Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 11, 2015
Appeal from the Circuit Court for Marshall County No. 2013CR129PC Forest A. Durard, Jr., Judge
John Edward Lynch, Henning, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Robert James Carter, District Attorney General; and Weakly E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Robert L. Holloway, Jr., and Timothy L. Easter, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
Petitioner, John Edward Lynch, timely filed, on November 5, 2013, a petition for post-conviction relief (the Petition) attacking his conviction in the Marshall County Circuit Court for the Class E felony offense of failure to appear, T.C.A. §. 39-16-609. Petitioner was convicted following a jury trial of the Habitual Motor Offenders Act, eleventh offense DUI, violation of the implied consent law, and felony failure to appear. The trial court ordered all sentences, except the sentence for violation of the implied consent law, to run consecutively with each other for an effective eleven-year sentence in the Department of Correction. The conviction was affirmed on appeal. State v. John Edward Lynch, No. M2010-02481-CCA-R3-CD, 2012 WL 3679575 (Tenn. Crim. App., Aug. 24, 2012), perm. app. denied (Tenn., Feb. 13, 2013).
The State filed a response to the Petition on November 25, 2013. In its response, the State noted that the Petitioner had sworn or affirmed the information in the petition was true and correct before a Florida notary. The Petition filed on November 5, 2013, states the Petitioner's address was "P.O. Box1150 Henning, TN 38041, " and that he was confined at "West Tennessee State Penitentiary." On October 23, 2013, the Petitioner swore or affirmed before a Florida notary "under penalty of perjury that the foregoing (information in the petition) is true and correct." Thereafter, the State filed a "memo" with the post-conviction court stating the copy of their response mailed to the Petitioner had been returned on December 1, 2013, stamped "return to sender."
On March 5, 2013, the post-conviction court issued an order to the Tennessee Department of Correction (TDOC) to transport the Petitioner for a hearing to be held March 26, 2014. On March 6, 2014, TDOC sent a document titled "Arrival/Departure Select" showing that the Petitioner was moved from "WTSP" to "Fed"on March 25, 2013, with the reason for the move noted as "out to court." On March 26, 2014, the post-conviction court entered an order dismissing the petition without prejudice because Petitioner had been transferred from the Tennessee Department of Correction to federal custody. The certificate of service of this order, signed by the post-conviction court judge, stated that Petitioner was served "by holding a copy of this order for Petitioner in the Court file until such time as he may be located." By order entered "sua sponte" on September 2, 2014, the post-conviction court dismissed the post-conviction petition on the merits finding that the Petitioner was not entitled to relief because, among other things, the Petitioner raised the same issues in his direct appeal and "there is no showing there would be a reasonable probability of a different verdict based upon these allegations."
We note that the order appealed from states that "[Petitioner] has filed again [presumably after the March 26, 2014 dismissal "without prejudice"] what appears to be a petition for post-conviction relief." However, the only petition in the appellate record is the one filed pro se on November 5, 2013, which was the subject of the March 26, 2014 order of dismissal "without prejudice" by the post-conviction court. This is also the same order that the post-conviction court served on Petitioner by placing it into the court file "until such time as [Petitioner] may be located." The order appealed from in this case does not state on what date the purported new petition was filed, and does not reflect that the subsequent petition contains different allegations. In fact, the order's wording that Petitioner "has filed again" a petition for post-conviction relief leads us to the conclusion, without any contrary information in the record, that Petitioner filed the same pro se petition he had timely filed in November 2013. Therefore, we will examine the contents of this petition.
We have reviewed this court's opinion in Petitioner's direct appeal. Petitioner did not raise the issue of ineffective assistance of trial counsel in that appeal.
An appellate court's review of a summary denial of a petition for post-conviction relief is de novo. Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004) (citing Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002)). Post-conviction relief is available for any conviction or sentence that is "void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." T.C.A. § 40-30-103. The first thing that a post-conviction court must do upon receiving a petition is to conduct a preliminary review to "determine whether the petition states a colorable claim." Tenn. Sup. Ct. R. 28, § 6(B)(2). A colorable claim is one "that, if taken as true, in the light most favorable to the petitioner, would entitle petitioner to relief . . . ." Id. § 2. If a petition fails to state a colorable claim, the post-conviction court must dismiss the petition. Id. §§ 5(F)(5), 6(B)(4)(a); see also T.C.A. § 40-30-106(d) (where the factual allegations within a petition, "taken as true, fail to show that the petitioner is entitled to relief . . ., the petition shall be dismissed").
However, if a petition is filed pro se, then the post-conviction court may grant the petitioner an opportunity to amend the petition to properly allege a colorable claim. T.C.A. § 40-30-106(d). If the pro se petition remains incomplete after a chance to amend, the post-conviction court may then appoint counsel for an indigent petitioner. T.C.A. § 40-30-106(e). Although the decision to afford an opportunity to amend or to appoint counsel to help complete the petition is within the discretion of the post-conviction court, a post-conviction court does not have the authority to dismiss a pro se petition "for failure to follow the prescribed form until the court has given [the] petitioner a reasonable opportunity to amend the petition with the assistance of counsel." Tenn. Sup. Ct. R. 28, § 6(B)(4)(b). Furthermore, if the post-conviction court ...