme Court concluded that a "sentencing issue" that survives an unconditional guilty plea includes "a claim that a sentencing decision . . . was made without fully considering what sentencing options were allowed by statute[.]" Id. (citing Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994)). Accordingly, we will consider Nie's allegation of sentencing error.
In this case, Nie pled guilty to manslaughter in the first degree, which qualified her as a "violent offender" because she committed "[a] felony involving the death of the victim[.]" KRS 439.3401(1)(c). The consequence of the "violent offender" designation is that Nie is prohibited from "release[] on probation, shock probation, parole, conditional discharge, or other form of early release" until "she has served at least eighty-five (85%) of the sentence imposed." KRS 439.3401(3)(a).
Now KRS 439.3401(1)(b)(1). KRS 439.3401 was revised in July 2024, resulting in the legislature renumbering certain provisions. The renumbering of the provisions does not affect the issues in this case. We refer to and cite the statute as it existed at the time the underlying events took place.
Now KRS 439.3401(4).
However, KRS 439.3401(5) states that the violent offender statute "shall not apply to a person who has been determined by a court to have been a victim of domestic violence or abuse pursuant to KRS 533.060 with regard to the offenses involving the death of the victim or serious physical injury to the victim." (Emphasis added.) Thus, the violent offender statute "provides leniency for the domestic violence victim who strikes back at an abuser by removing the 'violent offender' status from the offense and allowing the offender to be eligible for parole as specified in KRS 439.340." Holland v. Commonwealth, 192 S.W.3d 433, 436 (Ky. App. 2005) (citing Shelton v. Commonwealth, 992 S.W.2d 849, 851 (Ky. App. 1998)).
Now KRS 439.3401(6).
Here, while the circuit court determined that Nie was "a victim of domestic violence or abuse pursuant to KRS 533.060," it found that the domestic violence or abuse Nie suffered did not occur "with regard to" her father's shooting. Kentucky courts have stated the following regarding the second part of the statutory language - whether domestic violence or abuse endured by a defendant occurred "with regard to the offenses" committed by that defendant:
we have construed the statutory text to mean that the domestic violence exemption of KRS 439.3401(5) applies only when the domestic violence or abuse was "involved" in the offense committed by the violent offender. See Springer v. Commonwealth, 998 S.W.2d 439, 457 (Ky. 1999). In Commonwealth v. Vincent, 70 S.W.3d 422 (Ky. 2002), we further explained the evidence must establish "some connection or relationship between the domestic violence suffered by the defendant and the underlying offense committed by the defendant." [] Id. at 424. We further concluded that "a prior history of domestic violence between a violent crime victim and the criminal defendant who perpetrated the violent offense does not, in and of itself, make the defendant eligible for the parole exemption of KRS 439.3401(5)." [] Id. at 425.Gaines v. Commonwealth, 439 S.W.3d 160, 165 (Ky. 2014). The Court went on to say:
While neither the statutory language, "with regard to," nor our constructions of it in Springer ("involved") and Vincent ("some connection or relationship"), require a direct and immediate causal connection between the act of domestic violence and the murder, they do require something more than a mere temporal proximity between the domestic abuse and the murder.Id.
We pause in our analysis to note that our applicable standard of review as to "[t]he second prong, whether the domestic violence or abuse endured by the defendant occurred 'with regard to the offenses' committed by that defendant, is a mixed question of law and fact. As such, the trial court's determinations on this prong are reviewed de novo." Commonwealth v. Crowe, 610 S.W.3d 218, 225 (Ky. 2020). However, "appellate courts shall give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id. (internal quotation marks and citation omitted).
In this case, we find no error in the circuit court's conclusion that Nie did not fall under the domestic violence exception because of its findings that her actions were motivated by something other than domestic violence and thus did not meet the "with regard to" standard of the statute. The circuit court determined that Nie was the victim of domestic violence or abuse based on her accusations of three separate instances of domestic abuse. However, the evidence of record indicates that Nie's father last perpetrated sexual abuse upon her when she was about to leave for college at the age of eighteen (18), which was years before she shot him in 2018 at almost twenty-two (22) years of age. As previously discussed, "a prior history of domestic violence between a violent crime victim and the criminal defendant who perpetrated the violent offense does not, in and of itself, make the defendant eligible for the parole exemption of KRS 439.3401(5)." Vincent, 70 S.W.3d at 425.
Moreover, Nie consistently provided a separate and independent motive for shooting her father - namely, that her father had threatened to remove Nie, her children, and her mother from the home. After the shooting, Nie told law enforcement about her father's threats of having the family removed from the residence. However, Nie never informed law enforcement, her attorneys, investigators, or those at KCPC about her father sexually abusing her.
Moreover, the record reflects that Nie had not connected the sexual abuse and the shooting for approximately four years. Indeed, Nie's counsel stated the following in the memorandum in support of the 11.42 motion:
In February, 2022, the undersigned was engaged to represent Brina in a review of any postconviction issues in her case, following the sudden death of an attorney who had previously been engaged for that purpose. Nothing specific was articulated as a basis, so the case was reviewed by the undersigned in general terms, and Brina was interviewed in an open-ended, very general format. During that interview, Brina related in passing and without prompting that she had been the victim of sexual abuse by her father, the homicide victim in this case. She had no idea this bore any relevance to her legal situation.(Emphasis added.) Thus, it is difficult for this Court to conclusively determine that domestic violence or abuse was "involved" or had "some connection or relationship" to the shooting herein when the perpetrator did not do so herself. Thus, we find that the circuit court correctly denied Nie's RCr 11.42 motion as it relates to her allegations of an unauthorized sentence.
Nie next argues that her trial counsel was ineffective under RCr 11.42 in failing to hire a mitigation specialist who may have uncovered the fact that her father had sexually abused her. As the Kentucky Supreme Court discussed, "RCr 11.42 provides a process by which a convicted prisoner may collaterally attack the validity of his sentence." Commonwealth v. Rank, 494 S.W.3d 476, 481 (Ky.
2016). Specifically:
[t]o successfully establish the invalidity of a guilty plea based upon the allegedly deficient performance of defense counsel . . . the movant must demonstrate that: (1) defense counsel's performance fell outside the wide range of professionally competent assistance; and that (2) a reasonable probability exists that, but for the deficient performance of counsel, the movant would not have pled guilty, but would have insisted on going to trial.Id. (citations omitted).
In this case, because we have determined that Nie cannot meet the second prong of the exemption to the violent offender statute contained in KRS 439.3401(5), Nie's counsel could not have been ineffective for failing to hire a mitigation specialist to discover the sexual abuse. Nie has failed to demonstrate that her attorney's alleged errors were "objectively unreasonable under the circumstances existing at the time of trial[.]" Simmons v. Commonwealth, 191 S.W.3d 557, 561-62 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 158 (Ky. 2009). As Nie cannot satisfy the first prong of Strickland, this claim fails.
2. CR 60.02
Nie further claims she is still entitled to relief pursuant to CR 60.02. CR 60.02 states that motions made under subsection (b) may not be made "more than one year after the judgment, order, or proceeding was entered or taken." Nie filed her motion almost three (3) years following the entry of judgment. As such, any claims she may have under CR 60.02(b) are procedurally barred.
Moreover, "CR 60.02 is an extraordinary remedy and is available only when a substantial miscarriage of justice will result from the effect of the final judgment." Wilson v. Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966). As discussed throughout this opinion, Nie was not subjected to an unauthorized sentence or ineffective assistance of counsel, and we can see no other "reason of an extraordinary nature justifying relief." CR 60.02(f).
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Hart Circuit Court.
ALL CONCUR.