Opinion
No. 111,619.
2014-12-12
Chad E. McCRACKEN, Appellant, v. STATE of Kansas, Appellee.
Appeal from Franklin District Court; Eric W. Godderz, Judge.Jack J. Hobbs, of Law Office of Jack J. Hobbs, of Ottawa, for appellant.Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Franklin District Court; Eric W. Godderz, Judge.
Jack J. Hobbs, of Law Office of Jack J. Hobbs, of Ottawa, for appellant. Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Chad McCracken appeals the district court's summary denial of his motion for habeas corpus relief under K.S.A. 60–1507. Finding no error, we affirm.
Factual and Procedural Background
At the conclusion of a 3–day trial, a jury found McCracken guilty of two counts of aggravated child endangerment and assorted violations of Kansas drug laws. The trial court sentenced McCracken to a controlling term of 99 months' imprisonment. McCracken's direct appeal of his convictions and sentences in this and another case was unsuccessful. See State v. McCracken, Nos. 104,552 and 104,997, 2011 WL 5833336 (Kan.App.2011) (unpublished opinion), rev. denied 296 Kan. 1134 (2013).
In July 2013, McCracken filed a motion under K.S.A. 60–1507. He raised only one issue in his motion: Both his trial and appellate counsel provided constitutionally deficient assistance because they failed to challenge the following reasonable doubt instruction given to the jury:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Citing our court's precedent in State v. Womelsdorf, 47 Kan.App.2d 307, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013), the district court found no ineffective assistance and summarily denied McCracken's motion. McCracken filed a timely appeal.
Discussion
On appeal, McCracken reiterates his contention that his trial and appellate counsel provided ineffective assistance of counsel. In particular, McCracken claims his counsel failed to argue there is a reasonable likelihood the jury interpreted the reasonable doubt instruction in a way that allowed it to convict him without determining the State had proven every element of the charged offenses.
Because the district court summarily denied McCracken's K.S.A. 60–1507 motion, we must conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that he is not entitled to relief. See Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012).
To establish ineffective assistance of trial counsel, McCracken must show (1) that counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014). The prejudice prong varies with regard to his claim of ineffective appellate counsel, requiring McCracken to show he was prejudiced to the extent there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful. 298 Kan. at 934–35.
To establish his claims of ineffective assistance of counsel, McCracken argues that the instruction (which was patterned after PIK Crim.3d 52.02 [1995 Supp.] ) was erroneous because it deviated from the version of the PIK in effect at the time of his trial, i.e., PIK Crim.3d 52.02 (2010 Supp.). Of note, the newer version of the reasonable doubt instruction replaced the second “any” in the older version with “each.” In support of his argument, McCracken relies exclusively on a discussion of how the use of “any” instead of “each” might confuse a jury in Miller v. State, 2012 WL 401601, at *6 (Kan.App.2012) (unpublished opinion), aff'd in part, disapproved in part by 298 Kan. 921 (2014).
As the State correctly points out, however, our Supreme Court has subsequently disapproved of that discussion in Miller as “contrary to [its] caselaw.” 298 Kan. at 939–40. That caselaw holds that a reasonable doubt instruction patterned after PIK Crim.3d 52.02 (1995 Supp.) is “legally appropriate even if it was not a preferable rendition of the State's burden of proof.” State v. Ortega, 300 Kan. ––––, 335 P.3d 93, 105–06 (2014) (citing Miller, 298 Kan. at 939; State v. Smyser, 297 Kan. 199, 206, 299 P.3d 309 [2013]; State v. Waggoner, 297 Kan. 94, 99, 298 P.3d 333 [2013]; and State v. Herbel, 296 Kan. 1101, 1124, 299 P .3d 292 [2013] ); see Womelsdorf, 47 Kan.App.2d at 330–34.
We are duty bound to follow our Supreme Court's precedent on this issue. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Because the reasonable doubt instruction was legally appropriate, McCracken has not shown that either his trial or appellate counsel was ineffective for not challenging it. Accordingly, we hold the district court did not err in summarily denying McCracken's K.S.A. 60–1507 motion.
Affirmed.