                                           No. 02-318

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 311N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JOHN O. MILLER, IV,

              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, IV, Pro Se, Deer Lodge, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
                     Assistant Attorney General; Helena, Montana

                     John Petak III, Stillwater County Attorney, Columbus, Montana



                                                   Submitted on Briefs: September 25, 2003

                                                             Decided: November 13, 2003


Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(i), Montana Supreme Court 1996 Internal

Operating Rules (Memorandum Opinions), we determine that the legal issues raised in this

appeal are clearly controlled by settled Montana law; that the issues are factual and there

clearly is sufficient evidence to support the findings of fact below; and that the court’s

conclusions of law are correct. The following decision shall not be cited as precedent but

shall be filed as a public document with the Clerk of the Supreme Court and shall be reported

by case title, Supreme Court cause number and result to the State Reporter Publishing

Company and to West Group in the quarterly table of noncitable cases issued by this Court.

¶2     John O. Miller, IV (Miller), appeals the District Court’s denial of his petition for

postconviction relief. We affirm.

¶3     Miller was charged with committing two counts of deliberate homicide occurring on

or about September 14, 1990. On August 2, 1991, Miller entered one Alford plea and one

guilty plea to the two counts at a district court change of plea hearing. Prior to sentencing,

a presentence investigation and psychological evaluation were conducted. The District Court

then sentenced Miller to two concurrent life sentences.         Miller filed a petition for

postconviction relief in January of 1995 alleging he did not understand the maximum penalty

possible, he was not aware his parole eligibility could be restricted, and the State breached

the plea agreement by making a recommendation regarding how many years Miller should

serve before becoming eligible for parole. Miller later amended his petition to include an

ineffective assistance of counsel claim. The court denied Miller’s petition and upheld his




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conviction and sentence. On appeal, we affirmed the court’s denial of Miller’s petition for

postconviction relief. State v. Miller (1996), 278 Mont. 231, 924 P.2d 690.

¶4     Miller filed a second petition for postconviction relief on February 6, 2002, well after

the five-year statutory bar (in effect at the time of his conviction) for such petitions. This

second petition alleged that Miller was denied effective assistance of counsel, Miller suffered

from a serious mental disease or defect that should have rendered his guilty pleas

unacceptable, the District Court imposed additional punishment based on Miller’s serious

mental disease or defect, and Miller was unable to present the petition in a timely manner

because of his alleged mental disease or defect. After carefully reviewing the documents

Miller submitted with his petition, the District Court denied Miller’s petition without holding

an evidentiary hearing. Miller presently appeals from this denial of his second petition for

postconviction relief.

¶5     We review a district court’s denial of a petition for postconviction relief to determine

if the court’s conclusions of law are correct and whether its findings of fact are clearly

erroneous. State v. Root, 2003 MT 28, ¶ 7, 314 Mont. 186, ¶ 7, 64 P.3d 1035, ¶ 7 (citation

omitted). “Discretionary rulings in postconviction relief proceedings, including rulings

relating to whether to hold an evidentiary hearing, are reviewed for abuse of discretion.”

State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9 (citation omitted).

¶6     The District Court followed the statutory guidelines for the filing of postconviction

relief claims. Section 46-21-105(1), MCA. The court also closely examined the documenta-

tion Miller provided concerning his claim of severe mental disease or defect. No abuse of


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discretion occurred. The court’s findings of fact were not clearly erroneous. The court’s

conclusions of law were correct. We affirm.



                                                      /S/ W. WILLIAM LEAPHART

We concur:

/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ JOHN WARNER
/S/ PATRICIA COTTER




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