Brenda Hardin v. Commonwealth of Kentucky ( 2023 )

RENDERED: OCTOBER 20, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1096-MR
BRENDA HARDIN APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
v. HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 14-CR-00156
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.
GOODWINE, JUDGE: Brenda Hardin (“Hardin”), proceeding pro se, appeals an
order of the Muhlenberg Circuit Court denying her request for post-conviction
relief under CR1 60.02. After careful review, finding no error, we affirm.
On August 11, 2015, Hardin was convicted of murdering her ex-
husband and was sentenced to life in prison. Hardin v. Commonwealth, No. 2015-
1
Kentucky Rules of Civil Procedure.
SC-000614-MR, 2016 WL 7665872, at *1 (Ky. Dec. 15, 2016). Her conviction
and sentence were affirmed on direct appeal. Id. at *4.
On August 8, 2022, Hardin filed a pro se motion under CR 60.02(a),
(e), and (f); CR 60.03;2 and multiple constitutional provisions. This was Hardin’s
first post-conviction motion challenging her conviction. The circuit court denied
her motion finding all but one of the issues raised in her motion were addressed “at
numerous pretrial hearings and during the actual trial of this matter (i.e., concerns
regarding Defendant’s purported mental illness, suicide attempt, and her
conversations with the investigating officer while Defendant was in the hospital).
These matters were addressed by the Supreme Court of Kentucky, which affirmed
[Hardin’s] judgment.” Record (R.) at 29. Additionally, the circuit court rejected
Hardin’s argument that the court held her decision not to testify against her in
sentencing her. The circuit court found Hardin’s claim was “in no way supported
by the record. This Court imposed the lawful punishment recommended by the
jury.” R. at 30. The circuit court also found the “jury was clearly instructed in
writing by this Court that Defendant’s decision not to testify ‘cannot be used as an
2
Though not addressed by the circuit court, Hardin did not file an independent action as CR
60.03 requires. Hardin only mentions CR 60.03 in the caption of her motion, and the body of her
motion only raises arguments under CR 60.02. Thus, the circuit court treated Hardin’s motion
purely as one brought under CR 60.02.
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inference of guilt and should not prejudice her in any way.’” Id.; Trial Record at
273, 285. This appeal followed.
On appeal, Hardin argues the circuit court abused its discretion in
denying her CR 60.02 motion because: (1) vital information about her mental
health, lack of criminal history, and emotional distress was not provided to the jury
before sentencing; (2) the circuit court should have instructed the jury on lesser
included offenses; and (3) these errors amount to cumulative error. Hardin’s brief
also includes vague ineffective assistance of counsel arguments throughout, and
her discussion of the standard of review is solely about ineffective assistance of
counsel without referencing RCr3 11.42.
“We review the denial of a CR 60.02 motion under an abuse of
discretion standard.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014)
(citing Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996)). “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
The purpose of CR 60.02 is to provide “for relief that is not available
by direct appeal and not available under RCr 11.42. The movant must demonstrate
why he is entitled to this special, extraordinary relief. ” Gross v. Commonwealth,
3
Kentucky Rules of Criminal Procedure.
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648 S.W.2d 853, 856 (Ky. 1983). Relief under CR 60.02 “is an extraordinary and
residual remedy to correct or vacate a judgment upon facts or grounds, not
appearing on the face of the record and not available by appeal or otherwise, which
were not discovered until after rendition of judgment without fault of the party
seeking relief.” Id. (quoting Harris v. Commonwealth, 296 S.W.2d 700 (Ky.
1956)). “In summary, CR 60.02 is not a separate avenue of appeal to be pursued in
addition to other remedies, but is available only to raise issues which cannot be
raised in other proceedings.” McQueen v. Commonwealth, 948 S.W.2d 415, 416
(Ky. 1997).
Before addressing Hardin’s enumerated arguments, we will address
the ineffective assistance of counsel standard of review and arguments woven
throughout her brief. To the extent Hardin makes ineffective assistance of counsel
claims, they are unpreserved as she did not raise them in her underlying motion.
Hardin’s brief seems to commingle elements of a motion for relief under CR 60.02
and ineffective assistance of counsel under RCr 11.42. As noted above, these are
two separate mechanisms for relief that may be pursued after a conviction is
affirmed on direct appeal. Hardin failed to raise her ineffective assistance of
counsel arguments below and does not request review for palpable error. Id. As
the Supreme Court of Kentucky has stated, “appellants will not be permitted to
feed one can of worms to the trial judge and another to the appellate court.” Elery
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v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012). Thus, we decline to address any
ineffective assistance of counsel arguments further.
