J-S71042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MICHAEL ALLEN MONTGOMERY

                            Appellant               No. 983 WDA 2015


                   Appeal from the PCRA Order May 20, 2015
               In the Court of Common Pleas of Lawrence County
              Criminal Division at No(s): CP-37-CR-0000595-2006
                            CP-37-CR-0000655-2006


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                           FILED JANUARY 20, 2016

        Michael Allen Montgomery appeals the order entered May 20, 2015, in

the Lawrence County Court of Common Pleas, denying his third petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Montgomery seeks relief from the judgment of sentence of an aggregate five

and one-half to 20 years’ imprisonment, imposed in April and July of 2007,

at two separate criminal dockets. On appeal, Montgomery argues the PCRA

court erred in denying his petition as untimely filed without first conducting

an evidentiary hearing. We affirm.



____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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     The   facts   and   procedural   history   underlying   this   appeal   were

summarized by a panel of this Court in the memorandum decision affirming

the denial of his second PCRA petition:

           At criminal action number 595 of 2006, [Montgomery] was
     charged with burglary, theft, and receiving stolen property after
     DNA of blood found at the scene of a crime was found to match
     [Montgomery]’s DNA. Specifically, on October 11, 2004, Family
     Craft Center, which was located at 1003 Wilmington Avenue,
     New Castle, was burglarized. Approximately $700 in cash was
     taken from the register, and blood was found on broken glass on
     the floor inside that establishment.          A jury convicted
     [Montgomery] of those offenses, and [he] was sentenced in that
     matter on April 23, 2007, to three to [10] years incarceration.

            At criminal action number 655 of 2006, [Montgomery] was
     charged with burglary, theft, and criminal mischief in connection
     with events occurring sometime during the night of March 10,
     2005, or early morning hours of March 11, 2005, at the Bob
     Evans Restaurant on 2635 West State Street, Union Township.
     That business was burglarized, steaks were taken, and $900
     worth of property damage was caused by someone attempting to
     forcibly enter the safe. DNA located on a cigarette butt left at
     the scene of that crime by the perpetrator matched the DNA of
     [Montgomery], who subsequently admitted to police that he
     committed that offense. After he was convicted of burglary and
     criminal mischief in connection with the Bob Evans burglary,
     [Montgomery] was sentenced on July 14, 2007, to four and one
     half to [12] years imprisonment, and that sentence was imposed
     consecutively to the previous one.

           [Montgomery] appealed both sentences, the appeals were
     consolidated, and we affirmed both sentences on June 27, 2008.
     Commonwealth v. Montgomery, 959 A.2d 465 (Pa. Super.
     2008) (unpublished memorandum). In that adjudication, we
     rejected a challenge to a search warrant used to obtain
     [Montgomery]’s blood. The search warrant was obtained after
     Arthur Page, who was [Montgomery]’s accomplice in unrelated
     burglaries, informed police that [Montgomery] admitted to
     commission of the burglaries at issue herein. After we affirmed,
     [Montgomery] did not seek further review in the Supreme Court.


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           [Montgomery] thereafter filed a timely PCRA petition as to
     both criminal action numbers.            Counsel was appointed.
     [Montgomery]’s first PCRA petitions were thereafter resolved by
     mutual agreement. Specifically, the Commonwealth consented
     to a reduction in the minimum sentence imposed at 655 of 2006
     by two years, to two and one-half years imprisonment. In
     return, [Montgomery] agreed not to seek further PCRA relief at
     either that action or action number 595 of 2006. The agreement
     was that, in exchange for the two-year reduction in
     [Montgomery]’s minimum sentence, the outstanding petitions
     were settled and the accord would “resolve all issues raised in all
     the pending motions for post conviction collateral relief, and no
     further petitions could be filed.” N.T. Hearing, 5/5/11, at 5.

