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State v. Miller

Supreme Court of Montana

January 10, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
JOHN O. MILLER, Defendant and Appellant.

          Submitted on Briefs: December 21, 2016

         APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Stillwater, Cause No. DC 91-01 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD:

          For Appellant: John O. Miller, self-represented, Deer Lodge, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Nancy L. Rohde, Stillwater County Attorney, Columbus, Montana

          Jim Rice Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 John O. Miller appeals from the District Court's denial of his motion to withdraw his guilty plea.

         ¶3 In January 1991, Miller was charged with deliberate homicide for the killings of Kirk Aberle and Garrison Shupe. The State alleged that Miller had shot and killed both victims with a firearm and then set on fire the vehicle holding their bodies. The State gave notice of intent to seek the death penalty for the murders.

         ¶4 In August 1991, Miller, then represented by counsel James Goetz, entered a plea agreement under which Miller agreed to plead guilty to one count of deliberate homicide and enter an "Alford" plea to a second count of deliberate homicide. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). In exchange, the State agreed to withdraw its notice of intention to seek the death penalty and recommend two concurrent life sentences on the charges. The plea agreement contained no agreement regarding parole conditions. Miller signed an acknowledgment stating, in part, that "I understand that the County Attorney has agreed to recommend to the Court a sentence of two life sentences to run concurrently but I realize that such a recommendation is not binding upon the Court in passing sentence." During the plea colloquy, the District Court advised Miller of the constitutional rights he would be waiving by entering pleas to the charges. The District Court also advised Miller as follows:

Court: I am not bound to make a sentence that would be in accordance with the plea bargain, but I could impose any other sentence that would be appropriate under the law within the maximums provided by law for this kind of an offense without regard to the plea bargain. Do you understand that?
Defendant: Yes, Your Honor.

         ¶5 The District Court accepted and imposed the concurrent life sentences recommended by the plea agreement. However, noting that the presentence investigation assessed Miller as continuing to be a "significant danger" to the public, and that Miller could be statutorily eligible for parole in 17 years, the court restricted Miller's eligibility for parole "for a period of 24 years from the date of this order, " as "necessary for the protection of society."

         ¶6 Miller did not appeal from the judgment. In 1995, represented by counsel Edmund Sheehy, Miller filed a petition for postconviction relief that focused on the issue of parole eligibility, asserting that he was not aware of statutory parole provisions, not aware that his parole could be restricted by the sentencing court, and that the prosecutor, Blair Jones, had breached the plea agreement by requesting that Miller's parole be restricted for at least 17 and one-half years. An amended petition added claims that he was not advised of his right to appeal and that the District Court failed to give proper statutory advisories to Miller during the plea colloquy. The District Court denied Miller's petition, which this Court affirmed. State v. Miller, 278 Mont. 231, 924 P.2d 690 (1996).

         ¶7 In 2002, Miller, pro se, filed another petition for postconviction relief alleging that he suffered from a serious mental disease or defect during the entire time the crimes occurred, his pleas were entered, the sentencing hearing was conducted, "and continuing until the present date, " such that he was unable to form the necessary intent to commit a crime, as well as timely present these claims. Miller also claimed that his trial counsel rendered ineffective assistance for failing to raise a mental defect or disease defense and by advising Miller to deny that he suffered from a mental disease during the sentencing proceeding. The District Court held that Miller's ...


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