01/10/2017
DA 16-0270 Case Number: DA 16-0270
IN THE SUPREME COURT OF THE STATE OF MONTANA 2017 MT 4N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOHN O. MILLER,
Defendant and Appellant.
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
Submitted on Briefs: December 21, 2016
Decided: January 10, 2017
Filed:
__________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.
¶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 2 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 3 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 petition was untimely, was barred as a
subsequent petition, and was not meritorious. This Court affirmed. State v. Miller, 2003
MT 311N, No. DA 02-318, 2003 Mont. LEXIS 772.
¶8 In April 2005, Miller filed a second motion to modify his sentence (Miller’s first
motion to modify was granted to properly credit his time served), claiming that his
sentence was illegal. The District Court denied the motion, and this Court affirmed.
State v. Miller, 2006 MT 86N, No. DA 05-421, 2006 Mont. LEXIS 147.
¶9 Miller became parole-eligible in 2015. Former prosecutor Jones wrote a letter
opposing parole, citing Miller’s misconduct during incarceration. The current Stillwater
County Attorney, Nancy Rohde, also wrote in opposition to Miller’s parole request,
citing community fears about Miller’s release. Miller’s parole request was denied by the
Board of Pardons and Parole (Parole Board). 4 ¶10 In January 2016, Miller filed a motion to withdraw his plea, claiming that he and
the State had originally entered an agreement “whereby Miller would plead to two counts
of Homicide in exchange for two life Sentences to run concurrent with no parole
restrictions.” He also claimed that the District Court impermissibly participated in
making the plea agreement, and failed to provide proper statutory advisories during the
plea colloquy. Miller alleged that his pleas were not entered voluntarily due to his
counsel’s misrepresentations to him that favorable parole conditions were included in the
plea agreement, which constituted ineffective assistance of counsel. Miller also asserted
that the State had breached the plea agreement by opposing his request for parole. In an
extensive order, the District Court determined that the plea agreement was not breached
by the prosecution’s actions regarding Miller’s parole request, that Miller’s pleas were
entered voluntarily, knowingly, and intelligently because Miller had provided no
objective evidence that would support a belief that the State had agreed not to oppose, or
Miller would be granted, early release, and that, despite some procedural errors by the
sentencing court in giving the statutory advisories, none of these errors violated Miller’s
due process rights, or any other constitutional right, nor constituted good cause to permit
him to withdraw his pleas. The District Court also rejected Miller’s claims of ineffective
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01/10/2017
DA 16-0270 Case Number: DA 16-0270
IN THE SUPREME COURT OF THE STATE OF MONTANA 2017 MT 4N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOHN O. MILLER,
Defendant and Appellant.
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
Submitted on Briefs: December 21, 2016
Decided: January 10, 2017
Filed:
__________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.
¶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 2 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 3 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 petition was untimely, was barred as a
subsequent petition, and was not meritorious. This Court affirmed. State v. Miller, 2003
MT 311N, No. DA 02-318, 2003 Mont. LEXIS 772.
¶8 In April 2005, Miller filed a second motion to modify his sentence (Miller’s first
motion to modify was granted to properly credit his time served), claiming that his
sentence was illegal. The District Court denied the motion, and this Court affirmed.
State v. Miller, 2006 MT 86N, No. DA 05-421, 2006 Mont. LEXIS 147.
¶9 Miller became parole-eligible in 2015. Former prosecutor Jones wrote a letter
opposing parole, citing Miller’s misconduct during incarceration. The current Stillwater
County Attorney, Nancy Rohde, also wrote in opposition to Miller’s parole request,
citing community fears about Miller’s release. Miller’s parole request was denied by the
Board of Pardons and Parole (Parole Board). 4 ¶10 In January 2016, Miller filed a motion to withdraw his plea, claiming that he and
the State had originally entered an agreement “whereby Miller would plead to two counts
of Homicide in exchange for two life Sentences to run concurrent with no parole
restrictions.” He also claimed that the District Court impermissibly participated in
making the plea agreement, and failed to provide proper statutory advisories during the
plea colloquy. Miller alleged that his pleas were not entered voluntarily due to his
counsel’s misrepresentations to him that favorable parole conditions were included in the
plea agreement, which constituted ineffective assistance of counsel. Miller also asserted
that the State had breached the plea agreement by opposing his request for parole. In an
extensive order, the District Court determined that the plea agreement was not breached
by the prosecution’s actions regarding Miller’s parole request, that Miller’s pleas were
entered voluntarily, knowingly, and intelligently because Miller had provided no
objective evidence that would support a belief that the State had agreed not to oppose, or
Miller would be granted, early release, and that, despite some procedural errors by the
sentencing court in giving the statutory advisories, none of these errors violated Miller’s
due process rights, or any other constitutional right, nor constituted good cause to permit
him to withdraw his pleas. The District Court also rejected Miller’s claims of ineffective
assistance of counsel or inappropriate contact with the District Court regarding the plea
agreement.
¶11 Miller challenges the rulings of the District Court on these issues. Under the law
governing Miller’s case, a defendant may withdraw his plea at any time “for good cause 5 shown.” Section 46-16-105(2), MCA (1991). This Court reviews a district court’s denial
of a motion to withdraw a guilty plea de novo, because whether a plea was entered
voluntarily is a mixed question of law and fact. State v. Valdez-Mendoza, 2011 MT 214,
¶ 12, 361 Mont. 503, 260 P.3d 151.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s findings of fact were
not clearly erroneous and its interpretation and application of the law was correct.
¶13 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ BETH BAKER