                                                                                          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.



                                            5
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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