        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs at Knoxville December 13, 2011

              CHARLES E. ORANGE v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Bedford County
                      No. 12199      Robert G. Crigler, Judge


                 No. M2011-01168-CCA-R3-PC - Filed April 20, 2012


The Petitioner, Charles E. Orange, appeals the Bedford County Circuit Court’s denial of
post-conviction relief. On appeal, he contends that the trial court erred by summarily
dismissing his petition without appointing counsel or giving him an opportunity to amend
his petition. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Charles E. Orange, Clifton, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       The record on appeal does not contain a transcript of the guilty plea hearing or the
judgments of conviction, but the record reflects that the Petitioner was charged with four
counts of selling one-half gram or more of cocaine, four counts of delivering one-half gram
or more of cocaine, possessing one-half gram or more of cocaine with intent to sell,
possessing one-half gram or more of cocaine with intent to deliver, possessing between one-
half ounce and ten pounds of marijuana with intent to sell, and possessing between one-half
ounce and ten pounds of marijuana with intent to deliver. The Petitioner pled guilty on
February 22, 2010, to six drug offenses and was sentenced to an effective sentence of twenty-
two years.
       On December 10, 2010, the Petitioner filed a petition for post-conviction relief
alleging that because trial counsel did not tell him that the trial court could not engage in
judicial factfinding during sentencing, he did not receive the effective assistance of counsel,
and his guilty pleas were not knowingly and voluntarily entered. He also alleged that he did
not enter knowing and voluntary pleas or receive effective assistance because counsel did not
tell him that he was “supposed” to be sentenced to the statutory minimum within the
applicable sentencing ranges. The Petitioner’s claims were based on the sentencing law that
applied before amendments to the Sentencing Act took effect on June 7, 2005, and on
Blakely v. Washington, 542 U.S. 296 (2004), which concluded that in certain instances, the
Sixth Amendment precluded enhancement of sentences by judicial factfinding.

       The trial court dismissed the petition after concluding that it contained “mere
conclusions of law all of which are erroneous and because it failed to state a factual basis for
the grounds alleged.” The trial court noted that because the earliest offense occurred on May
15, 2009, “the Blakely et al cases which the Defendant believes show him entitled to jury
determination of enhancing factors do not apply. Contrary to the defendant’s assertion, his
counsel would have misadvised the Defendant if he had told him that he could object to any
judicial fact-finding regarding enhancement factors.” This appeal followed.

        The Petitioner contends that the trial court erred by summarily dismissing his petition
because it presented colorable claims for relief, in that it alleged that he did not receive the
effective assistance of counsel and that his guilty pleas were not knowingly and voluntarily
entered. The State contends that the Petitioner has waived consideration of this issue by
failing to present an adequate record on appeal and failing to support his argument with
references to the record. The State also contends that the trial court properly dismissed the
petition without a hearing because the Petitioner failed to allege a colorable claim for relief
and failed to state a factual basis for the grounds alleged. We hold that the trial court did not
err in dismissing the petition.

        With regard to the State’s contention that the Petitioner waived consideration of this
issue, the Petitioner had “a duty to prepare a record which conveys a fair, accurate and
complete account of what transpired with respect to the issues forming the basis of the
appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Bunch, 646
S.W.2d 158, 160 (Tenn. 1983)). In determining if summary dismissal of a petition for post-
conviction relief is appropriate, the trial court was required to consider the factual allegations
contained in the petition as true. See T.C.A. § 40-30-106(f) (2010). If the facts alleged,
taken as true, fail to show that the Petitioner was entitled to relief, summary dismissal is
appropriate. Id. Because the Petitioner contends that the trial court erred by summarily
dismissing his petition, and the petition and the indictments are included in the appellate
record and are cited by the Petitioner in his argument, the record is sufficient to allow us to


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determine if the petition stated a colorable claim for relief. The Petitioner has not waived
consideration of this issue.

