NOT TO BE PUBLISHED
OPINION
ACREE, Chief Judge.
Donna Marie Wheeler appeals the June 23, 2011 judgment of the Johnson Circuit Court entered upon a jury verdict convicting her of first-degree manslaughter and sentencing her to fourteen and a half years' imprisonment. For the following reasons, we affirm in part and remand.
I. Facts and Procedure
On June 16, 2010, a Johnson County Grand Jury indicted Wheeler for one count of murder in connection with the April 30, 2010 shooting and death of James Sparks. A jury trial was subsequently held on May 23 and 24, 2011.
On April 30, 2010, Wheeler called 911 three times. The first two calls reported that Sparks had stolen her truck and money, that he was drunk, and that he was driving without a license. The third call reported that she had shot Sparks.
At trial, Jonathan Owens testified that, on April 30, 2010, Sparks was at his house earlier in the day and had been drinking. Because Sparks was intoxicated, Owens drove Sparks to Wheeler's residence. Sparks told Owens that he resided at Wheeler's residence. Upon their arrival, Sparks and Wheeler immediately began to argue. Owens testified that the argument was not physical in nature and involved only words. During the quarrel, Sparks left and re-entered the residence three separate times. On the third occasion, Wheeler grabbed a gun and discharged it three times in her home.
Owens further testified he saw Sparks wrestle the gun away from Wheeler and lay the gun down. While he and Sparks were walking outside and down the porch, Wheeler shot Sparks in the back.
Wheeler testified Sparks was drunk that day. When he arrived, Sparks refused to leave her house. He began abusing her and they struggled with the gun. The gun went off a couple of times during the struggle. When Sparks was leaving her residence, Wheeler admitted she shot the gun. However, Wheeler testified she did not intend to shoot at Sparks.
Finally, at trial, there was testimony about several prior incidents when the police were called to Wheeler's residence regarding reports of domestic violence in which Wheeler alleged that Sparks had abused her. On three separate, and prior, occasions, Sparks pleaded guilty to fourth-degree assault committed against Wheeler.
The jury convicted Wheeler of first-degree manslaughter. Consistent with the jury's recommendation, the trial court entered a final judgment and sentenced Wheeler to fourteen and a half years' imprisonment. This appeal followed. Additional facts are set forth below.
II. Analysis
Wheeler contends that the trial court erred when it: (1) denied her motion for exemption from the violent offender statute; (2) failed to dismiss the indictment based on the "castle doctrine"; and (3) disclosed the penalty ranges for first-degree and second-degree manslaughter to the jury during the guilt phase of the trial. We address each issue in turn.
A. Exemption from the Violent Offender Statute
Wheeler first argues that the trial court erred when it denied her request to be exempted from serving eighty-five percent of her sentence pursuant to the domestic violence exemption contained in Kentucky Revised Statutes (KRS) 439.3401(5). Wheeler contends that, in making its decision, the trial court applied the wrong standard. We agree.
Wheeler qualifies as a violent offender under KRS 439.3401(1)1 and, as a result, KRS 439.3401(3) requires her to serve eighty-five percent of her sentence before being eligible for probation or parole. There is an exception to the eighty-five percent rule. Specifically, KRS 439.3401(5) exempts any "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." KRS 439.3401(5).
Armed with KRS 439.3401(5), Wheeler sought to be considered a victim of domestic violence under KRS 533.060, thereby exempting her from the eighty-five percent rule. The trial court held a hearing on June 17, 2011, and made an oral finding that Wheeler was not entitled to the domestic violence exemption.
KRS 533.060(1) bars probation or conditional discharge to persons convicted of using a firearm in the commission of an offense. It contains the following exclusion:
[E]xcept when the person establishes that the person against whom the weapon was used had previously or was then engaged in an act or acts of domestic violence and abuse as defined in KRS 403.720 against either the person convicted or a family member as defined in KRS 403.720 of the person convicted. If the person convicted claims to be exempt from this statute because that person was the victim of domestic violence and abuse as defined in KRS 403.720, the trial judge shall conduct a hearing and make findings to determine the validity of the claim and applicability of this exemption. The findings of the court shall be noted in the final judgment.
Id. The trial court interpreted the above statutory exception to mean that Wheeler had to establish that she was a victim of domestic violence at the time she committed the offense.
In Holland v. Commonwealth, 192 S.W.3d 433 (Ky. App. 2005), this Court clarified that the statute does not require that the domestic violence occur at the same time as the offense for which the defendant was charged. Id. at 438. Instead, the defendant need only "connect the crime and the abuse." Id.
