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January 13, 1994


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 forum by which the petitioner might present proof in support of his claims.

The petitioner makes general allegations of ineffectiveness of counsel, both at trial and on appeal. The only specific facts asserted were that counsel was ineffective for having inadequately advised the petitioner on the merits of a plea bargain offer versus trial. *fn2 While those allegations may be entirely meritless, the guidelines established in Swanson envision the appointment of counsel, amendments, and the opportunity to prove colorable claims.

This is a marginal claim. In Lowe v. State, 805 S.W.2d 368 (Tenn. 1991), for example, our court declined to remand a post-conviction claim for the appointment of counsel and hearing because the petitioner had in his pro se pleading failed to assert that an allegedly unconstitutional jury instruction "had any effect whatsoever on the outcome of his case." Id. at 372. In order to make a claim "colorable," the court in Lowe required that the pro se petitioner assert a "basic theory of relief." Id. Yet, in this instance, proof of exigent circumstances might produce a favorable result. We think the petitioner met this threshold obligation by alleging that he would not have rejected a plea bargain and gone to trial absent ineffective assistance of counsel. Moreover, he generally asserted ineffective assistance on appeal. If these broad allegations, after any appropriate amendments by his counsel, could be supported by legitimate proof, there may be grounds for relief.

This summary dismissal may have been affirmed by our court in prior years. There is a discernible trend, however, towards affording pro se petitioner's counsel, providing opportunities to amend, and allowing evidentiary hearings. The statutory procedure is explicit. Tenn. Code Ann. § 40-30-101, et seq. There is now a relatively new three-year period of limitations applicable to post-conviction claims. Tenn. Code Ann. § 40-30-102. The goal of the act and its amendments is to give the post-conviction relief applicant every opportunity to present all potential claims in a single proceeding and provide the petitioner with every procedural opportunity to assert his full panoply of constitutional claims; its effect reduces the relative significance of other procedural defenses available to the state. Succinctly stated, the goal of the act and its amendments is to give secure Disposition on the merits for all possible grounds. This statutory procedure is designed "to achieve substantial Justice and a full and fair hearing of all available grounds for relief." Tenn. Code Ann. § 40-30-115(a).

Recently, our court ruled as follows:

There is fine line between those petitions which can be dismissed based upon conclusory claims and those with marginally sufficient factual allegations [which entitle] the petitioner to an evidentiary hearing. Latitude must be afforded the pro se petitioner. They cannot be held to the same standard as counsel. In scrutinizing constitutional claims, the discretionary authority of the trial court should generally favor providing both appointed counsel and an evidentiary hearing to the pro se petitioner.

David Siboloski v. State, Order on Petition to Rehear, No. 03C01-9210-CR-00369 (Tenn. Crim. App., Knoxville, June 3, 1993).

Finally, in State v. Smith, 814 S.W.2d 45 (Tenn. 1991), our supreme court interpreted the Post-Conviction Procedure Act, Tenn. Code Ann. § 40-30-107 (quoted (supra) ), to direct the appointment of counsel upon the presentation of a colorable claim. A colorable claim is one that alleges facts showing that the conviction resulted from an abridgment of a constitutional right and which demonstrates that the ground for relief was not previously determined or waived. See State v. Smith, 814 S.W.2d at 49.

When there can be no conclusive determination from a pro se petition, the petitioner must be given the aid of counsel. Swanson, 749 S.W.2d 731. It is only when there is a competently drafted petition that conclusively shows the petitioner is entitled to no relief that a dismissal without the appointment of counsel and without an evidentiary hearing is allowed. Id. ; Givens v. State, 702 S.W.2d 578, 580 (Tenn. Crim. App. 1985).

From all of the foregoing and despite the meager factual allegations in the petition, we are constrained to reverse the judgment of the trial court. The cause is remanded for the appointment of counsel and the amendment of the petition, if desired. The petitioner shall be afforded an opportunity to present proof in support of his allegations of constitutional deprivation.

Gary R. Wade, Judge



Robert K. Dwyer, Judge

Jerry Scott, Presiding Judge


I must respectfully disagree with my esteemed colleagues, departing from the majority on the question of whether or not the instant petition established a colorable claim for post-conviction relief.

A court must determine, if the petition is pro se, whether it appears beyond a doubt that a petitioner can prove no set of facts in support of his claim which would entitle him to relief. Swanson v. State, 749 S.W.2d 731 (Tenn. 1988). Where a petition does not raise an issue calling for an evidentiary hearing, the trial court has no obligation to appoint counsel. Cole v. State, 798 S.W.2d 261, 263 (Tenn. Crim. App. 1990); May v. State, 589 S.W.2d 933 (Tenn. Crim. App. 1979).

In the best light to the pro se petitioner, assuming arguendo that his claim is supportable by the proof, nothing in his petition suggests a violation of Article I, Section 9 of the Tennessee Constitution or the Sixth Amendment of the U.S. Constitution. My perspective would be no different had the petitioner had the assistance of the most articulate attorney at the bar to assist in the drafting of the instant petition.

In the case sub judice, petitioner is not alleging that his attorney did not communicate the 20-year plea offer to him, but rather, that his attorney failed to give him a legal opinion on whether he should or should not take the plea. The petitioner also does not allege that his counsel did not offer him any advice on the advantages and disadvantages of the plea offer. The petitioner merely alleges that his attorney did not tell him whether or not to plead guilty.

The record suggests that trial counsel fully advised petitioner of his options. Counsel's refusal to tell petitioner what he should do, however, is hardly a constitutional abridgement. In such quarters, I find no colorable claim has been presented in the instant petition.


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