        With regard to the Petitioner’s claim that he did not receive the effective assistance
of counsel and that his guilty pleas were not knowingly and voluntarily entered, he contends
trial counsel was required to tell him that he was supposed to be sentenced to the statutory
minimum and that the trial court could not engage in judicial factfinding during sentencing.
We disagree. The Defendant’s reliance on Blakely and pre-2005 sentencing law is
misplaced. In Blakely, the Supreme Court held, “If the jury’s verdict alone does not
authorize the sentence, if, instead, the judge must find an additional fact to impose the longer
term, the Sixth Amendment requirement is not satisfied.” Cunningham v. California, 549
U.S. 270, 290 (2007) (citing Blakely, 542 U.S. at 305). In order to avoid the constitutional
violation arising from a trial court increasing a presumptive sentence on the basis of
judicially determined enhancement factors that were not submitted to the jury, the Tennessee
General Assembly amended the Criminal Sentencing Reform Act in 2005. See T.C.A. §§
40-35-102(6), -114, -210, -401 (2003 & Supp. 2005); 2005 Tenn. Pub. Acts ch. 353, §§ 1,
5, 6, 8. Tennessee Code Annotated section 40-35-210(c) no longer imposes a presumptive
sentence and instead states that the court shall consider, but is not bound by, the following
advisory sentencing guidelines:

                      (1) The minimum sentence within the range of
               punishment is the sentence that should be imposed, because the
               general assembly set the minimum length of sentence for each
               felony class to reflect the relative seriousness of each criminal
               offense in the felony classifications; and

                      (2) The sentence length within the range should be
               adjusted, as appropriate, by the presence or absence of
               mitigating and enhancement factors set out in §§ 40-35-113 and
               40-35-114.

T.C.A. § 40-35-210(c) (2010). From this, “the trial court is free to select any sentence within
the applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008)
(quoting T.C.A. § 40-35-210(d)).

        As noted above, if the facts alleged in a petition for post-conviction relief, taken as
true, fail to show that a petitioner is entitled to relief, the petition shall be dismissed. T.C.A.
§ 40-30-106(f). If a petition is filed pro se and fails to provide a clear and specific statement
of all grounds upon which relief is sought, including full disclosure of the factual basis of


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those grounds, a judge “may enter an order stating that the petitioner must file an amended
petition that complies with [section 106(d)] within fifteen (15) days or the petition will be
dismissed.” T.C.A. § 40-30-106(d). Although a judge may allow a petitioner to file an
amended petition, “the statute does not mandate that the judge do so.” Powell v. State, 8
S.W.3d 631, 633 (Tenn. Crim. App. 1998).

       Because the Petitioner’s earliest offense date was May 15, 2009, the Petitioner was
sentenced under the law as it existed after the 2005 amendments to the Sentencing Act. The
2005 amendments removed presumptive sentences and permitted the trial court to consider
enhancement factors not submitted to the jury or admitted by the Petitioner. Trial counsel
would have provided incorrect information had he told the Petitioner that he was supposed
to be sentenced to the statutory minimum or that the trial court could not engage in judicial
factfinding when determining the applicability of enhancement factors. Taking all of the
Petitioner’s allegations as true, the petition failed to show that the Petitioner was entitled to
relief. We conclude that the trial court did not err by dismissing the petition without
appointing counsel or giving the Petitioner an opportunity to amend his petition.

       Additionally, we note the Petitioner’s contention that the trial court erred by holding
an evidentiary hearing on his petition without affording him the opportunity to be present.
The record does not reflect that an evidentiary hearing was held. Although a brief hearing
was held on January 14, 2011, the entire hearing consisted of the following exchange:

              THE COURT: Charles Orange. He has filed a complaint about
              Blakely. I don’t believe Blakely is applicable to a guilty plea,
              I think if I remember right. General, have you looked at that
              one?

              MR. RANDLES: I don’t think I have. I have got it in front of
              me.

              THE COURT: Well, I am going to put down to enter an order
              to dismiss it and I will dictate the reasons to Kim.

The Petitioner incorrectly asserts that the State was allowed to offer input into factual and
legal determinations. No evidence was admitted at the hearing, and the State offered no
input on the resolution of the petition. The Petitioner is not entitled to relief.




        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.

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  ___________________________________
  JOSEPH M. TIPTON, PRESIDING JUDGE




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