Miller v. State

2014 UT App 280_________________________________________________________
THE UTAH COURT OF APPEALS
ROMIE H. MILLER III,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Per Curiam Decision
No. 20140510-CA
Filed November 28, 2014
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 140900132
Romie H. Miller III, Appellant Pro Se
Before Judges GREGORY K. ORME, JAMES Z. DAVIS, and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Romie H. Miller III appeals the dismissal of his petition for
a determination of factual innocence.1 We affirm.
¶2 On direct appeal, we affirmed Miller’s conviction on ten
counts of sexual exploitation of a minor, a second degree felony.
See State v. Miller, 2004 UT App 445, 104 P.3d 1272. We noted that
“part of Defendant’s defense was that he collected the photographs
to later provide them to federal law enforcement authorities.” Id.
¶ 19. Thus, Miller’s “intent in possessing the child pornography
was a significant question for the jury to determine.” Id.
1. Because the State was not required to respond to the petition, the
State also did not appear on appeal.
Miller v. State
¶3 In 2014, Miller filed a petition seeking a determination of
factual innocence. See Utah Code Ann. § 78B-9-402 (LexisNexis
Supp. 2013). Utah Code section 78B-9-402(1) allows a person
convicted of a felony to petition the district court “for a hearing to
establish that the person is factually innocent of the crime or crimes
of which the person was convicted.” Id. § 78B-9-402(1). The petition
shall assert factual innocence under oath and “aver, with
supporting affidavits or other credible documents that . . . newly
discovered material evidence exists that, if credible, establishes that
the petitioner is factually innocent.” Id. § 78B-9-402(2)(a). “Newly
discovered material evidence” in support of a petition for a
determination of factual innocence is “evidence that was not
available to the petitioner at trial . . . and which is relevant to the
determination of the issue of factual innocence.” Id. § 78B-9-
401.5(3) (2012). To assert a claim of factual innocence, Miller must
aver under oath that he did not “engage in the conduct for which
[he] was convicted.” Id. § 78B-9-401.5(2). However, “[i]f it is
apparent to the court that the petitioner is either merely relitigating
facts, issues, or evidence presented in previous proceedings or
presenting issues that appear frivolous or speculative on their
face,” the court shall dismiss the petition.” Id. § 78B-9-402(9)(b).
¶4 Miller’s petition attached heavily redacted pages that were
delivered by the FBI to Miller’s trial counsel that might suggest
that Miller provided information to the FBI in 1994. The petition
was also accompanied by two affidavits dated in 2003 in which the
affiants repeated Miller’s statements to them that he was collecting
images constituting child pornography with the intent to turn the
material over to law enforcement. Miller also claims that his trial
counsel was ineffective in refusing to subpoena teachers from a
junior high school, where he apparently had served in a volunteer
capacity, that he exhibited exemplary conduct toward the students.
Finally, Miller challenged the sufficiency of the evidence to support
his convictions and argued both that his trial counsel was
ineffective and that the prosecutor engaged in misconduct.
¶5 The district court determined that Miller “failed to set forth
any newly discovered evidence” and that the allegations of
20140510-CA 2 2014 UT App 280Miller v. State
ineffective assistance of counsel and prosecutorial misconduct
would not, if proven, establish that he did not engage in the
conduct for which he was convicted. The court further found that
Miller sought to relitigate the underlying facts and issues
presented at trial. Finally, the court concluded that arguments
regarding the sufficiency of the evidence are not properly
addressed through a factual innocence petition.
¶6 An appellate court reviews “de novo the district court’s
summary adjudication of [a] factual innocence [petition].” State v.
Gressman, 2013 UT 63, ¶ 6, 323 P.3d 998.
[A] petitioner seeking a factual innocence
determination may not merely attack the sufficiency
of the evidence supporting his conviction or attempt
to overturn an adjudication of guilt on technical
grounds; the petitioner must affirmatively prove
innocence of both the crime for which the petitioner
was convicted and any related criminal conduct by
clear and convincing evidence.
Id. ¶ 39. In Brown v. State, 2013 UT 42, 308 P.3d 486, the Utah
Supreme Court stated that the procedure for determination of a
factual innocence petition “contemplates a two-stage process.” Id.
¶ 40. Only if a petitioner meets the “threshold burden” to obtain a
hearing does the post-conviction court turn to the second stage of
the process. Id.
¶7 Miller first challenges the district court’s finding that the
petition failed to set forth newly discovered evidence that would
establish factual innocence. Miller claims the evidence “was new
to the trial court [and] is thus admissible because counsel
deliberately failed to exercise reasonable diligence in uncovering
and entering the documents into evidence.” Miller relies upon
Utah Code section 78B-9-402(3)(b), which states, “Upon entry of a
finding that the petition is sufficient under Subsection (2)(a), the court
shall then review the petition to determine if Subsection (3)(a) has
been satisfied.” Utah Code Ann. § 78B-9-402(3)(b) (emphasis
20140510-CA 3 2014 UT App 280Miller v. State
added). The district court was not required to apply subsection
(3)(a) because it found the petition to be insufficient under
subsection (2)(a). Furthermore, Miller could not satisfy subsection
(3)(a) because the evidence was known to Miller and his trial
counsel at the time of trial, and no court has found ineffective
assistance based upon a failure to uncover this evidence.
¶8 We affirm.
20140510-CA 4 2014 UT App 280