r v. R., 2011 NBCA 52

COURT OF APPEAL OF NEW BRUNSWICK 126-10-CA RODNEY STUART MILLER APPELLANT - and - HER MAJESTY THE QUEEN RESPONDENT RODNEY STUART MILLER APPELANT - et - SA MAJESTÉ LA REINE INTIMÉE Miller v. R., 2011 NBCA 52 Miller c.

R., 2011 NBCA 52 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge Robertson L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: October 1, 2009 Appel d’une décision de la Cour du Banc de la Reine : Le 1er octobre 2009 History of the Case: Historique de la cause : Decision under appeal: 2009 NBQB 278 Décision frappée d’appel : 2009 NBQB 278 , 2009 NBBR 278 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: April 28, 2011 Appel entendu : Le 28 avril 2011 Judgment rendered June 2, 2011 Jugement rendu : Le 2 juin 2011 Reasons for judgment by: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard

Concurred in by: The Honourable Justice Robertson The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Bell Counsel at the hearing: For the appellant: Rodney Stuart Miller appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : Rodney Stuart Miller a comparu en personne Pour l’intimée : Cameron H. Gunn THE COURT The motion for an extension of time to serve and file the application for leave to appeal is granted. The applications for leave to appeal the conviction and the sentence are dismissed.

LA COUR La motion en prorogation du délai pour signifier et déposer la demande d’autorisation d’appel est accueillie. Les demandes en autorisation d’appel de la déclaration de culpabilité et de la peine sont rejetées. The judgment of the Court was delivered by RICHARD J.A. [1] Rodney Stuart Miller wants to appeal his conviction and sentence on a charge of first degree murder. He did not file his Notice of Appeal within the time prescribed in the Rules of Court . He seeks an extension of time, stating that he had problems getting assistance at the first two correctional institutions where he was incarcerated.

The Attorney General does not oppose the extension. In the circumstances, I would extend the time for Mr. Miller to file his application for leave to appeal to September 17, 2010, the date upon which his documents were served on the senior office r of the penal institution in which Mr. Miller was imprisoned (Rule 63.05(2)).

[2] Mr. Miller was charged with the first degree murder of his newborn son and with disposing of the child’s body with intent to conceal the child’s birth, offences that are set out in s. 235(1) and 243 of the Criminal Code , respectively. He pled guilty to both charges. However, the charge under s. 243 was stayed. [3] The guilty plea to the first degree murder charge came late in the process. Mr. Miller initially offered a plea of guilty to second degree murder, but the prosecution rejected the plea and a trial was held in the Court of Queen’s Bench before a judge alone.

On October 1, 2009, at the close of the prosecution’s case, the defence elected not to call any evidence. At that point, the prosecutor made submissions to the judge in support of a conviction on the offence as charged. The prosecutor argued there was proof beyond a reasonable doubt that Mr. Miller and the child’s mother had hidden the pregnancy and that , over the course of a few months , had planned to kill the newborn if the baby were born alive. When the child was delivered, Mr. Miller felt the boy’s heart beating and, as planned, stabbed him through the heart.

When it came time for defence counsel to present arguments, Mr. Miller’s lawyer informed the judge that Mr. Miller now intended to plead guilty to first degree murder. The lawyer asked the judge to confirm this with Mr. Miller himself. As a result, the following exchange occurred: THE COURT: Mr. Miller, I’d ask you to stand, please. You’ve heard your counsel tell me that you want to – to change your plea. THE ACCUSED: Yes. THE COURT: And this is a – is most unusual, Mr. Miller, and I’d like you to explain to me what you want to do. What do you want to do, Mr. Miller?

THE ACCUSED: I want to change my plea from not guilty on the first to guilty on the first. THE COURT: And what do you mean by first? THE ACCUSED: First degree murder. THE COURT: And what do you understand first degree murder is, sir?

THE ACCUSED: A planned act of murder. THE COURT: And there’s another word we use, planned and deliberate. THE ACCUSED: Yes. THE COURT: Do you understand that? THE ACCUSED: Yes. THE COURT: Did you hear everything Mr. DiPaolo said this morning? THE ACCUSED: Yes. THE COURT: And have you had a full opportunity to discuss this with Mr. Hansen? THE ACCUSED: Yes. THE COURT: Let me read the formal charge to you, sir.

RODNEY STUART MILLER stands charged that: Count #1 He, between the 15th day of January, A.D., 2009 and the 23rd day of January, A.D., 2009, both dates inclusive, at or near Moores Mills, in the County of Charlotte, Province of New Brunswick, did commit first degree murder on the person of Baby RUSSELL, contrary to Section 235(1) of the Criminal Code of Canada and the amendments thereto. Do you understand that charge, sir?

THE ACCUSED: Yes. THE COURT: Do you understand what is the sentence prescribed by law for someone who is – who pleads guilty to that offence? THE ACCUSED: Yes. THE COURT: What’s that sentence, sir? THE ACCUSED: 25 years. THE COURT: And what else? THE ACCUSED: For life. THE COURT: Life with no eligibility for parole for 25 years? THE ACCUSED: Yes. THE COURT: You understand that, sir? THE ACCUSED: Yes. THE COURT: Have you had a full opportunity to talk to Mr. Hansen about this? THE ACCUSED: Yes. THE COURT: Would you like to have an opportunity to talk to any other lawyer?

