Miller v. State

• Decision Date: 28 November 2014
• Docket Number: No. 20140510–CA.,20140510–CA.
• Citation: 340 P.3d 795,2014 UT App 280
• Court: Utah Court of Appeals
• Parties: Romie H. MILLER III, Petitioner and Appellant, v. STATE of Utah, Respondent and Appellee.

340 P.3d 795
2014 UT App 280

Romie H. MILLER III, Petitioner and Appellant
v.
STATE of Utah, Respondent and Appellee.

No. 20140510–CA.

Court of Appeals of Utah.

Nov. 28, 2014.

340 P.3d 795

Romie H. Miller III, Appellant Pro Se.

Before Judges GREGORY K. ORME, JAMES Z. DAVIS, and MICHELE M. CHRISTIANSEN.

Decision

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.

¶ 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

340 P.3d 796

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...