                                                                                       03/02/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs December 13, 2017

               TERRY LEA BUNCH v. STATE OF TENNESSEE

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

                          No. M2017-00670-CCA-R3-PC
                      ___________________________________


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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.

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.

                                       OPINION

        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 Court2 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

        1
          There is some indication in the record that Petitioner filed and ultimately withdrew some sort of
appeal in the Circuit Court prior to the filing of the instant post-conviction petition.
        2
          The Circuit Court had jurisdiction to hear the petition under Tennessee Code Annotated section
40-30-104(a) (“Petitions challenging misdemeanor convictions not in a court of record shall be filed in a
court of record having criminal jurisdiction in the county in which the conviction was obtained, and the
case shall be assigned as set forth in § 40-30-105(b).”).
                                                    -2-
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. § 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 may dismiss the
petition without appointing counsel or allow the petitioner the opportunity to amend the
petition if it finds that the petition has failed to state a colorable claim. Burnett v. State,
92 S.W.3d 403, 406 (Tenn. 2002); Pewitt v. State, 1 S.W.3d 674, 676 (Tenn. Crim. App.
1999).

        Petitioner’s pro se post-conviction petition alleged a due process violation with
respect to the charging instrument, in this case the arrest warrant and affidavit of
complaint. While both the state and federal constitutions guarantee an accused the right
to be informed of the nature and cause of the accusation against him, neither creates a
right to a charging instrument free from defect. See State v. Hill, 954 S.W.2d 725, 727
(Tenn. 1997) (recognizing “that an indictment need not conform to traditionally strict
pleading requirements”). To satisfy constitutional requirements, a charging instrument
must “‘1) provide notice to the accused of the offense charged; 2) provide the court with
an adequate ground upon which a proper judgment may be entered; and 3) provide the
defendant with protection against double jeopardy.’” State v. Lindsey, 208 S.W.3d 432,
438 (Tenn. Crim. App. 2006) (quoting Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000)).
Petitioner’s specific contention—that the charging instrument fails to comply with the
requirements for charging an enhanced DUI under Tennessee Code Annotated section
55-10-411(b)(2)—alleges only a statutory violation rather than a constitutional violation.
Petitioner’s claim, even if true, would not entitle him to relief under the Post-Conviction

        3
          Though the judgment filed in the General Sessions Court does not indicate whether Petitioner
was represented by an attorney, Petitioner indicated in his post-conviction petition that he was represented
by an attorney throughout the proceedings.
                                                    -3-
Procedure Act. See Kenneth DeWayne Johnson v. State, No. M2013-02491-CCA-R3-
PC, 2014 WL 3696268, at *3 (Tenn. Crim. App. July 24, 2014) (citing T.C.A. § 40-30-
103) (holding that a statutory defect in a charging instrument did not raise a cognizable
claim for post-conviction relief), perm. app. denied (Tenn. Nov. 19, 2014). Moreover,
Petitioner’s guilty plea waived all non-jurisdictional defects in the charging instrument.
See State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (“[T]he voluntary entry of an
informed and counseled guilty plea constitutes an admission of all facts necessary to
convict and waives all non-jurisdictional defects and constitutional irregularities which
may have existed prior to the entry of the guilty plea.”).

        Petitioner’s contention on appeal that he “incorrectly framed the issue” and would
have amended his petition to allege ineffective assistance of counsel does not entitle him
to relief. Petitioner is incorrect in his assertion that a post-conviction court is limited to
dismissing a petition upon its preliminary review only if the petition appears to have been
filed in the wrong court, is filed outside the statute of limitations, or is a second petition
attacking a conviction when the first was resolved on the merits. See T.C.A. § 40-30-
106(b). As discussed above, the post-conviction court may summarily dismiss a petition
during its preliminary review if the petition fails to state a colorable claim for relief. See
Tenn. Sup. Ct. R. 28 § 6(B)(4)(a); T.C.A. § 40-30-106(f). A post-conviction petition
must contain “all claims known to the petitioner for granting post-conviction relief.”
T.C.A. § 40-30-104(d); see also T.C.A. § 40-30-106(d) (stating that the petition must
“contain a clear and specific statement of all grounds upon which relief is sought”). A
post-conviction court is not required to allow a pro se petitioner the opportunity to amend
a post-conviction petition in order to add additional grounds for relief or additional
factual allegations supporting his claims for relief. See T.C.A. § 40-30-106(d); Harris v.
State, 996 S.W.2d 840, 842 (Tenn. Crim. App. 1999) (“Although the statute grants the
trial judge the discretion to allow a pro se petitioner fifteen days within which to amend
the petition to comply with the code section, the statute does not mandate that the judge
do so.”). Only if the petition survives the court’s preliminary review is the court then
required to appoint an attorney to an indigent petitioner and allow time for the filing of an
amended petition. See Tenn. Sup. Ct. R. 28 § 6(B)(3); T.C.A. § 40-30-107. Because
Petitioner’s pro se petition did not state a colorable claim for relief, the post-conviction
court did not err in summarily dismissing it without appointing counsel or allowing
Petitioner the opportunity to amend.

                                         Conclusion

       Based on the foregoing, we affirm the judgment of the post-conviction court.


                                           ____________________________________
                                           TIMOTHY L. EASTER, JUDGE
                                             -4-
