IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1996 SESSION
August 13, 1997
JOHN WILLIAM EVANS ) Cecil Crowson, Jr.
Appellate C ourt Clerk
) C.C.A. NO. 03C01-9601-CR-00018
Appellant )
vs. ) Knox Criminal
)
STATE OF TENNESSEE ) Honorable Mary Beth Leibowitz
)
Appellee ) Post-Conviction Relief
For Appellant: For Appellee:
John E. Eldridge Charles W. Burson
606 W. Main Ave., Suite 350 Attorney General and Reporter
P.O. Box 84
Knoxville, TN 37901-0084 Robin L. Harris
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Robert L. Jolley, Jr.
Asst. District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED_____________
AFFIRMED
WILLIAM M. DENDER, SPECIAL JUDGE
OPINION
On February 15, 1995, the appellant pled guilty to aggravated assault, and he
was sentenced to three years as a Range 1 Offender. On June 8, 1995, appellant filed
a pro se petition for post-conviction relief. Attorney John Eldridge was appointed as
counsel for appellant, and he filed an amendment, which was not verified under oath, to
the appellant's petition on September 7, 1995. A hearing was held concerning the
petition on September 11, 1995, and the trial judge took the case under advisement.
An Order and Findings of Facts and Conclusions of Law, which dismissed appellant's
petition without an evidentiary hearing and without requiring the State to respond, was
filed on September 28, 1995. This is his appeal as of right from the judgment of the
trial court.
The sole issue is whether the trial judge properly dismissed the petition for post-
conviction relief without an evidentiary hearing and without requiring the State to
respond. The judgment of the trial court is affirmed.
FACTS
The petition for post-conviction relief was filed on a form promulgated under the
law that was in effect before May 10, 1995, and it asserted two grounds for relief: (1)
the involuntariness of his guilty plea, and (2) ineffective assistance of counsel. The
facts alleged in the original petition to support the above grounds for relief are, "No one
would listen to my side of the story. No witness. Nothing was discuss what was going to
happen before the case came up. Was confused about the plea."
2
The Post-Conviction Relief Procedure Act governing this case took effect on May
10, 1995.
Appointed counsel filed an amendment to appellant's pro se petition, and the
matter came on to be heard on September 11, 1995. Due to inadvertence, the 30 day
period in which the trial court is required to act had elapsed; however, appellant has not
complained, and we do not consider such to be significant in this case. The State
pointed out that the facts alleged in the original petition as the basis for the alleged
grounds were insufficient, and that the amendment was not verified under oath. The
trial court gave the appellant an opportunity to verify the amendment under oath, in
order for the amendment to be considered; but counsel for the appellant, after
consultation with the appellant, declined to place the appellant under oath and agreed
that the court could rule upon the petition as filed. The record reveals that appellant
was under investigation for first degree murder in another case at the time of the
hearing on September 11, 1995, and that Attorney Eldridge had also been appointed to
represent appellant in that matter.
In the written Order and Findings of Facts and Conclusions of Law filed by the
trial court, the court found that appellant had not complied with the Act effective May 10,
1995, and that the petition did not state a factual basis for the alleged grounds.
ANALYSIS AND HOLDING
Acts 1995, ch. 207, § 3, provides that such act, which repealed the former
chapter and enacted the current Post-Conviction Procedure Act, shall govern all
petitions for post-conviction relief filed after May 10, 1995, and any motions filed after
that date to reopen petitions for post-conviction relief which were concluded prior to
3
May 10, 1995.
Portions of T.C.A. § 40-30-206 are as follows:
(d) The 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. A bare allegation that a constitutional right has been violated and mere
conclusions of law shall not be sufficient to warrant any further proceedings.
Failure to state a factual basis for the grounds alleged shall result in immediate
dismissal of the petition. If, however, the petition was filed pro se, the judge may
enter an order stating that the petitioner must file an amended petition that
complies with this section within fifteen (15) days or the petition will be
dismissed.
(e) If a petition amended in accordance with subsection (d) is incomplete, the
court shall determine whether the petitioner is indigent and in need of counsel.
The Court may appoint counsel and enter a preliminary order if necessary to
secure the filing of a complete petition. Counsel may file an amended petition
within thirty (30) day of appointment.
(f) Upon receipt of a petition in proper form, or upon receipt of an amended
petition, the court shall examine the allegations of fact in the petition. If the facts
alleged, taken as true, fail to show that the petitioner is entitled to relief or fail to
show that the claims for relief have not been waived or previously determined,
the petition shall be dismissed. The order of dismissal shall set forth the court's
conclusions of law.
We hold that the facts alleged to support the grounds for relief are insufficient.
Counsel had been appointed and had filed an amendment to the petition to allege
additional facts to support the grounds for relief, but the amendment was not verified
under oath. T.C.A. § 40-30-204 (e) states, "The petition and any amended petition
shall be verified under oath." The appellant was given the opportunity to verify the
amendment to the petition under oath, but he elected not to do so. The original
petition must stand on its own, and it fails to state a colorable claim for relief. In
accordance with T.C.A. § 40-30-206(f) above quoted, the trial court was correct is
dismissing the petition without an evidentiary hearing.
In order to decide this appeal it is not necessary for us to review the transcript of
4
the hearing where the appellant pled guilty to aggravated assault; however, a review
thereof leads us to the conclusion that appellant's guilty plea was freely, voluntarily, and
knowingly given. He was also advised that his conviction could be used against him in
the sentencing stage for any future criminal convictions; and this possibility was
specifically discussed in relationship to the possibility that appellant would be indicted
for first degree murder in another case which was currently under investigation.
For the reasons stated herein, the trial court is affirmed, and the case is
remanded to the trial court for all necessary proceedings not inconsistent with this
opinion.
________________________________
William M. Dender, Special Judge
CONCUR:
__________________________________
Joseph B. Jones, Presiding Judge
__________________________________
David G. Hayes, Judge
5