         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 14, 2003 Session

           HUGH PETER BONDURANT v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Giles County
                            No. 10374    Stella Hargrove, Judge



                     No. M2002-00863-CCA-R3-PC - Filed April 16, 2003


The Appellant was convicted in 1991 of second degree murder, and his conviction was affirmed on
direct appeal. He subsequently filed a “PETITION FOR RELIEF FROM CONVICTION OR
SENTENCE PURSUANT TO TENNESSEE CODE ANNOTATED 40-30-301 THROUGH 40-30-
312,” and the trial court summarily dismissed the petition relying upon the Post-Conviction
Procedure Act. The Appellant now appeals the summary dismissal of his opinion. Our review of
the complete petition filed by the Appellant reveals that, despite the statutory sections
inappropriately cited in its title, the Appellant sought relief under the Post-Conviction DNA Analysis
Act. We therefore reverse the judgment of the trial court and remand to the trial court for findings
of fact pursuant to the Post-Conviction DNA Analysis Act.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
                                      and Remanded

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS T. WOODA LL, JJ., joined.

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, Hugh Peter Bondurant.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       In 1991, a Giles County jury found the Appellant, Hugh Peter Bondurant, and his brother
guilty of second degree murder, and the trial court sentenced them to twenty-five years’
incarceration. See State v. Kenneth Patterson (Pat) Bondurant, No. 01C01-9501-CC-00023, 1996
Tenn. Crim. App. LEXIS 322, at *1 (Tenn. Crim. App., Nashville, May 24, 1996). This Court
affirmed the Appellant’s conviction on appeal, see id. at *44, and the Tennessee Supreme Court
denied permission to appeal.
        On February 28, 2002, the Appellant filed a pro se “PETITION FOR RELIEF FROM
CONVICTION OR SENTENCE PURSUANT TO TENNESSEE CODE ANNOTATED 40-30-301
THROUGH 40-30-312.” On March 21, 2002, the trial court summarily dismissed the petition
without an evidentiary hearing. In its written order dismissing the petition, the trial court stated, in
pertinent part: (1) that it treated the petition as a petition for post-conviction relief; (2) that the
Appellant’s first petition for post-conviction relief had been dismissed for failure to timely file and
that the petition in this case was dismissed as a second filing; (3) that the petition contained no
grounds upon which to grant relief; and (4) that the Appellant was not entitled to relief. The
Appellant appeals the dismissal of his petition, arguing that the trial court erred by summarily
dismissing the petition without adequately considering the issues contained therein, by failing to
appoint counsel to aid the Appellant in this matter, and by failing to allow the Appellant to be
“present in court on the day specified for initial review.” We reverse the judgment of the trial court
and remand this case to the trial court for further proceedings consistent with this opinion.

        The Appellant argues that the trial court erred by summarily dismissing his petition without
adequately considering the issues raised therein and without appointing counsel. He states that
although the title of the petition refers to Tennessee Code Annotated § 40-30-301 to -312, it is clear
from the body of his petition that he was seeking relief under the Post-Conviction DNA Analysis Act
of 2001, codified at Tennessee Code Annotated § 40-30-401 to -412. In support of his position, he
points out that the petition quotes language from § 40-30-403 of the Act. He also points out the
following language from the petition: “This petitioner did not have a statutory right to file this instant
petition for post-conviction relief until the enactment of Tennessee Code Annotated 40-30-301 Et.
Seq. (Post-Conviction DNA Analysis Act of 2001). The Petitioner’s conviction was for a 1986
murder which was tried in 1991 before the advent of adequate DNA testing procedures.” In his brief,
he argues that “a careful and complete reading of the Petition reveals quite plainly that the Defendant
was seeking relief under the Post-Conviction DNA Analysis Act . . . .” He further argues that the
trial court’s “failure to realize the true spirit of his Petition constitutes ‘plain error.’”

         The Post-Conviction DNA Analysis Act provides, in pertinent part, that
         a person convicted of and sentenced for the commission of . . . second degree murder
         . . . may at any time, file a petition requesting the forensic DNA analysis of any
         evidence that is in the possession or control of the prosecution, law enforcement,
         laboratory, or court, and that is related to the investigation or prosecution that
         resulted in the judgment of conviction and that may contain biological evidence.
Tenn. Code Ann. § 40-30-403. “After notice to the prosecution and an opportunity to respond” the
Act requires a court to order DNA analysis if the court finds (1) that “[a] reasonable probability
exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been
obtained through DNA analysis,” id. § 40-30-404; (2) that “[t]he evidence is still in existence and
in such a condition that DNA analysis may be conducted,” id.; (3) that “[t]he evidence was never
previously subjected to DNA analysis or was not subjected to the analysis that is now requested
which could resolve an issue not resolved by previous analysis,” id.; and (4) “[t]he application for
analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the
execution of sentence or administration of justice.” Id.


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        However, a court may order DNA analysis if it makes the following findings:
                (1) A reasonable probability exists that analysis of the evidence will produce
        DNA results which would have rendered the petitioner’s verdict or sentence more
        favorable if the results had been available at the proceeding leading to the judgment
        of conviction;
                (2) [t]he evidence is still in existence and in such a condition that DNA
        analysis may be conducted;
                (3) [t]he evidence was never previously subjected to DNA analysis, or was
        not subjected to the analysis that is now requested which could resolve an issue not
        resolved by previous analysis; and
                (4) [t]he application for analysis is made for the purpose of demonstrating
        innocence and not to unreasonably delay the execution of sentence or administration
        of justice.
Id. § 40-30-405. The Act also states that “[t]he court may, at any time during proceedings instituted
under this part, appoint counsel for an indigent petitioner.” Id. § 40-30-407.

        In this case, the trial court treated the Appellant’s petition as a second petition for post-
conviction relief and therefore summarily dismissed the petition. In dismissing the petition, the court
relied on Tennessee Code Annotated § 40-30-202 of the Post-Conviction Procedure Act, which
provides, in part, as follows:
        This part contemplates the filing of only one (1) petition for post-conviction relief.
        In no event may more than one (1) petition for post-conviction relief be filed
        attacking a single judgment. If a prior petition has been filed which was resolved on
        the merits by a court of competent jurisdiction, any second or subsequent petition
        shall be summarily dismissed.
Id. § 40-30-202(c). However, it is clear from our reading of the Appellant’s petition that the petition
was filed pursuant to the new Post-Conviction DNA Analysis Act. Therefore, we reverse the
judgment of the trial court and remand this case to the trial court to make findings of fact pursuant
to the Post-Conviction DNA Analysis Act regarding whether DNA analysis should be ordered in this
case, whether counsel should be appointed to aid the Appellant in this cause, and whether the
Appellant’s physical presence is necessary in the Circuit Court for Giles County for the adjudication
of this case.

         Accordingly, the judgment of the trial court is REVERSED, and this case is REMANDED
to the trial court for further proceedings consistent with this opinion.



                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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