Regarding the 60.02 motion, first, Hardin argues the circuit court
abused its discretion in denying her motion because vital information about her
mental health, lack of criminal history, and emotional distress was not provided to
the jury before sentencing. The record clearly refutes Hardin’s claim. During the
trial, evidence was presented regarding her erratic behavior, that she was not able
to move on after her divorce, that she was jealous of her ex-husband’s new
relationship, her mental health issues, her suicide attempt, and her lack of criminal
history. This evidence was presented in coordination with her extreme emotional
disturbance defense.
Additionally, the Supreme Court of Kentucky discussed evidence of
Hardin’s suicide attempt. Testimony regarding “pill bottles and their connection to
[Hardin’s] attempted suicide” and “suicide notes to various family members” were
presented at trial. Hardin, 2016 WL 7665872, at *3.
As the record shows this evidence was not withheld and was
presented to the jury prior to sentencing, Hardin’s claim lacks merit. Additionally,
her argument is procedurally barred because the issues raised were or should have
been raised on direct appeal. Thus, the circuit court did not abuse its discretion in
rejecting Hardin’s argument.
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Second, Hardin argues the circuit court should have instructed the jury
on a lesser included offense. The Commonwealth notes Hardin’s argument is
confusing, but she appears to attempt to use the domestic violence designation in
KRS4 439.3401 as proof that she should have received a lesser sentence at trial or
been used as mitigating evidence. Prior to filing the underlying motion, there was
never any allegation that Hardin was the victim of domestic violence perpetrated
by her ex-husband.
The KRS 439.3401 domestic violence designation relates to release
eligibility, not whether a defendant is entitled to jury instructions on lesser
included offenses. The designation only applies to persons who have “been
determined by a court to have been a victim of domestic violence,” and no court
has found Hardin was a victim of domestic violence. KRS 439.3401(5).
Additionally, this is an issue that should have been raised on direct appeal and is
procedurally barred. Hardin fails to demonstrate why this argument entitles her to
extraordinary relief. Thus, the circuit court did not abuse its discretion in rejecting
this argument.
Throughout her first two arguments, Hardin complains about the
guilty but mentally ill instruction that was included in the jury instructions. This
issue was addressed on direct appeal:
4
Kentucky Revised Statutes.
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The Commonwealth requested that instruction and
defense counsel objected. The court agreed with the
Commonwealth and authorized the instruction.
However, the Commonwealth stated during closing
argument that “[t]here is no evidence that [Appellant]
was ever diagnosed with a mental illness.” Appellant
was not convicted under a GBMI instruction. Therefore,
Appellant has failed to demonstrate prejudice. There is
no error here, certainly no error requiring reversal.
Hardin, 2016 WL 7665872, at *4. As this issue was addressed on direct appeal, it
is procedurally barred.
Third, Hardin alleges the cumulative effect of the issues raised in her
first two arguments amount to cumulative error. Hardin did not preserve this issue
by raising it in her motion, and she does not request review for palpable error. See
Elery, 368 S.W.3d at 97. Furthermore, “[i]f the errors have not “‘individually
raised any real question of prejudice,’ then cumulative error is not implicated.” Id.
at 100. As the errors alleged on appeal did not raise any real questions of prejudice
to Hardin, cumulative error is inapplicable.
Finally, though not addressed by the circuit court, it could have denied
Hardin’s motion as untimely. Motions under CR 60.02(a) must be made within
one year of the entry of a judgment, and motions under CR 60.02(e) and (f) must
be “made within a reasonable time.” Hardin’s judgment was entered in 2015, and
she filed her motion in nearly seven years later in 2022. Her arguments under CR
60.02(a) are clearly time barred as the motion was filed more than a year after the
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judgment against her was entered. “What constitutes a reasonable time in which to
move to vacate a judgment under CR 60.02 is a matter that addresses itself to the
discretion of the trial court.” Gross, 648 S.W.2d at 858. Hardin waited nearly
seven years to file her motion and did not provide justification for the delay. Thus,
the circuit court could have denied her motion as untimely.
For the foregoing reasons, we affirm the judgment of the Muhlenberg
Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Brenda Hardin, pro se Daniel Cameron
Pewee Valley, Kentucky Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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