FROM JESSAMINE CIRCUIT COURT HONORABLE C. HUNTER DAUGHERTY,
JUDGE ACTION NO. 11-CR-00087
FOR APPELLANT: Euva D. Blandford Assistant Public Advocate
LaGrange, Kentucky Brandon Neil Jewell Assistant Public
Advocate Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky James
C. Shackelford Assistant Attorney General Frankfort, Kentucky
BEFORE: KRAMER, J. LAMBERT, AND NICKELL, JUDGES.
Koteras appeals from an order entered by the Jessamine
Circuit Court denying his motion for RCr 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,
AND PROCEDURAL BACKGROUND
quote the Supreme Court's rendition of the facts from the
Jennifer Koteras found a note written by her eldest daughter,
[A.K.],  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
[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
[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
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.
TO RULES OF APPELLATE PROCEDURE
brief is rife with errors, the most flagrant being inclusion
of a detailed summary of two family court cases 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.
in violation of CR 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
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.
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.
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.
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.
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 ...