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[U] Commonwealth v. Montgomery

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL A. MONTGOMERY, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL ALLEN MONTGOMERY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order March 11, 2013 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000595-2006

Appeal from the PCRA Order March 11, 2013 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000655-2006

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and WECHT, JJ.

MEMORANDUM

BOWES, J.

Michael A. Montgomery appeals from the March 11, 2013 orders dismissing his second PCRA petitions filed at two different criminal actions. We affirm.

At criminal action number 595 of 2006, Appellant was charged with burglary, theft, and receiving stolen property after DNA of blood found at the scene of a crime was found to match Appellant'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 Appellant of those offenses, and Appellant was sentenced in that matter on April 23, 2007, to three to ten years incarceration.

At criminal action number 655 of 2006, Appellant 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 Appellant, 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, Appellant was sentenced on July 14, 2007, to four and one-half to ten years imprisonment, and that sentence was imposed consecutively to the previous one.

Appellant 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 Commonwealth v. Montgomery, 959 A.2d 465 (Pa.Super. 2008) (unpublished memorandum). I n that adjudication, we rejected a challenge to a search warrant used to obtain Appellant's blood. The search warrant was obtained after Arthur Page, who was Appellant's accomplice in unrelated burglaries, informed police that Appellant admitted to com mission of the burglaries at issue herein. After we affirmed, Appellant did not seek further review in the Supreme Court.

Appellant thereafter filed a timely PCRA petition as to both criminal action numbers. Counsel was appointed. Appellant'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, Appellant 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 Appellant'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 Appellant understood and agreed to the terms of the agreement outlined in his presence. Appellant 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.

On February 28, 2012, Appellant filed a second PCRA petition at both actions at issue herein. In those documents, Appellant averred that he recently discovered that State Trooper Eric Weller, who obtained the warrant to obtain samples of Appellant's blood, had filed a false affidavit of probable cause to obtain that warrant. Specifically, Appellant alleged that he just learned that Page denied telling Trooper Weller that Appellant admitted to Page that Appellant 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 Appellant had agreed not to seek any further PCRA review in these actions in exchange for a reduced sentence.

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 Appellant contested. He maintained that the issue raised in his second petitions was distinct from those raised in the first PCRA petitions. Appellant 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 Appellant in connection with litigation of them . These appeals, which were consolidated for disposition, followed the denial of relief. Appellant presents the following issues for our review:

1. Whether the lower court erred in ruling that via an agreement with the Commonwealth, an Appellant may waive the right to pursue any future ...

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