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State of New Jersey v. Frank Miller

April 1, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK MILLER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. M-320-72.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: March 2, 2011

Before Judges Fisher and Fasciale.

Thirty-seven years after his conviction for murder, for which he was sentenced to a term of life imprisonment that he is still serving, defendant appeals from the denial of his petition for post-conviction relief (PCR). Defendant argues that excusable neglect exists to file out of time because he did not know about the existence of a PCR petition. He contended that his trial counsel was ineffective because he failed to consider a diminished capacity defense and miscalculated jail credits. We affirm.

While on parole from a 1969 conviction for carnal abuse, defendant murdered the victim by slashing her throat, severing her windpipe and jugular vein. The victim was found nude face down in a stream with cutting wounds in her pelvic area, vagina, and right breast. Defendant was given his Miranda*fn1

warnings and confessed to the crime. The confession was the primary evidence of guilt.

On direct appeal we concluded that the confession was not made voluntarily and reversed in an unreported decision. State v. Miller, No. A-1275-73 (App. Div. October 27, 1975). The Supreme Court reversed and reinstated defendant's life sentence. State v. Miller, 76 N.J. 392 (1978).

Defendant thereafter unsuccessfully sought a writ of habeas corpus in the federal courts, but the Supreme Court of the United States remanded for a determination of the voluntariness of the confession. Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985). It was ultimately determined that the manner in which the confession was elicited did not offend the federal constitution. Miller v. Fenton, 796 F.2d 598, 613 (3d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986).

In 2008, defendant filed his PCR petition, alleging the ineffective assistance of counsel and the improper calculation of jail credits. On September 18, 2009, the PCR judge issued an oral opinion and concluded that defendant failed to establish a prima facie case, did not show excusable neglect, and was given the correct jail credit.

On appeal, the defendant raises the following points:

The Court, should reverse the denial of defendant's petition for post-conviction relief and remand this matter for an evidentiary hearing on defendant's claims.

1. Excusable neglect or exceptional circumstances existed to overcome the time bar.

2. Defendant established a prima facie case of ineffective assistance of counsel that at least ...


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