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Koteras v. Commonwealth

Court of Appeals of Kentucky

December 21, 2018



          BRIEFS FOR APPELLANT: Euva D. Blandford Assistant Public Advocate LaGrange, Kentucky Brandon Neil Jewell Assistant Public Advocate Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky



          NICKELL, JUDGE

         Christopher Koteras appeals from an order entered by the Jessamine Circuit Court denying his motion for RCr[1] 11.42 relief alleging counsel-both at trial and on direct appeal-was ineffective and prejudiced his case. In denying the motion, the trial court attributed trial counsel's actions to reasonable trial strategy and found, if raised by appellate counsel on direct appeal, two additional arguments would not require reversal. This appeal challenges trial counsel's representation. After reviewing the record, briefs and law, we affirm.


         We quote the Supreme Court's rendition of the facts from the direct appeal.[2]

Jennifer Koteras found a note written by her eldest daughter, [A.K.], [3] then eleven years old, informing her that [Christopher] had touched [her] "private spots." The note stated that the touching started several years earlier when [A.K.] was age seven and asked Jennifer to inform [A.K.]'s counselor, Ms. Janet. Jennifer reported the alleged abuse to authorities. [Christopher's] indictment and prosecution followed.
Leading up to Jennifer's discovery of the note, [Christopher's] relationship with both Jennifer and their children had been confrontational. Diagnosed as bipolar, [Christopher] was subject to severe mood swings and bouts of anger. Eventually, the Koterases' tumultuous relationship became strained to the point that the couple separated; and Jennifer sought and received an Emergency Order of Protection (EPO) against [Christopher]. Soon thereafter, the couple divorced.
[Christopher] got an apartment in Lexington, and the children made weekend visits there. The apartment had two bedrooms-one with a queen-sized bed and the other with a twin-sized bed. [A.K.] testified that on a particular visit in Lexington, her sister wanted to sleep alone in the twin bed rather than the sisters sleeping together in the queen-sized bed as was customary. So [A.K.] slept with [Christopher] in the queen-sized bed. Similar to the encounters alleged in the indictment, [A.K.] testified she woke up to Christopher touching her inappropriately. The impact of this occurrence was clear and immediate. On [A.K.]'s next scheduled visit to [Christopher's] apartment, she refused to get out of Jennifer's car. [Christopher] grabbed [A.K.] by the wrist and attempted to pull her from the vehicle. As a result, [A.K.] suffered a sprained wrist.
The wrist incident prompted a suspension and modification of [Christopher]'s exercise of his visitation rights with his daughters. Initially following the incident, [his] visits were supervised at a counselor's office. This eventually transitioned to visitation only in public places. But at no point following this incident did [A.K.] visit with [Christopher].
[A.K.] testified that when she overheard her mother considering permitting [A.K.]'s younger sister to resume weekend overnight visits with [Christopher], she was impelled to report the abuse to her. By this time, [A.K.]'s younger sister was reaching the age when [A.K.] was first subjected to abuse by [Christopher], so [A.K.] said she feared [Christopher] would start abusing the sister, as well.
[Christopher] was indicted by the Jessamine County Grand Jury on twenty-four counts of first-degree sexual abuse, but the Commonwealth later amended the indictment to proceed on only eight counts. The remaining sixteen counts were later dismissed. Each count was differentiated by specific facts relative to the particular occurrence. The eight occurrences presented at trial follow the general pattern of [A.K.] waking to find [Christopher] sitting on the edge of her bed with his hand underneath her panties and fondling her genitals.
The jury convicted [Christopher] of all eight counts and recommended a sentence of five years' imprisonment on each count, to run consecutively, for a total of forty years' imprisonment. But because of the consecutive-sentence cap outlined in Kentucky Revised Statutes (KRS) 532.110(c) and 532.080(6)(b), at final sentencing, the trial court sentenced [Christopher] to twenty years' imprisonment. In addition, [he] was sentenced to a five-year period of conditional discharge upon release from incarceration or parole and to lifetime sex-offender registration. This appeal followed.


         Christopher's brief is rife with errors, the most flagrant being inclusion of a detailed summary of two family court cases[4] which are not part of the record on appeal. Post-conviction appellate counsel sought to have those files certified as part of the appellate record, but the trial court denied supplementation as "unnecessary, and a waste of time[.]" Attempts to supplement the record and factual misstatements culminated in the Commonwealth moving to strike Christopher's brief. That motion was passed to this merits panel for resolution. We grant the motion to strike in part in a separate order entered this date.

         Additionally, in violation of CR[5] 76.12(4)(c)(v), three of the nine numbered issues in Christopher's brief do not cite where the claims were argued to the trial court. We emphasize preservation for good reason. For this Court to have authority to review a claim, the trial court must have had an opportunity to correct its alleged error. Harrison v. Leach, 323 S.W.3d 702, 708-09 (Ky. 2010). We have no duty to search the record for proof a party's argument was presented to the trial court. See Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). However, we lack authority to review unpreserved issues unless palpable error review is requested. RCr 10.26. In this appeal, palpable error review was not requested for any claim. All nine numbered claims were addressed by the trial court, convincing us they were preserved. We, therefore, address all nine claims.

         In an unnumbered claim, Christopher's brief argues trial counsel pursued a defense to which he never agreed and without his consent conceded guilt of physical abuse-a crime with which he was neither charged nor convicted. "[A] party may not raise an issue for the first time on appeal[.]" Taylor v. Kentucky Unemployment Ins. Comm'n, 382 S.W.3d 826, 835 (Ky. 2012) (citations omitted). The claim was raised in neither the pro se RCr 11.42 motion, nor counsel's supplement thereto. Thus, it is not properly before us and will not be addressed.

         Finally, the last page of the appendix to Christopher's brief is a single sheet of handwritten notes attributed to Hon. Susanne McCullough who served as trial counsel with Hon. Kieran Comer. CR 76.12(4)(c)(vii) directs, "[t]he index shall set forth where the documents may be found in the record." Failure to specify the page number on which the sheet is found in the record violates the rule.

         Despite the foregoing errors in the brief for appellant, and the Commonwealth's motion to strike, we will allow the appeal to go forward because these flaws are attributable to counsel, not to the client. All counsel are warned to adhere to the rules of appellate practice and procedure.


         Denial of RCr 11.42 relief is reviewed for abuse of discretion. Phon v. Commonwealth, 545 S.W.3d 284, 290 (Ky. 2018) (citing Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014)). The test 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) (citations omitted). Legal issues are reviewed de novo. Phon, 545 S.W.3d at 290.

         To establish ineffective assistance of counsel, a movant must satisfy a two-pronged test showing counsel's performance was deficient and the deficiency caused actual prejudice resulting in a fundamentally unfair proceeding with an unreliable result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). As established in Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002):

[t]he Strickland standard sets forth a two-prong test for ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland. . . . To show prejudice, the
defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability ...

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