Opinion
No. M2009-01193-CCA-R3-PC.
Assigned on Briefs December 15, 2009.
Filed May 28, 2010.
Direct Appeal from the Criminal Court for Davidson County; No. 2007-A-708; Seth Norman, Judge.
Judgment of the Criminal Court is Reversed; Case Remanded.
Robin Betts, Nashville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Joseph M. Tipton, P.J., and James Curwood Witt, Jr., J., joined.
OPINION
The Petitioner, Robin Betts, filed a petition for post-conviction relief in the Davidson County Criminal Court alleging that his counsel was ineffective and that his pleas were not knowingly and voluntarily entered. The post-conviction court dismissed the petition without appointing counsel or conducting an evidentiary hearing, finding that the Petitioner did not "present[] a cognizable claim which would entitle him to post-conviction relief." On appeal, the Petitioner challenges the summary dismissal of the petition. The State concedes that the post-conviction court erred in summarily dismissing the petition. Upon review, we reverse the judgment of the trial court and remand for the appointment of counsel and an evidentiary hearing.
I. Factual Background
The Davidson County Grand Jury indicted the Petitioner on two counts of first degree premeditated murder, two counts of first degree felony murder, two counts of attempted especially aggravated robbery, one count of attempted first degree murder, and one count of aggravated assault. Thereafter, on July 14, 2008, the Petitioner entered a "best interest" guilty plea to two counts of facilitation of first degree premeditated murder and one count of facilitation of attempted first degree murder in exchange for the dismissal of the remaining charges. The plea agreement further provided that the Petitioner would be sentenced as a standard, Range I offender to twenty-five years for each facilitation of first degree premeditated murder conviction and to ten years for the facilitation of attempted first degree murder conviction, with the sentences to be served consecutively for a total effective sentence of sixty years.
On March 25, 2009, the Petitioner filed a pro se petition for post-conviction relief, alleging that his counsel was ineffective and that his pleas were not knowingly and voluntarily entered. He alleged that counsel gave him "inaccurate advice" regarding sentencing. He maintained that counsel told him he was facing either a life sentence or a death sentence for the offenses to which he pled guilty. The Petitioner contended that he faced at most a sentence of twenty-five years for facilitation of first degree murder. In sum, the Petitioner's argument was that if he had been correctly informed about the sentences for the charged offenses and the offenses to which he pled guilty, he would not have entered the guilty pleas.
On March 30, 2009, the post-conviction court summarily dismissed the petition, finding:
Counsel in this matter apparently negotiated the plea agreement with the state and was able to garner much more favorable convictions and sentences. The petitioner mistakenly asserts that he was not facing the possibility of life or death sentencing. His indictment on two counts of first degree murder and two counts of felony murder carry sentences of life, life without the possibility of parole and death. T.C.A. [§ ] 39-13-202(c). As a result, it does not appear as though the petitioner has presented a cognizable claim which would entitle him to post-conviction relief.
II. Analysis
On appeal, the Petitioner challenges the post-conviction court's summary dismissal of his post-conviction petition. The State agrees that the post-conviction court erred in dismissing the petition without appointing counsel or conducting an evidentiary hearing.
The Post-Conviction Procedure Act of 1995 provides that a post-conviction petition "must contain a clear and specific statement of all grounds upon which relief is sought, including full disclosure of the factual basis of those grounds." Tenn. Code Ann. § 40-30-106(d) (2006). A bare allegation that a constitutional right has been violated and mere conclusions of law will not be sufficient to warrant further proceedings.Id. Moreover, failure to state a factual basis for the grounds alleged will result in immediate dismissal of the petition.Id. We will review the post-conviction court's determinations de novo. See Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002).
In Burnett, our supreme court explained the process which a post-conviction court should use to determine whether a post-conviction petition should be dismissed without a hearing.Id. First, the post-conviction court should consider the petition to determine whether it asserts a colorable claim.Id. A colorable claim is "`a claim that, if taken as true, in the light most favorable to the petitioner, would entitle petitioner to relief under the Post-Conviction Procedure Act.'" Id. (emphasis added) (quoting Tenn. Sup. Ct. R. 28 § 2(H)). If the facts alleged, taken as true, do not state a colorable claim, the petition should be dismissed.See Tenn. Code Ann. § 40-30-106(f); see also Waite v. State, 948 S.W.2d 283, 284 (Tenn. Crim. App. 1997).
In denying the petition, the post-conviction court found that the Petitioner's claims would not be successful at a post-conviction hearing. However, in order to survive summary dismissal, a petitioner is not required to prove any claim in his petition; instead, a petitioner need only allege a colorable claim.See Shazel v. State, 966 S.W.2d 414, 415-16 (Tenn. 1998) ("There obviously is an important distinction between the right to seek relief in a post-conviction proceeding and the right to have relief in a post-conviction proceeding."). We note that the ultimate success or failure of a petitioner's claims is not a proper basis for dismissing a post-conviction petition without conducting an evidentiary hearing. Id.; see also Tenn. Code Ann. § 40-30-106(b)-(d). The Petitioner alleged that his counsel was ineffective because he gave erroneous advice regarding sentencing as it related to the guilty pleas. Typically, ineffective assistance is a colorable ground for post-conviction relief. Moreover, the Petitioner offered factual support for his complaints of ineffective assistance. Accordingly, without making any determinations on the merits of the Petitioner's complaints, we conclude that the post-conviction court should have allowed the Petitioner to fully present his claims. See Waite, 948 S.W.2d at 285; Amin Shabazz v. State, No. M2002-01302-CCA-R3-PC, 2003 WL 354511, at *2 (Tenn. Crim. App. at Nashville, Feb. 14, 2003).
III. Conclusion
Based upon the foregoing, we reverse the judgment of the trial court and remand the case for the appointment of counsel and an evidentiary hearing.