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01/13/94 HUGH RONALD CARMLEY v. STATE TENNESSEE

January 13, 1994

HUGH RONALD CARMLEY, APPELLANT,
v.
STATE OF TENNESSEE, APPELLEE



MONROE COUNTY. Hon. R. Steven Bebb, Judge. (Post-Conviction)

Wade, Dwyer, Scott

The opinion of the court was delivered by: Wade

Gary R. Wade, Judge

The petitioner, Hugh Ronald Carmley, appeals the trial court's dismissal of his petition for post-conviction relief. There was no evidentiary hearing. No counsel was appointed. The issue presented for review is whether the trial court properly determined that the petition failed to state a colorable claim for relief. We find there was error. We therefore reverse the judgment and remand to the trial court for an evidentiary hearing.

The petitioner was convicted of aggravated rape and sentenced to a term of life imprisonment. The conviction was affirmed by our court on November 30, 1989. State v. Nola Mae Carmley and Hugh Ronald Carmley, No. 118 (Tenn. Crim. App., Knoxville, November 30, 1989). Application for permission to appeal to the Supreme Court was denied March 5, 1990.

On November 10, 1992, the petitioner filed a claim for post-conviction relief alleging "ineffective assistance of counsel at trial and on direct appeal." *fn1 More specifically, the petitioner alleged as follows:

[Trial counsel] never advised me in my best interest to plead guilty to the 20 years offered to me. . . . That my attorney. . . let me make this decision on my own with out [sic] his assistance at the critical moment. That he told me they offered me 20 years to plead guilty or get life if I went to trial but never gave me his best legal "Openion" [sic].

The petitioner also alleged that his punishment was cruel and unusual and that he was "deprived due process and equal protection of the law." While the petitioner asserted no specifics as to either of the additional constitutional claims, he did seek the appointment of counsel. As relief, he asked that the conviction be set aside so that he would be in a position to accept the plea bargain of 20 years offered prior to his trial. The trial court sustained the state's motion to dismiss based upon the absence of any "colorable claim."

The Post-Conviction Procedure Act provides that "no petition for relief shall be dismissed for failure to follow the prescribed form or procedure until after the Judge has given the petitioner reasonable opportunity, with the aid of counsel, to file an amended petition." Tenn. Code Ann. § 40-30-107. The Act requires that the "petition [be] competently drafted" before the court may order a dismissal. Tenn. Code Ann. § 40-30-109(a)(1).

Pro se petitioners must not be held to the pleading standards required of attorneys. The Act obligates trial courts to "look to the substance rather than the form of the petition." Tenn. Code Ann. § 40-30-115(b). By the terms of Tenn. Code Ann. § 40-30-115(a), the trial court "may freely allow amendments and shall require amendments needed to achieve substantial Justice and a full and fair hearing of all available grounds for relief."

In Swanson v. State, 749 S.W.2d 731 (Tenn. 1988), our supreme court adopted a policy against the dismissal of petitions for post-conviction relief on technical grounds:

This Court has previously held that a pro se petition under the Act is "held to less stringent standards than formal pleadings drafted by lawyers, and the test is whether it appears beyond doubt that the [petitioner] can prove no set of facts in support of his claim which would entitle him to relief." Furthermore, when a colorable claim is presented in a pro se petition, dismissal without appointment of counsel to draft a competent petition is rarely proper.

Id. at 734 (citation omitted).

Here, of course, the question presented is whether the sparsity of the supporting factual allegations place the petition in that rare category where summary dismissal is appropriate. The summary termination of these proceedings precluded the appointment of counsel, the opportunity to amend, and any ...


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