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Bunch v. State

Court of Criminal Appeals of Tennessee, Nashville

March 2, 2018

TERRY LEA BUNCH
v.
STATE OF TENNESSEE

          Assigned on Briefs Date: December 13, 2017

         Appeal from the Circuit Court for Montgomery County No. CC17-CR-145 Jill Bartee Ayers, Judge

         Petitioner, Terry Lea Bunch, appeals the dismissal of his petition for post-conviction relief from his guilty pleaded conviction for third offense driving under the influence ("DUI"). The pro se petition alleged a defect in the charging instrument and was summarily dismissed by the post-conviction court for failure to state a colorable claim. Petitioner argues on appeal that the post-conviction court should have allowed him the opportunity to amend his petition to include an allegation of ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          James R. Potter (on appeal), Clarksville, Tennessee, for the appellant, Terry Lea Bunch; Terry Lea Bunch, Clarksville, Tennessee, Pro Se (in post-conviction court).

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; John W. Carney, District Attorney General; and Art Beiber, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         On September 24, 2016, an arrest warrant was issued charging Petitioner with one count of third offense DUI, one count of violation of the ignition interlock statute, one count of failure to exercise due care, and one count of violation of the open container statute. The facts of the case, according to the affidavit of complaint compiled by the arresting officer, are as follows:

Terry Lea Bunch was operating a motor vehicle on Interstate 24. He struck a commercial motor vehicle and came to rest in the median. During my initial interview with Mr. Bunch[, ] I detected an odor of an alcoholic beverage emitting from his breath. His eyes were blood shot and watery. I looked in the driver[']s side window and detected the strong odor of an alcoholic beverage emitting from the interior of the vehicle. The truck was open and in the truck I saw a 12 oz can of Natural light beer. Mr. Bunch performed poorly on three [standard field sobriety tests] and was arrested, transported and booked into Montgomery County Jail. Mr. Bunch had an Ignition Interlock Device attached to his vehicle that he had bypassed. He would not tell me how he bypassed the Interlock Device.

         The affidavit of complaint also contains the following handwritten notation: "2x Prior DUI conv dates 7/12/2013, 6/1/2015." On October 3, 2016, Petitioner pled guilty in General Sessions Court to one count of third offense DUI, and the other charges were dismissed. Petitioner was sentenced to eleven months and twenty-nine days to serve, fined $1100, and had his driver's license suspended for six years. Petitioner did not file a direct appeal in this Court.[1]

         On January 19, 2017, Petitioner filed in the Circuit Court[2] a pro se "Petition for Relief from Conviction or Sentence." Petitioner alleged that his conviction violated due process because the charging instrument did not contain the statutorily required information to support an enhanced DUI charge. Specifically, Petitioner complained that the affidavit of complaint did not set forth both the time and place of his prior DUI convictions in accordance with Tennessee Code Annotated section 55-10-411(b)(2). On February 6, 2017, the State filed a response, arguing that Petitioner's guilty plea waived all defects in the underlying charging instrument. On March 7, 2017, the post-conviction court filed an order dismissing the petition for failure to state a colorable claim. Petitioner filed a timely notice of appeal and was appointed appellate counsel.

         On appeal, Petitioner argues that the post-conviction court erred in summarily dismissing his petition without appointing counsel or giving Petitioner the opportunity to amend his petition. According to Petitioner's appellate brief, his pro se petition "incorrectly framed the issue for post[-]conviction relief" and, had he been afforded the opportunity to amend his petition, he would have alleged that he "was denied effective assistance of counsel upon entry of a guilty plea to a facially invalid charging instrument."[3] The State responds that the post-conviction court properly dismissed the petition for failing to state a colorable claim for relief.

         Under the Post-Conviction Procedure Act, 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. Upon the initial filing of a petition for post-conviction relief, the post-conviction court must conduct a preliminary review to determine whether the petition states a colorable claim for relief. Tenn. Sup. Ct. R. 28 § 6(B)(2); see also T.C.A. § 40-30-106(a). A colorable claim for relief is a claim "that, if taken as true, in the light most favorable to the petitioner, would entitle petitioner to relief under the Post-Conviction Procedure Act." Tenn. Sup. Ct. R. 28 § 2(H). "In the event the court concludes after the preliminary review that a colorable claim is not asserted by the petition, the court shall enter an order dismissing the petition or an order requiring that the petition be amended." Tenn. Sup. Ct. R. 28 § 6(B)(4)(a) (emphasis added); see T.C.A. ยง 40-30-106(f) ("If the facts alleged, taken as true, fail to show that the petitioner is entitled to relief . . ., the petition shall be dismissed."). In other words, the post-conviction court ...


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