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
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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.”
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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.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
JOHN K. BYERS, SENIOR JUDGE
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