Would you like us to adjourn this sentencing – or this matter, rather – to another date so that you could talk to another lawyer? THE ACCUSED: No.

THE COURT: Would you like to make a phone call to Legal Aid Duty Counsel? THE ACCUSED: No. THE COURT: I – I ask you these questions because one thing that happens sometimes is people want to go back on a plea and they – the tendency then is to blame their former lawyer. MR. HANSEN: I’ll – I’ll accept that. THE COURT: You understand that, sir? THE ACCUSED: Yes. THE COURT: So, to this charge how do you plead? THE ACCUSED: Guilty. [4] After the guilty plea, the judge went on to analyze the evidence and stated that, even disregarding the plea, he would have been satisfied beyond a reasonable doubt of Mr.

Miller’s guilt. With the plea, he evidently reached the same conclusion. Thus, he convicted Mr. Miller of first degree murder and imposed the sentence prescribed by law . [5] Mr. Miller wishes to appeal his conviction and sentence. His grounds of appeal read as follows: The lawyer […] that handled my case did nothing for me during the trial. He did not get up to ask any questions like he said he would. Then on the third day of trial he just stood up and said I was guilty of first degree murder. [The lawyer] would not let me see any paperwork to this case before the trial.

He told me that he could not see me doing much time for this, because he felt like there might not be a murder at first when this all started.

[6] Before he can appeal his conviction, Mr. Miller needs towithdraw his guilty plea. This Court has stated time and again that the withdrawal ofa guilty plea involves a question of mixed law and fact for which, according to s.675(1)(a)(ii) of the Criminal Code, leave to appeal is required: Guignard v. R., 2003NBCA 46, 260 N.B.R. (2d) 396; Brun v. R., 2006 NBCA 17, 296 N.B.R. (2d) 147;Winmill v. R., 2006 NBCA 77, 300 N.B.R. (2d) 125; Meade v. R., 2007 NBCA 56,[2007] N.B.J. No. 237 (QL); Chiasson v. R., 2008 NBCA 36, [2008] N.B.J. No. 171(QL); Edgett v. R., 2008 NBCA 65, 336 N.B.R. (2d) 321; Brooks v.

R., 2008 NBCA 49,331 N.B.R. (2d) 268; Tower v. R., 2010 NBCA 27, 358 N.B.R. (2d) 190; and Monteithv. R., 2010 NBCA 77, [2010] N.B.J. No. 346 (QL). [7] In Chiasson, the Court summarized the principles thatgovern an application for leave to withdraw a guilty plea: The guiding principles in considering an application for leave to withdraw a guiltyplea were summarized in Brun (at para. 8): A court of appeal may allow an appellant to withdraw a guilty plea if the appellantcan show that the plea was invalid, in the sense that it was not made voluntarily orunequivocally or that it was not informed: see R. v.

Claveau (L.F.) (2003), 2003NBCA 52 , 260 N.B.R. (2d) 192 (C.A.) and R. v. Nowlan (F.E.), [2005] N.B.J.No. 474 (C.A.) (QL). As noted in R. v. Guignard, at para. 7, an appellant "must showvalid grounds which would allow [him or her] to withdraw [his or her] guilty plea.This must be done by providing convincing evidence." In R. v. Claveau (L.F.) (2003), 260 N.B.R. (2d) 192, [2003] N.B.J. No. 285 (QL), 2003NBCA 52, Deschênes J.A. explained as follows at para. 7: For the plea to be valid, it must be made voluntarily and unequivocally.

The pleamust also be an informed one, in the sense that the accused must be aware of thenature of the allegations made against him and of the effect and the consequences ofhis plea. See R. v. Lyons, (SCC), [1987] 2 S.C.R. 309. As the previous decisions of this Court clearly indicate, a court of appeal may allowan appellant to withdraw a guilty plea only if the appellant can provide convincingevidence that the plea was invalid, in the sense that it was not made voluntarily orunequivocally or that it was not informed. [paras. 6-8]

[8] Mr. Miller has not adduced any evidence that his plea was invalid. To the contrary, the exchange between the judge and Mr. Miller reproduced above clearly shows the plea was voluntary, unequivocal and informed. In my view, the judge’s approach to ensuring Mr. Miller was making the plea voluntarily, unequivocally and properly informed is a textbook example for these types of inquiries.

It simply leaves no doubt on the question. [9] Since there is not even a suspicion that the plea might have been invalid, it follows that the application for leave to appeal conviction must be dismissed. [10] As for the application for leave to appeal sentence, the sentence passed is one prescribed by law. There is no basis for an appeal of this sentence and, accordingly, that application must also be dismissed. [11] For these reasons, I would extend the time for Mr.

Miller to file his application for leave to appeal, but I would dismiss both his application for leave to appeal the conviction and the one for leave to appeal the sentence. ____________________________ J.C MARC RICHARD, J.A. WE CONCUR: ________________________________ J.T. ROBERTSON, J.A. ________________________________ B. RICHARD BELL, J.A.