           The PCRA court ascertained that [Montgomery] understood
     and agreed to the terms of the agreement outlined in his
     presence. [Montgomery] represented that he discussed the
     agreement with counsel in private, was not under the influence
     of any substances, voluntarily entered the accord, and it was his
     intent that “once the sentence modification” was completed, he
     would “not file additional PCRA cases” at 595 of 2006 or at 655
     of 2006. Id. at 6. [Thereafter, Montgomery filed a petition to
     modify his sentence in accordance with the parties’ agreement.
     The Commonwealth joined in the petition, and on July 25, 2011,
     the PCRA court entered an order directing that Montgomery’s
     aggregate sentence at docket 655 of 2006 be reduced to two
     and one-half to 10 years’ imprisonment.             See Order,
     7/25/2011.]

            On February 28, 2012, [Montgomery, acting pro se,] filed
     a second PCRA petition at both actions at issue herein. In those
     documents, [Montgomery] averred that he recently discovered
     that State Trooper Eric Weller, who obtained the warrant to
     obtain samples of [Montgomery]’s blood, had filed a false
     affidavit of probable cause to obtain that warrant. Specifically,
     [Montgomery] alleged that he just learned that Page denied
     telling Trooper Weller that [Montgomery] admitted to Page that
     [Montgomery] committed the burglaries where the DNA evidence
     was found.       Counsel was appointed, and counsel sought
     permission to amend the petitions. The Commonwealth opposed
     amendment on the basis that [Montgomery] had agreed not to
     seek any further PCRA review in these actions in exchange for a
     reduced sentence.



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              Counsel then filed amended petitions. The Commonwealth
      responded by again asserting that the agreement barred the
      request for PCRA relief at both actions. The court issued notice
      of intent to dismiss the petitions, which [Montgomery]
      contested. He maintained that the issue raised in his second
      petitions was distinct from those raised in the first PCRA
      petitions. [Montgomery] continued that the contention raised in
      the second PCRA petitions could be litigated since the agreement
      encompassed only the issues raised in the first PCRA petitions
      and counsel’s representation of [Montgomery] in connection with
      litigation of them.

Commonwealth v. Montgomery, 97 A.3d 797 [608 & 609 WDA 2013] (Pa.

Super. 2014) (unpublished memorandum at 2-5).

      On appeal, a panel of this Court affirmed the denial of relief,

concluding Montgomery’s second PCRA petition was untimely filed. See id.

To that end, the panel found Montgomery’s judgment of sentence became

final on July 27, 2008, and, therefore, his petitions filed on February 28,

2012, were “patently untimely.”      Id. (unpublished memorandum at 8).

Further, the panel determined Montgomery failed to demonstrate newly-

discovered facts that tolled the timing requirements. The panel concluded

Montgomery “knew from the inception of these two cases that the warrant

utilized to obtain his DNA” was based upon statements Page purportedly

made to Trooper Weller. Id. (unpublished memorandum at 9). Further, the

panel opined Montgomery did not explain why he was unable to locate and

interview Page sooner, and failed to demonstrate “he exercised due diligence

in discovering Trooper Weller’s purported falsehood.”        Id.   Because

Montgomery was unable to overcome the untimeliness of his petition, the

panel affirmed the denial of relief on February 7, 2014.


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       Six months later, on August 8, 2014, Montgomery filed the instant

PCRA petition, his third, pro se.         Counsel was appointed, and, on April 2,

2015, submitted an amended petition asserting prior PCRA counsel’s

ineffectiveness for failing to properly support Montgomery’s contention that

his second petition was timely.         On April 22, 2015, the PCRA court issued

notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition

without conducting an evidentiary hearing, and Montgomery filed a timely

response.       Thereafter,     on   May       20,   2015,   the   PCRA   court   denied

Montgomery’s petition as untimely. This appeal followed.2

       On appeal, Montgomery argues the PCRA court erred in denying his

third PCRA petition without conducting an evidentiary hearing. Specifically,

he asserts prior PCRA counsel was ineffective for (1) “failing to properly

apply the ‘due diligence’ timeliness exception(s) … to the filing of [his] 2nd

pro se PCRA petition[;] and (2) “failing to obtain evidence from potential

witness(es) regarding the issue(s) set forth in [his] affidavit filed with the 2 nd

pro se PCRA petition.” Montgomery’s Brief at 13. Essentially, Montgomery

complains his petition was dismissed due to the ineffectiveness of prior PCRA

counsel.


