The KSC held that appellate counsel's performance was constitutionally deficient:
But Miller's appellate counsel did not testify that she declined to raise the instructional error to focus attention on other challenges in the direct appeal or after carefully considering it along with all other potential issues. Rather, the uncontroverted evidence shows she simply did not notice the error. And although she admitted a belief that the prosecutorial misconduct argument she did raise was stronger than the jury instruction issue that she missed, nothing in the record suggests the decision to raise one issue but not the other was the product of strategy. In other words, there was simply no professional judgment exercised in failing to bring this admitted instruction error before an appellate court.The KSC also held that, if appellate counsel had raised the issue, it would have resulted in a finding of structural error and, therefore, the error was prejudicial.