RENDERED: SEPTEMBER 17, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2019

- CA

- 0937

- MR
CHRISTOPHER ESPER APPELLANT

v. APPEAL FROM KENTON CIRCUIT COURT

HONORABLE GREGORY M

. BARTLETT, JUDGE

ACTION NO. 14

- CR

- 01022

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES. ACREE, JUDGE: Christopher Esper appeals the Kenton Circuit Court’s April 9, 2019 order denying him RCr 1 11.42 relief. Finding no error, we affirm.

1 Kentucky Rules of Criminal Procedure.- 2

- BACKGROUND On September 28, 2014, Esper’s six

- year - old niece presented at the
doctor with symptoms of vaginal dischar ge and burning during urination. Testing proved positive for gonorrhea , prompting police to investigate for a possible sexual assault. Because the case involved a juvenile, the Cabinet for Health and Family Services ordered all men in the niece’s household to be tested for gonorrhea. Only Esper tested positive.

The police asked Esper to come in for an interview. At that time, the police read Esper his Miranda 2 rights , and Esper signed a waiver indicating he understood his rights and was voluntarily talking with the police. During the interview, he initially denied having sexual contact with his niec e, but eventually confessed to sexual contact and wrote a letter to his niece apologizing for his
actions

. On December 4, 2014, a Kenton County g rand j ury indicted Esper for incest and rape in the first degree. 3

At a pretrial conference on the day bef ore trial was to begin, the court
stated it was informed that Esper wished to plead guilty. But Esper suddenly changed hi s mind leading to counsel’s motion for a one - week continuance. The motion was denied

. L ead defense counsel then stated she could not ethically or

2 Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 Ultimately, the circuit court dismissed the incest charge.- 3

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physically participate in the trial and was withdrawing “as of now

. ” She left the courtroom. Esper’s second chair counsel remained and also expressed lack of preparation concerns but participated in voir dire , anyway . The lead defense

coun sel returned to the courtroom before opening statements and participated in the remainder of the trial.

Ultimately, the jury found Esper guilty and the circuit court sentenced him to 25 years ’ imprisonment. Esper appealed his conviction to the Supreme Court, but his conviction stood. See Esper v. Commonwealth , No. 2016

- SC

000366

- MR, 2018 WL 898215 (Ky. Feb. 15, 2018) ( Esper I )

. Back in the circuit court, Esper filed a n RCr 11.42 motion arguing three errors: (1) ineffective assistance of appellate counsel (IAAC)

because the Supreme Court was not convinced by counsel’s argument that Esper’s confession was obtained through unconstitutional means ; (2) his trial counsel was ineffective for failing to investigate his case and properly prepare ; and (3) his trial counsel was ineffective for failing to request a Daubert

4 hearing or t o challenge the medical evidence concerning the medicine (Keflux) used to treat the victim for gonorrhea.

4 Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)

.- 4

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The circuit court denied his motion. This appeal followed. 5

STANDARD OF REVIEW UNDER Strickland Every defendant is entitled to reasonably effective, but not necessarily errorless, counsel. Fegley v. Commonwealth , 337 S.W.3d 657, 659 (Ky. App. 2011). In evaluating a claim of ineffective assistance of counsel, we apply the familiar “deficient

- perform ance plus prejudice” standard first articulated in Strickland v. Washington , 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984). This standard applies equally when defendants allege they declined a plea offer in favor of going to trial, bas ed on counsel’s ineffectiveness. See Osborne v. Commonwealth , 992 S.W.2d 860, 864 (Ky. App. 1998).

Under Strickland , the movant must first prove his counsel’s performance was deficient by demonstrating counsel’s representation “fell below an objective standard of reasonableness” such that “counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment[.]” Commonwealth v. Tamme , 83 S.W.3d 465, 469 (Ky. 2002). In this context, we inquire whether counsel sufficiently communicated to his c lient what “risks were attendant to trial versus the benefits to be gained vis á vis a plea bargain[.]” Osborne , 992 S.W.2d at 864.

5 On July 23, 2019, Esper filed a motion for belated appeal. According to his motion, he did not receive notice of th e order denying his RCr 11.42 motion due to an oversight in the clerk’s office. This Court issued an order requesting the circuit court hold a hearing on this matter. The circuit court complied and found Esper did not receive notice of the order; therefo re, we granted his request for a belated appeal on February 14, 2020.- 5

- Second, the movant must prove counsel’s “deficient performance prejudiced the defense.” Strickland , 466 U.S. at 687 , 10 4 S. Ct. at 2064 . In this context, the movant must show:

that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court ( i.e. , that the defendant would have accepted the plea a nd the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment a nd sentence that in fact were imposed. Lafler v. Cooper , 566 U.S. 156, 164, 132 S. Ct. 1376, 1385 , 182 L. Ed. 2d 398 (2012). ANALYSIS

In his own words, Esper argues that “the circuit court abused its discretion and violated Mr. Esper’s rights”: (1) “in failing to hold an evidentiary hearing ”; (2) “in denying counsel on his motion to vacate, set aside, or correct sentence”; and (3) “in failing to issue finding [sic] of facts and conclusions of law on his motion to vacate, set aside, or c orrect sentence.” (Appellant’s brief, at 6, 13,
18

. ) However, the substance of Esper’s brief does not follow this outline and he presents many sub

- arguments, some rationally related to the section in which they appear, and some not.- 6

- However, n owhere in his brief does Esper direct this Court where in the record we can find proof he preserved any of the error s he claims. This failure violates CR 6 76.12(4)(c)(v) and justifies treating the claimed errors as unpreserved and subject only to review for manifest injustice; i.e

. , review to see if the circuit court committed “[a] palpable error which affects [Esper’s] substantial rights ” and justifies “ appropriate relief [,] ” but only “ upon a determination that manifest injustice has resulted from the er ror. ” RCr 10.26. We therefore apply the standard
under Strickland in the context of our manifest injustice review.

