State v. Chad Poole

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON AUGUST SESSION, 1998 FILED September 14, 1998 CHAD DOUGLAS POOLE, ) C.C.A. NO. 02C01-9803-CC-00097 ) Cecil Crowson, Jr. Appellate C ourt Clerk Appe llant, ) ) ) HARDEMAN COUNTY VS. ) ) HON. JON KERRY BLACKWOOD STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction) ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF HARDEMAN COUNTY FOR THE APPELLANT: FOR THE APPELLEE: CHAD DOU GLAS POOLE JOHN KNOX WALKUP Pro Se Attorney General and Reporter P.O. Box 1000 Henning, TN 38041-1000 DOUGLAS D. HIMES Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243 ELIZABETH RICE District Attorney General JERRY NORWOOD Assistant District Attorney 302 Market Street Somerville, TN 38068 OPINION FILED ________________________ REVERSED AND REMANDED DAVID H. WELLES, JUDGE OPINION The Defendant appeals as of right from the trial court’s summary dismissal of his pro se petition for post-conviction re lief. The trial judge dismissed the petition without appointing counsel an d without cond ucting an evide ntiary hearing. We believe the Defe ndant w as entitled to an evide ntiary hea ring to give him the opportun ity to prove his a llegations that he did not knowingly and volunta rily enter his guilty plea and that he did not understand his right against self-incrimination. We therefore reverse the judgment of the trial court and remand this case for further proceedings. The Defendant was convicted, upon his pleas of guilty, of Class E felony theft, two co unts o f burgla ry, esp ecially a ggrav ated b urglar y, and e spec ially aggravated robbery. The Defendant appealed from the effective twenty-one year sentence imposed by the trial c ourt, and this Cou rt modified the sente nce to nineteen years. State v. Cha d Dou glas P oole, C.C.A. No. 02C01-9506-CC- 00178, Hardeman County (Tenn. Crim. App., Jackson, Jan. 31, 1996). Our decision was affirmed b y the Te nness ee Sup reme C ourt. State v. Poo le, 945 S.W .2d 93 (Ten n. 1997). On February 6, 1998, the Defendant filed a petition for post-conviction relief. The pro se petition alleged gen erally that his pleas we re not knowingly and volunta rily entered and that he did not un derstand, nor did the judge prope rly explain to him, his right against self-incrim ination . He als o alleg ed tha t his sentence was illegal. On February 25, 1998, the trial judge entered an order -2- dismissing the petition for failure to assert a colorable claim because the transcript from the guilty plea proceeding indicated that the Defendant was advised of his right against self-incrimination. The court further concluded that the twenty-one year sentence as modified to nineteen years was not an illegal sentence. The court also concluded that the petition did not state a claim for which re lief “need b e grante d.” W e must respe ctfully disag ree with the co nclus ion of th e trial co urt that th is petition does not state a colorable claim for post-conviction relief. Although not artfully drawn, the petition alleges that the guilty pleas were entered without the Defendant’s consent and without an understanding of the “plea nature and consequ ences”; that the Defendant did not have knowledge of his “right against self incrimination”; that the Defendant was not “fully and adequately informed of his right not to b e com pelled to in criminate himself”; and that if the Defendant had known of his right against self-incrimination, he would no t have pleaded guilty but would have proceeded to trial. Although the petition does no t allege ineffective assistance of counsel, it clearly alleges that his guilty plea was not knowingly and voluntarily entered. The transcript of the Defe ndant’s g uilty plea proceeding is included in the record. The only exc hange between the trial judge and the Defendant concerning the Defendant’s right not to be compelled to incriminate himself is as follows: ?[The Co urt]: And that you cou ld not be co mpelle d to incrim inate yourself, un less you c hoose to do so? Both of yo u unde rstand th at? [Both D efenda nts]: Yes, sir.” -3- The Post-Conviction Pro cedure Act provid es that if ?the fac ts alleg ed [in the petition], taken as true, fail to show that the pe titioner is entitled to relief o r fail to show that the claims for relief have n ot bee n waive d or pre viously determined, the petition shall be dismiss ed.” Tenn. Code Ann. § 40-30-206(f). The Act also provides that a ?bare allegation that a constitutional right has been violated and mere conc lusions of law shall not be sufficient to warrant any further proceedings .” Id. § 40-30 -206(d). In addition, ?[f]ailure to state a factual basis for the grounds alleged shall result in immediate dismissal of the petition,” except that if the petition was filed pro se, the judge may enter an order stating that the petitioner must amend the petition within fifteen days or the petition will be dismiss ed. Id. W e believe the Defendant should have been given an evidentiary hearing so that he would h ave the opp ortunity to try to prove his allegation that his guilty plea was n ot volun tarily, un dersta nding ly, and k nowin gly ente red. W e read ily acknowledge that the Defendant may have a difficult time proving his allegations by clear and co nvincin g evide nce, a s the A ct requ ires him to do. H owev er, his post-conviction relief petition was filed in a timely fashion without the assistance of counsel and the Act contemplates the filing of only one petition. Based on the allegations of his petition, we believe the Post-Conviction Procedure Act gives him the opportunity to be heard. The judgm ent of th e trial co urt dismiss ing the p ost-co nviction petition is reversed and this case is remanded for further proceedings. -4- ____________________________________ DAVID H. WELLES, JUDGE CONCUR: ___________________________________ JERRY L. SMITH, JUDGE ___________________________________ JOHN K. BYERS, SENIOR JUDGE -5-