____________________________________________


2
  On July 13, 2015, the PCRA court ordered Montgomery to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Montgomery complied with the court’s directive, and filed a concise
statement on August 3, 2015.




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     Our standard of review is well-settled:

     Our standard of review of an order denying PCRA relief is
     whether the record supports the PCRA court’s determination and
     whether the PCRA court’s decision is free of legal error. The
     PCRA court’s findings will not be disturbed unless there is no
     support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted). Furthermore,

     [t]he PCRA court has discretion to dismiss a petition without a
     hearing when the court is satisfied “‘that there are no genuine
     issues concerning any material fact, the defendant is not entitled
     to post-conviction collateral relief, and no legitimate purpose
     would be served by further proceedings.’” Commonwealth v.
     Roney, 622 Pa. 1, 79 A.3d 595, 604 (2013) (quoting
     Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442
     (2011), quoting Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of
     a PCRA court’s decision to dismiss a petition without a hearing,
     an appellant must show that he raised a genuine issue of fact
     which, if resolved in his favor, would have entitled him to relief,
     or that the court otherwise abused its discretion in denying a
     hearing.” Roney, 79 A.3d at 604–05.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014), cert. denied,

135 S. Ct. 2817 (U.S. 2015).

     The PCRA mandates that any request for relief, “shall be filed within

one year of the date the judgment becomes final[.]”               42 Pa.C.S.

§9545(b)(1).

     The PCRA’s timeliness requirements are jurisdictional; therefore,
     a court may not address the merits of the issues raised if the
     petition was not timely filed. The timeliness requirements apply
     to all PCRA petitions, regardless of the nature of the individual
     claims raised therein.




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Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations

omitted).

      We agree with the PCRA court’s finding that Montgomery’s petition was

untimely filed. As explained in our prior decision, Montgomery’s judgment of

sentence became final on July 27, 2008, 30 days after this Court affirmed

his judgment of sentence on direct appeal and Montgomery failed to petition

the   Pennsylvania   Supreme     Court   for   allowance   of   appeal.       See

Montgomery, supra, 97 A.3d 797 (unpublished memorandum at 7-8); 42

Pa.C.S. § 9545(b)(3). Accordingly, Montgomery had until July 27, 2009, to

file a timely PCRA petition. The present petition, filed over five years later

on August 8, 2014, is facially untimely.       Nevertheless, pursuant Section

9545(b), an otherwise untimely petition is not time-barred if the petitioner

pleads and proves that a time-for-filing exception applies. See 42 Pa.C.S. §

9545(b).

      In the present case, Montgomery attempts to revisit the dismissal of

his second PCRA petition by asserting the ineffectiveness of prior PCRA

counsel.    In doing so, he mischaracterizes the timeliness requirements.

Montgomery asserts:

             The third PCRA petition is based upon claim(s) that prior
      PCRA counsel was ineffective in failing to properly apply the “due
      diligence” timeliness exception(s) of the PCRA statute to the
      filing of Montgomery’s 2nd pro se PCRA petition. That 3rd PCRA
      petition raising these new ineffectiveness claims against prior
      PCRA counsel was timely filed within one (1) year of the PA
      Superior Court decision affirming denial of the 2nd PCRA petition
      (without a hearing) albeit on different grounds (i.e., for failing to
      meet the “due diligence” timeliness exception(s)) on appeal.

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Montgomery’s Brief at 31-32 (emphasis in original; some capitalization and

footnote omitted).

      Contrary to Montgomery’s claim, the one-year filing requirement does

not begin to run when a prior PCRA petition is definitively decided. Rather,

it begins to run when the petitioner’s judgment of sentence becomes final,

that is, “at the conclusion of direct review, including discretionary review in

the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review.”            42

Pa.C.S. § 9545(b)(3). Accordingly, Montgomery’s untimely petition is a bar

to relief unless he can plead and prove the applicability of one of the

timeliness requirements.