KRS 439.3401 requires that the defendant have been a victim of domestic violence or abuse "with regard to the offenses." KRS 533.060 states that the domestic violence exception applies when the victim of the offense "had previously or was then engaged in an act or acts of domestic violence and abuse . . . against either the person convicted or a family member." We do not conclude . . . that the statute and Vincent2 require that the domestic abuse have been contemporaneous with the offense for which the defendant was charged.
Id.
The Commonwealth concedes the trial court incorrectly applied a simultaneous standard in this case when it concluded that the exemption did not apply because there was no act of domestic violence by the victim at the time the shooting occurred. The trial court did not address whether there was a connection between the offense and the domestic violence. Further, KRS 533.060(1) requires that "the findings of the court shall be noted in the final judgment." Here, the trial court made no such findings in its final judgment.
Accordingly, we remand for additional findings and entry of an amended judgment. On remand, the trial court should "look at the totality of the evidence to determine if" there was "some connection" between the crime and domestic violence. Holland, 192 S.W.3d at 439. The trial court must then make findings regarding Wheeler's parole eligibility, and set forth those findings in its amended judgment.
B. Castle Doctrine
Wheeler next contends that the trial court erred by not dismissing her indictment based on KRS 503.085, the "castle doctrine." We disagree.
Prior to trial, Wheeler moved to dismiss the indictment against her pursuant to KRS 503.085. That statute grants immunity from criminal prosecution when a person's use of force is permissible under one of several statutes dealing with protection of self, property, or another person.3 As set forth in Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009), "if the defendant claims immunity the court must dismiss the case unless there is probable cause to conclude that the force used was not legally justified." Id. at 754.
Here, the trial court held a hearing on March 18, 2011, and concluded that the Commonwealth had met its burden of showing probable cause that the force Wheeler used was unjustified. The trial court subsequently entered an order denying Wheeler's motion.
On appeal, Wheeler argues that the trial court erroneously concluded that the Commonwealth carried its burden. She argues that, under KRS 503.055, the force she used against Sparks was justified. KRS 503.055 provides that an occupant of a dwelling or residence may reasonably assume that he or she is in imminent peril of death or great bodily harm if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, . . . and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
KRS 503.055(1)(a), (b).
As in Rodgers, Wheeler's claims of error are "purely academic" because she "has been tried and convicted by a properly instructed jury in a trial with no reversible error." 285 S.W.3d at 756. Her claims of justified force were "thoroughly examined by both the trial judge under the directed verdict standard and the jury under the court's instructions." Id. The trial court rejected Wheeler's pretrial motion for immunity, denied her motion for a directed verdict, and the jury convicted her. Her claims of justification regarding her use of force were thoroughly considered and rejected, and remanding this matter to the trial court for reconsideration of its determination would not change the outcome. Accordingly, reversal is not required.
C. Penalty Ranges
Finally, Wheeler contends that the trial court erred when it informed the jury of the penalty ranges for first-degree and second-degree manslaughter during the guilt-phase of her trial. Because this claim is not preserved for appellate review, Wheeler asks this Court to review it for palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26.
During the jury's guilt-phase deliberations, it submitted a question asking for the penalty ranges for first-degree and second-degree manslaughter. The trial judge asked counsel how he should respond. The Commonwealth argued that the information on penalty ranges was not relevant and should not be a factor in determining guilt. The trial judge stated he would leave it up to counsel to resolve the issue. Defense counsel consulted with Wheeler about how to proceed. Shortly thereafter, defense counsel returned and stated: "It's okay with us if you answer the question and tell them what the penalty ranges are."
Because Wheeler's counsel specifically requested that the jury be informed of the penalty ranges, "[t]hese alleged errors . . . were not merely unpreserved, they were invited." Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011).
Generally, a party is estopped from asserting an invited error on appeal. Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006). Noting the United States Supreme Court's distinction, in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L. Ed. 2d 508 (1993), between forfeited errors, which are subject to plain error review, and waived errors, which are not, the Ninth Circuit Court of Appeals has held that invited errors that amount to a waiver, i.e., invitations that reflect the party's knowing relinquishment of a right, are not subject to appellate review. United States v. Perez, 116 F.3d 840 (9th Cir. 1997).
Id. at 37-38.
Accordingly, we conclude that Wheeler "waived [her] right to claim on appeal" that the trial court erred in telling the jury the penalty ranges for first-degree and second-degree manslaughter. Id. at 38.
III. Conclusion
For the foregoing reasons, we remand to the trial court for additional findings whether the domestic violence exemption applies to Wheeler and for entry of an amended judgment. On remand, the trial court shall determine whether there was "some connection" between the shooting and domestic violence. Furthermore, the trial court's findings as to Wheeler's parole eligibility shall be noted in its amended final judgment. In all other respects, the judgment is affirmed.
ALL CONCUR.
