State v. Miller

PER CURIAM.

In this pro se appeal by John F. Miller from denial of his petition for post conviction relief, he argues that the issue of merger of offenses previously raised and resolved by the Supreme Court in his direct appeal, State v. Miller, 108 N.J. 112, 527 A.2d 1362 (1987) was subsequently reinterpreted in State v. Dillihay, 127 N.J. 42, 601 A.2d 1149 (1992). He urges that his sentence must therefore be modified to merge his conviction under N.J.S.A 2C:24-4(a) for Endangering the Welfare of a Child with his conviction for Aggravated Sexual Assault, N.J.S.A. 2C:14-2(a).

The motion judge concluded that the Supreme Court had already resolved the identical merger issue raised by the post-conviction motion, making it the law of this case, and that Dillihay had not signaled a change in the Miller holding. We agree, and affirm.

We note that the additional element of breach of the unique parental duty here involved and considered by the Supreme Court in Miller, was obviously not deemed by the Dillihay majority to be analogous to the offense elements involved in the school zone drug cases. The dissents in Dillihay, supra, 127 N.J. at 60, 601 A.2d 1149, and 241 N.J.Super. 553, 556-557, 575 A.2d 876 (App.Div.1990), (which reference State v. Gonzalez, 241 N.J.Super. 92, 574 A.2d 487 (App.Div.1990), certif. den. 122 N.J. 400, 585 A.2d 399 (1990), rev’d in part, 123 N.J. 462, 588 A.2d 816 (1991), and the dissent in State v. Soto, 241 N.J.Super. 476, 481-482, 575 A.2d 501 (App.Div.1990), aff'd, 126 N.J. 310, 598 A.2d 873 (1991)), make clear that arguments suggesting such analogy were considered and implicitly rejected by the Dillihay majority opinion. Indeed, Dillihay cites Miller, and State v. Cole, 120 N.J. 321, 327, 576 A.2d 864 (1990), with approval, and with no hint of retreat therefrom. Dillihay, supra, 127 N.J. at 46, 47, 601 A.2d 1149.

Affirmed.