      Here, Montgomery argues prior PCRA counsel provided ineffective

assistance when counsel failed to establish the newly-discovered facts

exception in his second petition.     Specifically, he contends prior counsel

failed to obtain evidence from both Montgomery’s brother and Page to

“substantiate claim(s) that the police affidavit was falsified in order to obtain

the search warrant … that was subsequently entered as evidence against

him in both trial(s).”   Montgomery’s Brief at 35 (footnote omitted).          In

support of this assertion, Montgomery attached to his amended petition an

affidavit, signed by his brother, in which his brother states the following:

      2. I have known Mr. Montgomery since before 2004-2005, and I
      am familiar with his activitie(s) during that time period.

      3. I was not called as a witness to testify at any hearing(s)
      and/or trial(s) in these case(s) held in this Court in 2006-2007.

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      4.   Mr. PAGE informed me that other than describing the
      incident(s) for which he was charged, he did not make the
      statement(s) attributed to himself and/or Mr. Montgomery in the
      SEARCH WARRANT/AFFIDAVIT of Probable Cause … that was
      entered as evidence against him in both case(s).

      5. I would be ready, willing and able to testify to these fact(s)
      during any future proceeding(s) related to these case(s).

Amended Third Petition, 4/2/2015, Affidavit of Anthony Montgomery,

3/4/2015.

      Montgomery’s claim fails for several reasons. First, his assertion that

prior counsel’s ineffectiveness resulted in the denial of his second petition

does not satisfy one of the time for filing exceptions in the Act.

      It is well settled that allegations of ineffective assistance of
      counsel will not overcome the jurisdictional timeliness
      requirements of the PCRA. See Commonwealth v. Pursell,
      561 Pa. 214, 749 A.2d 911, 915-16 (2000) (holding a
      petitioner’s claim in a second PCRA petition, that all prior counsel
      rendered ineffective assistance, did not invoke timeliness
      exception, as “government officials” did not include defense
      counsel); see also Commonwealth v. Gamboa-Taylor, 562
      Pa. 70, 753 A.2d 780, 785-86 (2000) (finding that the “fact” that
      current counsel discovered prior PCRA counsel failed to develop
      issue of trial counsel’s ineffectiveness was not after-discovered
      evidence exception to time-bar); Commonwealth v. Lark, 560
      Pa. 487, 746 A.2d 585, 589 (2000) (holding that allegation of
      ineffectiveness is not sufficient justification to overcome
      otherwise untimely PCRA claims).

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

      Second, even if we were to disregard the untimeliness of the present

petition,   we   would   find   the   attached   affidavit    does   not   establish

Montgomery’s second petition was timely filed.               Indeed, Montgomery’s

brother does not state when he spoke to Page, and first learned that Page



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never told the police that Montgomery admitted he had committed the

burglaries.    Accordingly, Montgomery has not established that his second

petition was filed within “60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

        Third, we agree with the conclusion of the PCRA court that “the alleged

falsification of Mr. Page’s statement to procure a search warrant is not newly

discovered evidence as [Montgomery] was aware of the statement upon

receiving a copy of the affidavit of probable cause attached to the search

warrant.” PCRA Court Opinion, 8/18/2015, at 7. Furthermore, we note that,

since the warrant averred Page told police Montgomery had confessed to the

crimes, Montgomery would have known, at that time, Page’s statement to

police was false.      As the PCRA court commented, “[t]hese are facts that

could have been ascertained at that time if due diligence would have been

exercised.” Id. at 8. We agree. Montgomery’s contention that “his prior

incarceration prevented him from fully engaging in communication(s) with

these two potential witness(es)”3 does not meet any definition of due

diligence. See Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.

2015) (“Due diligence demands that the petitioner take reasonable steps to

protect his own interests … [and] explain why he could not have learned the



____________________________________________


3
    Montgomery’s Brief at 32.




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new fact(s) earlier with the exercise of due diligence.”) (citations omitted),

appeal denied, 2015 WL 5748168 (Pa. September 30, 2015).

      Accordingly, because we conclude Montgomery’s third PCRA petition

was untimely filed, and Montgomery failed to plead and prove the

applicability of one of the time for filing exceptions, we affirm the order

denying PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2016




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