We find no merit in Esper’s first argument that he was entitled to an evidentiary hearing. It is only when the Commonwealth’s answer to a n RCr 11.42 motion “ raises a material issue of fact that cannot be determined on the face of the record [that] the court shall grant a prompt hearing [

. ] ” RCr 11.42 (5). The Commonwealth’s answer did not create a factual issue , bas ing its legal argument for denying Esper’s motion on facts discernible from the record only. Esper’s first argument fails.

Because a hearing was not required to adjudicate facts, the circuit court was not required to “ make findings determinative of the mate rial issues of fac t [

. ] ” RCr 11.42 (6). That rule means Esper’s third argument fails to the extent he claims findings of fact were required.

6 Kentucky Rules of Civil Procedure.- 7

- That leaves only the overarching question whether the circuit court erred as a matter of law when it denied RCr 11 .42 relief b ased on Esper’s specific arguments to that court

– ineffective assistance of appellate counsel; defense counsel’s failure to investigate and prepare; and defense counsel’s failure to seek a
Daubert hearing to challenge medical proof.

Esper’s IA AC claim fails because it does not satisfy the criteria for such claims established in Hollon v. Commonwealth , 334 S.W.3d 431 (Ky. 2010).

“ In Hollon , [the Kentucky Supreme Court] recognized that IAAC claims premised upon appellate counsel ’ s alleged failure to raise a particular issue on direct appeal were cognizable in Kentucky. ” Commonwealth v. Pollini , 437 S.W.3d 144, 147 (Ky. 2014) (emphasis added)

. But Esper’s appellate counsel did not fail in this regard. The “particular issue” Esper identifies is “ his claim that his confession was obtained through unconstitutional means.” ( Record ( R. ) at 373

. ) As the circuit court indicated, “his appellate counsel briefed the issue to the Supreme Court which gave careful consideration to the argument before denyi ng the claim.” ( Id

. ) As a matter of law, a claim that counsel should have been more persuasive in his or her appellate advocacy will not support an IAAC claim.

His second argument before the circuit court is that his trial counsel failed to adequately prepare for trial. The circuit court, having observed Esper’s counsel’s performance at trial concluded “trial counsel was prepared” and that- 8

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conclusion was consistent with the Supreme Court ’s opinion that addressed the adequacy of de fense counsel’s preparation in the context of a challenge on direct appeal that the circuit court should have granted a continuance. ( Id

. at 373

- 74

. ) The Supreme Court sa id: “ De spite claims of exhaustion and unpreparedness on the part of Esper ’ s counsel , the record shows that defense counsel actively participated throughout the trial.

. . . Moreover, Esper has shown no identifiable prejudice resulting from the denial of his request for a continuance. ” Esper I , at *4

. This Court also finds no identif iable prejudice resulting from Esper’s counsel’s preparation for or presentation of his defense at trial. If the circuit court erred in its conclusion that Esper’s claim that his counsel was unprepared, that error resulted in no identifiable prejudice and , therefore, did not result in a manifest injustice. Esper’s last argument before the circuit court relates to his counsel’s allegedly ineffective challenge of expert testimony. Specifically, Esper says his “counsel was ineffective in failing to request a Daubert h earing concerning [1] the tests administered to determine if [his victim] had Gonorrhea and [2] whether Keflex could have treated it.” (Appellant’s brief, at 9

. )

W hether both Esper and his victim had gonorrhea was relevant to the

case. Gonorrhea is neither a new disease nor a rare one and has been diagnosed- 9

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and treated for hundreds of years. Nevertheless, i ts diagnosis in a particular case may still be challenged. And Esper’s counsel did challenge it. On April 21, 2019, Esper’s counse l filed a “Motion for Daubert Hearing” and specifically s ought to exclude “any testimony that the urine analyses for both Mr. Esper and for . . . the alleged victim, were positive for Neisseria Gonorrhoeae .” (R. at 187

. ) The
motion directs attention to t hat part of the lab records for the victim themselves that state “‘[t]he performance of this test has not been verified in minor aged patients.’” (R. at 189

. ) In other words, Esper’s counsel did exactly what he now complains she failed to do. A s the cir cuit court pointed out, “Trial counsel had filed several Motions in Limine seeking to preclude” the Commonwealth’s expert from testifying regarding how he diagnosed gonorrhea in this case . (R. at 374

. ) Certainly, we cannot say that defense counsel’s hand ling of the expert testimony in
this case “fell below an objective standard of reasonableness” such that “counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment[.]”
Tamme , 83 S.W.3d at 469.

Finally, w hether Keflex is an effective treatment for gonorrhea is not a fact in issue in this case. Esper disagrees , arguing that if his victim eventually tested negative for gonorrhea (which she did) , and if the drug ( Keflex ) used to treat
her does not cure gonorrhea, then the inference must be drawn that his victim’s initial test for gonorrhea yielded a false positive. Although clever, the argument is- 10

-

unpersuasive. Even if we found a modicum of merit in the argument, we would still affirm the circuit court because the overwhelming evidence , including Esper’s own confession, demonstrate s that any failure of counsel here could not have resulted in prejudice to his case. CONCLUSION

For the foregoing reasons, we affirm the Kenton Circuit Court’s April 9, 2019 order denying Esper RCr 11.42 relief.

ALL CONCUR

.

BRIEF S FOR APPELLANT: Christopher Esper, pro se La Grange, K entucky BRIEF FOR APPELLEE: Daniel Cameron Attorney Gen eral of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, K entucky