October 7 2014
DA 14-0066
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 268N
PHILLIP HOLLIDAY,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 13-862
Honorable G. Todd Baugh, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Phillip Holliday (Pro Se), Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Daniel Schwarz, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: September 10, 2014
Decided: October 7, 2014
Filed:
_____________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Holliday appeals from the District Court’s dismissal of his petition for
postconviction relief (PCR). The issues on appeal are whether the District Court erred in
denying Holliday’s request for a hearing and dismissing his petition for PCR. We affirm.
¶3 In June 2012, Holliday was charged with two counts of felony partner or family
member assault (PFMA), § 45-5-209, MCA. The charges stem from assaults on Tomi
Gray on June 6 and 7, 2012. At the time, Ms. Gray had multiple criminal charges
pending against her. Ms. Gray signed a deferred prosecution agreement (DPA) with the
Yellowstone County Attorney’s office, whereby she agreed to cooperate in the
prosecution of Holliday. Gray and Holliday’s cases were managed by different deputy
county attorneys, Ms. Callender and Mr. Carter, respectively. The county attorneys
maintain that Mr. Carter was not aware of the DPA. As a result, the State failed to
disclose the agreement to defense counsel.
¶4 Despite the county’s oversight, Holliday’s attorney, Erik Moore, obtained a copy
of the DPA from an investigator. Mr. Moore used the DPA during plea negotiations with
the county attorney. Ultimately, Holliday pled guilty to two counts of felony PFMA and
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was sentenced to three years, all suspended on each count. Soon after, Holliday’s
suspended sentence was revoked. Holliday then petitioned the District Court for
postconviction relief for failure to disclose exculpatory material, racially selective
prosecution, and prosecutorial misconduct. The District Court denied the petition and
declined to conduct an evidentiary hearing.
¶5 This Court reviews a district court’s denial of a PCR petition to determine whether
the court’s findings of fact are clearly erroneous and whether its conclusions of law are
correct. Sartain v. State, 2012 MT 164, ¶ 9, 365 Mont. 483, 285 P.3d 407. We review
discretionary rulings in PCR proceedings, including rulings related to whether to hold an
evidentiary hearing, for an abuse of discretion. State v. Morgan, 2003 MT 193, ¶ 7, 316
Mont. 509, 74 P.3d 104.
PCR Hearing
¶6 The District Court did not err in denying Holliday’s request for a hearing and
leave to conduct more discovery. The petitioner bears the burden of proving by a
preponderance of the evidence that he is entitled to relief. Herman v. State, 2006 MT 7,
¶ 44, 330 Mont. 267, 127 P.3d 422. A petition for postconviction relief must “identify all
facts supporting the grounds for relief set forth in the petition and have attached
affidavits, records, or other evidence establishing the existence of those facts.” Section
46-21-104(1)(c), MCA; State v. Finley, 2002 MT 288, ¶ 8, 312 Mont. 493, 59 P.3d 1132.
Unsupported allegations are insufficient to entitle a petitioner to a hearing. Finley, ¶ 9.
A district court “may dismiss a petition for postconviction relief without holding an
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evidentiary hearing if the procedural threshold set forth in § 46-21-104(1)(c), MCA, is
not satisfied.” Herman, ¶ 15.
¶7 Holliday failed to provide any evidence, beyond conclusory allegations,
demonstrating entitlement to relief. Statements suggesting that the materials “show
someone is lying or misleading the police” are insufficient. Further, Holliday failed to
show any evidence of racial discrimination in the prosecution and ultimately abandoned
that claim in his opening brief to this Court. Petitioner failed to meet the requirements of
§ 46-21-104(1)(c), MCA, and the District Court properly dismissed the petition without a
hearing.
¶8 Holliday further suggests that the District Court erred by collecting testimony
from Mr. Moore via a Gillham order authorizing an affidavit rather than a hearing. In re
Gillham, 216 Mont. 279, 704 P.2d 1019 (1985). Holliday contends that a hearing would
have shown the “coercion and unique circumstances” absent from Moore’s affidavit, but
provides no additional facts for this contention. The court acted within its discretion and
did not err.
Brady Violations and Prosecutorial Misconduct
¶9 The District Court did not err when it denied Holliday’s petition for postconviction
relief. Holliday alleges that the State failed to disclose Gray’s DPA and police reports
relating to an investigation at 811 N. 24th St, Billings MT, involving the petitioner and
the victim. Holliday maintains that the evidence had impeachment value.
¶10 The petitioner bears the burden of establishing a Brady violation. Gollehon v.
State, 1999 MT 210, ¶ 15, 296 Mont. 6, 986 P.2d 395. The petitioner must show that the
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State possessed evidence favorable to the defendant and the petitioner neither possessed
nor could obtain the evidence with reasonable diligence. Gollehon, ¶ 15. Additionally,
the petitioner must show that “the prosecution suppressed the favorable evidence and had
the evidence been disclosed, a reasonable probability exists that the outcome of the
proceedings would have been different.” Gollehon ¶ 15.
¶11 Holliday has failed to establish a Brady violation regarding the DPA. Most
importantly, Holliday cannot prove that he neither possessed the evidence nor could have
obtained it. Mr. Moore, Holliday’s defense attorney, knew of the DPA and used it to
negotiate a favorable plea agreement for Holliday. Moore’s affidavit specifically notes
that “[d]espite five prior felony convictions, I negotiated a three year suspended sentence
in each case to run concurrently.” There is no Brady violation when “both parties are
aware of the existence of specific evidence.” State v. Parrish, 2010 MT 212, ¶ 18, 357
Mont. 477, 241 P.3d 1041.
¶12 Holliday also failed to establish a Brady violation regarding the police report.
Holliday believes the State should have disclosed a report of an investigation conducted
at 811 N. 24th Street in Billings. Holliday references the alleged report in both his
original petition and subsequent motion, referring to the “ransack” and “invasion” of the
home. While it is unclear whether a report actually exists and why the State and District
Court did not address this claim, the result remains the same. Holliday failed to allege
anything more than conclusory assertions relating to the report and made no showing of
how the outcome of the proceedings would have been different with further disclosures.
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Moreover, he is unable to claim he was unaware of the report as the incident itself
apparently involved Holliday and the same victim.
¶13 Finally, while the State did not provide the material, there is no indication of
purposeful suppression or bad faith. Negligently suppressed evidence is only a due
process violation when it is “material and of substantial use, vital to defense, and
exculpatory.” State v. Gollehon, 262 Mont. 1, 13, 864 P.2d 249, 257 (1993) (citations
omitted). “Evidence is material if there is a reasonable probability that the result would
have been different had the evidence been disclosed to the defense.” Kills On Top v.
State, 2000 MT 340, ¶ 23, 303 Mont. 164, 15 P.3d 422 (citations omitted). Again, given
that the defense had the subject information, there is no evidence suggesting that the
results would have been different with further disclosure.
¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for memorandum opinions. The District
Court’s findings of fact are supported by substantial evidence and the legal issues are
controlled by settled Montana law, which the District Court correctly interpreted.
¶15 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
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Holliday v. State
Combined Opinion