Double homicide guilty pleas stand

A man serving a life sentence for killing two friends near Absarokee then burning their bodies will not be allowed to withdraw his guilty pleas, more than 24 years after the case was closed.
John O. Miller IV, 45, was seeking to have a district judge allow him to withdraw his pleas based on the following:
•The state allegedly breached the terms of the plea agreement by opposing his parole.
•His pleas were allegedly not made voluntary because he did not know what the maximum sentence might be.
•Due process had been denied to him at his plea and sentencing hearings.
•He had ineffective counsel.
In a ruling dated April 18, District Judge Russell C. Fagg categorically denied Miller’s motion, stating “he had not established good cause to withdraw his plea” on any of the four issues he broached.

THE CRIME
On Sept. 14, 1990, Miller shot and killed Kirk Aberle, 20, and Garrison Shupe, 19, with a .41 caliber Ruger handgun without any warning as the men sat in Shupe’s vehicle drinking and smoking marijuana at a gravel pit north of Absarokee, according to court documents.
A fourth man was also present, who Miller forced to help following the shootings by pointing the gun at him and threatening to blow his “(expletive) brains out” unless he settled down, according to court documents.
Miller drove Shupe’s vehicle to Joliet Road and set fire to it. The fire was discovered in the early morning hours. The bodies had to be identified through forensic tests.
At the time, Shupe was a witness in a felony criminal mischief case pending against Miller. Prior to the shooting, Miller had told a couple that authorities were trying to put him in prison and that Shupe was going to testify against him, but not to worry because “everything would be taken care of,” according to court documents.
Miller was sentenced in November 1991 to two concurrent life sentences after pleading guilty to two counts of deliberate homicide. A parole restriction of 24 years was put in place due to the results of a psychological evaluation.
One of those pleas was an Alford Plea, meaning Miller did not admit guilty, but acknowledged there was overwhelming evidence to produce a guilty verdict.
Miller became eligible for parole in 2015 and was denied.

PLEA AGREEMENT
Miller argued that prosecutors and his attorney “induced” him to accept the plea agreement by making him believe the state would not oppose his parole after serving 30 years if he behaved in prison, according court documents.
Miller submitted letters from his attorney as proposed evidence. The letters were dated after he had already accepted the plea agreement and “fail to show any statements about parole restrictions or parole agreements,” according to Fagg’s ruling.
Blair Jones, who is the current 22nd Judicial District judge, was the Stillwater County Attorney who prosecuted Miller. In a letter sent to the Board of Pardons and Parole last year, Jones strongly opposed Miller’s release. Jones specifically noted the sentencing judge’s 24-year parole restriction was made because “Mr. Miller has a severe anti-social personality disorder that could lead to recurrent violence,” according to court documents.
“Mr. Miller was an extremely violent offender and I am informed that he continued the violent conduct while incarcerated,” Jones wrote in his letter. “...it is neither prudent nor responsible to release Mr. Miller into the general population given his history of violence resulting in the grisly deaths of two human beings.”
Jones also said Miller had not presented evidence that a current psychological evaluation had been performed and determined whether or not he was safe to be released back into society, as the sentencing judge had ordered.
Currently Stillwater County Attorney Nancy Rohde also submitted a letter opposing Miller’s parole, noting that a presentence investigation report prepared at the time of sentence found that Miller had “an extensive history of aggressive and antisocial behavior well documented in reports from law enforcement agencies, the public schools and mental health professionals,” according to Rohde’s letter cited in court documents.
Rohde also cited the findings of the psychologist who evaluated Miller prior to his 1991 sentencing, who said “a severe antisocial personality disorder usually necessitates penal rather therapeutic interventions because of the incapacitating and intractable nature of the condition.”
Rohde also wrote an 18-page response brief to Miller’s recently denied motion.

VOLUNTARY PLEAS
Miller showed “no objective evidence to support his early release or that he would be granted early release. Miller was aware he was pleading guilty in exchange for two concurrent life sentences and the State’s promise to take the death penalty off the table. The state fulfilled its promise,” according to Fagg’s ruling.
Fagg also ruled that Miller had been fully advised of the charges against him, maximum possible penalties involved and demonstrated this by his answers in court at the time.

DUE PROCESS MET
Miller argued sentencing District Judge Maurice Colberg Jr. “illegally participated” in the plea agreement and allegedly did not advise him of the legally required instructions regarding the making, accepting and sentencing of plea agreements.
Fagg ruled that upon a thorough review of court transcripts, Judge Colberg did not advise Miller of some of his rights involving plea agreements or that the judge was not required to follow a plea agreement.
“However, the court finds Miller has not shown the court’s failures in this respect constitute good cause to allow him to withdraw his guilty pleas nearly 25 years after they were made.”
Additionally, Fagg noted that Judge Colberg did not reject the plea agreement.

DEFENSE COUNSEL NOT INEFFECTIVE
The only evidence Miller presented regarding defense attorney Jim Goetz being ineffective was a letter in which Goetz stated he was “trying to set up a conference call with the judge and Blair Jones.”
However, because the prosecutor would also have been involved in that, it is not considered an ex parte communication, Fagg ruled.
Fagg also rejected Miller’s argument that Goetz failed by not informing Miller that by pleading guilty he was giving up the right to a trial because the plea agreement, which Miller signed, contained that information.

PREVIOS MOTIONS
The Montana Supreme Court has previously denied two motions from Miller. The first was in 1995 in which Miller argued ineffective counsel alleging his attorney had not told him he could appeal the sentence. The second came in 2002 in which Miller argued he suffered from “serious mental defect or disease” when the crimes were committed.
In 2005, Miller filed a motion in district court arguing that the psychological evaluation he was required to undergo prior to sentencing and the resulting restrictions on his sentence were illegal. That motion was denied.
The results of that psychological evaluation were in large part the factor that led to the 24-year parole restriction.