                                                                                          09/28/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 26, 2018

                 DERRICK HELMS v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Cumberland County
                       No. 15462 David A. Patterson, Judge
                      ___________________________________

                            No. E2017-02421-CCA-R3-PC
                       ___________________________________


Petitioner, Derrick Helms, appeals the summary denial of his pro se petition for post-
conviction relief. He argues that the post-conviction court did not follow the proper
procedures for a preliminary consideration of his petition and that the allegations in the
petition, when taken as true, stated a colorable claim for relief. The State concedes that
the post-conviction court erred in its summary denial of relief without the appointment of
counsel and a hearing. Upon review, we reverse the judgment of the post-conviction
court and remand the case for further proceedings.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.

Wesley D. Stone, Knoxville, Tennessee, for the appellant, Derrick Helms.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Bryant C. Dunaway, District Attorney General; and Phillip Hatch, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION

       On October 24, 2016, Petitioner pleaded guilty, as a Range I standard offender, to
two counts of promotion of methamphetamine manufacturing and received agreed upon
concurrent sentences of six years on both counts. On October 23, 2017, Petitioner filed a
timely pro se petition for post-conviction relief, alleging that he received ineffective
assistance of counsel. Petitioner asserted that trial counsel “never allowed [] [P]etitioner
to review the discovery and therefore [P]etitioner could not make an informed decision
on whether to plead guilty to the charges.” Upon a preliminary review, the post-
conviction court concluded that it could not “find a basis for believing the allegation
contained in the [p]etition in light of the sworn testimony of [] Petitioner during the plea
process” and entered a written order denying post-conviction relief on November 9, 2017.
This timely appeal follows.

                                        ANALYSIS

        Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. A
petition for post-conviction relief “must contain a clear and specific statement of all
grounds upon which relief is sought, including full disclosure of the factual basis of those
grounds.” Tenn. Code Ann. § 40-30-106(d). Upon receipt of a petition for post-
conviction relief, the post-conviction court conducts a preliminary review to “determine
whether the petition states a colorable claim.” Tenn. Sup. Ct. R. 28, § 6(B)(2); Burnett v.
State, 92 S.W.3d 403, 406 (Tenn. 2002). “A colorable claim is a claim, in a petition for
post-conviction relief, that, if taken as true, in the light most favorable to petitioner,
would entitle petitioner to relief under the Post-Conviction Procedure Act.” Tenn. Sup.
Ct. R. 28, § 2(H). When the facts, taken as true, fail to demonstrate that the petitioner is
entitled to relief, then the post-conviction court may dismiss the petition. Tenn. Code
Ann. § 40-30-106(f). If the petition does state a colorable claim, the post-conviction
court “shall enter a preliminary order.” Tenn. Code Ann. § 40-30-107(a). The order
shall appoint counsel for the petitioner if the petitioner is indigent and requests counsel.
Tenn. Code Ann. § 40-30-107(b)(1). The preliminary order shall also direct the petitioner
or the petitioner’s counsel to file an amended petition, or a written notice that no
amendment will be filed, within thirty days of the entry of the order. Tenn. Code Ann. §
40-30-107(b)(2).

       When determining whether a colorable claim has been presented, pro se petitions
are held to a less rigid standard than formal pleadings drafted by attorneys. Allen v. State,
854 S.W.2d 873, 875 (Tenn. 1993). “If the availability of relief cannot be conclusively
determined from a pro se petition and the accompanying records, the petitioner must be
given the aid of counsel.” Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988) (citing
Tenn. Code Ann. §§ 40-30-104, -107, -115). However, “[w]here a petition conclusively
shows that the petitioner is entitled to no relief, it is properly dismissed without the
appointment of counsel and without an evidentiary hearing.” Givens v. State, 702 S.W.2d
578, 580 (Tenn. Crim. App. 1985) (citing Tenn. Code Ann. § 40-30-109). The dismissal
of the petition by the post-conviction court is an issue of law, therefore, this court

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conducts a de novo review without a presumption of correctness. See Burnett v. State, 92
S.W.3d 403, 406 (Tenn. 2002) (citing Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001)).

       Here, Petitioner alleged that trial counsel rendered ineffective assistance based on
trial counsel’s failure to review discovery with Petitioner and that trial counsel’s
ineffectiveness resulted in an unknowing guilty plea. In the light most favorable to
Petitioner, the allegations state a colorable claim for post-conviction relief. Therefore,
the post-conviction court erred in summarily denying the petition.

        In its order denying the petition, it appears that the post-conviction court
considered the evidence in the case and determined that Petitioner would not prevail on
his claims on the merits. While the post-conviction court may ultimately be correct in its
determination, “[t]he ultimate success or failure of a petitioner’s claims is not a proper
basis for dismissing a post-conviction petition without conducting an evidentiary
hearing.” William Alexander Cocke Stuart v. State, No. M2003-01387-CCA-R3-PC,
2004 WL 948390, at *3 (Tenn. Crim. App. May 4, 2004) (citing Roosevelt Malone v.
State, No. E2002-00782-CCA-R3-PC, 2003 WL 21145488, at *2 (Tenn. Crim. App. May
16, 2003)), no perm. app. filed; see also Tenn. Code Ann. § 40-30-106(b)-(d); Gregory
D. Valentine v. State, No. M2014-00977-CCA-R3-PC, 2015 WL 274181, at *7 (Tenn.
Crim. App. Jan. 21, 2015), no perm. app. filed. Furthermore, there is no requirement that
a petitioner prove his claims at the preliminary stage; he must only allege a colorable
claim in his petition. See Shazel v. State, 966 S.W.2d 414, 415-16 (Tenn. 1998) (“There
obviously is an important distinction between the right to seek relief in a post-conviction
proceeding and the right to have relief in a post-conviction proceeding.”). Additionally,
the post-conviction court’s consideration of Petitioner’s comment at the guilty plea
hearing of satisfaction with trial counsel’s performance is not a proper basis for
summarily denying the petition. In Rodney M. Butler v. State, No. W2009-02183-CCA-
R3-PC, 2011 WL 1137059 (Tenn. Crim. App. Mar. 28, 2011), no perm. app. filed, this
court explained:

       . . . Petitioner’s statement under oath at the guilty plea hearing that he was
       “satisfied” with his attorney’s representation, while perhaps compelling
       evidence contrary to testimony of deficient representation in a post-
       conviction hearing, does not equate to a legal determination that counsel
       rendered constitutionally effective assistance of counsel. At the time of a
       guilty plea, a defendant who knows not better, might be “satisfied” with his
       or her counsel’s representation, and later discover that the representation
       was constitutionally ineffective.

Id. at *3.

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                                    CONCLUSION

       In the light most favorable to Petitioner, the allegations in his petition state a
colorable claim for post-conviction relief, and the post-conviction court erred in
summarily dismissing the petition. Accordingly, the judgment of the post-conviction
court is reversed, and we remand this case to the post-conviction court to appoint counsel
for Petitioner and hold an evidentiary hearing as required under the Post-Conviction Act.



                                              ___________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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