Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 23, 2014.
Appeal from the Circuit Court for Trousdale County No. 1171E150 David Earl Durham, Judge.
Tillman W. Payne, Carthage, Tennessee, for the appellant, Justin Michael Nunnery.
Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Tom P. Thompson, District Attorney General; and Javin Cripps, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the Court, in which Alan E. Glenn and Roger A. Page, JJ., joined.
THOMAS T. WOODALL, JUDGE.
Petitioner was indicted by the Trousdale County Grand Jury for two counts of rape of a child. On June 18, 2012, he pleaded guilty to two counts of aggravated sexual battery of a child less than thirteen years of age and was sentenced to consecutive ten-year sentences to be served at one-hundred percent.
The record reflects that on June 18, 2013, Petitioner filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel prior to and during the plea submission hearing and that his plea was involuntarily entered due to coercion and a lack of understanding of the nature and consequences of the plea. Petitioner also filed an untitled document with the petition that included case law and outlined how he would prove his claims. More specifically, Petitioner claimed that trial counsel failed to explain the terms of the plea agreement to him, that trial counsel failed to explain his sentences would run consecutively, that his confession was coerced, and that his counsel never attempted to suppress the statement. He further alleged that trial counsel did not provide him with copies of the State's evidence in the case.
The trial court entered a preliminary order on July 24, 2013, summarily dismissing the petition for failure to assert a colorable claim. In the order, the trial court made the following findings:
As grounds for relief, Petitioner asserts that his plea was involuntarily entered via coercion and without understanding the nature and consequences of the plea. (Petition, page 6, paragraph 12). This assertion is without merit. The transcript of the plea is attached as Exhibit A. Page 12, lines 6 through 8 of the transcript, specifically address coercion. The Petitioner responded under oath. The remainder of the plea specifically addresses the Petitioner's understanding, and the nature and consequences of the plea. Again, he responded under oath.
Petitioner next asserts the conviction was based on use of a coerced confession. Exhibit A, page 8, lines 11-19 specifically reminds Petitioner of the suppression hearing that was held on May 23, 2012, regarding the confession. And the conclusion of that hearing, this Court ruled the confession was lawfully obtained. The Petitioner has waived the appeal of this issue. This issue is without merit.
According to the Rules of the Tennessee Supreme Court a post-conviction court's first obligation upon receipt of a petition is to review it and determine whether it states a colorable claim and, if so, to issue a preliminary order that, among other things, appoints counsel for indigent petitioners and sets a deadline for the filing of an amended petition. See Tenn. Sup. Ct. R. 28, § 6(B)(2)-(3). Accordingly, whether it is appropriate for a court to summarily dismiss a petition for post-conviction relief without allowing a petitioner the opportunity to amend or appointing counsel depends on whether the petition states a colorable claim. See Id.; see also Arnold v. State, 143 S.W.3d 784, 786-87 (Tenn. 2004).
Whether a petition states a colorable claim depends on the facts alleged. See Arnold, 143 S.W.3d at 786; Burnett v. State, 92 S.W.3d 403, 406-07 (Tenn. 2002). "A colorable claim is one 'that, if taken as true, in the light most favorable to the petitioner, would entitle the petitioner to relief under the Post-Conviction Procedure Act.'" Arnold, 143 S.W.3d at 786 (quoting Tenn. Sup. Ct. R. 28, § 2(H)). As such, "if the facts alleged, taken as true, fail to show that the petitioner is entitled to relief, or in other words, fail to state a colorable claim, the petition shall be dismissed." Burnett, 92 S.W.3d at 406 (citing Tenn. Code Ann. § 40-30-206(f) (1997)). In addition, in determining whether a colorable claim has been presented, "pro se petitions are to be 'held to less ...