             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE              FILED
                              JULY 1996 SESSION
                                                           August 13, 1997

JOHN WILLIAM EVANS                 )                      Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
                                   )     C.C.A. NO. 03C01-9601-CR-00018
             Appellant             )
vs.                                )     Knox Criminal
                                   )
STATE OF TENNESSEE                 )     Honorable Mary Beth Leibowitz
                                   )
             Appellee              )     Post-Conviction Relief




For Appellant:                           For Appellee:

John E. Eldridge                         Charles W. Burson
606 W. Main Ave., Suite 350              Attorney General and Reporter
P.O. Box 84
Knoxville, TN 37901-0084                 Robin L. Harris
                                         Assistant Attorney General
                                         450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         Randall E. Nichols
                                         District Attorney General

                                         Robert L. Jolley, Jr.
                                         Asst. District Attorney General
                                         City-County Building
                                         Knoxville, TN 37902




OPINION FILED_____________

AFFIRMED

WILLIAM M. DENDER, SPECIAL JUDGE


                                  OPINION
        On February 15, 1995, the appellant pled guilty to aggravated assault, and he

was sentenced to three years as a Range 1 Offender. On June 8, 1995, appellant filed

a pro se petition for post-conviction relief. Attorney John Eldridge was appointed as

counsel for appellant, and he filed an amendment, which was not verified under oath, to

the appellant's petition on September 7, 1995. A hearing was held concerning the

petition on September 11, 1995, and the trial judge took the case under advisement.

An Order and Findings of Facts and Conclusions of Law, which dismissed appellant's

petition without an evidentiary hearing and without requiring the State to respond, was

filed on September 28, 1995. This is his appeal as of right from the judgment of the

trial court.



        The sole issue is whether the trial judge properly dismissed the petition for post-

conviction relief without an evidentiary hearing and without requiring the State to

respond. The judgment of the trial court is affirmed.



                                          FACTS



        The petition for post-conviction relief was filed on a form promulgated under the

law that was in effect before May 10, 1995, and it asserted two grounds for relief: (1)

the involuntariness of his guilty plea, and (2) ineffective assistance of counsel. The

facts alleged in the original petition to support the above grounds for relief are, "No one

would listen to my side of the story. No witness. Nothing was discuss what was going to

happen before the case came up. Was confused about the plea."




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       The Post-Conviction Relief Procedure Act governing this case took effect on May

10, 1995.



       Appointed counsel filed an amendment to appellant's pro se petition, and the

matter came on to be heard on September 11, 1995. Due to inadvertence, the 30 day

period in which the trial court is required to act had elapsed; however, appellant has not

complained, and we do not consider such to be significant in this case. The State

pointed out that the facts alleged in the original petition as the basis for the alleged

grounds were insufficient, and that the amendment was not verified under oath. The

trial court gave the appellant an opportunity to verify the amendment under oath, in

order for the amendment to be considered; but counsel for the appellant, after

consultation with the appellant, declined to place the appellant under oath and agreed

that the court could rule upon the petition as filed. The record reveals that appellant

was under investigation for first degree murder in another case at the time of the

hearing on September 11, 1995, and that Attorney Eldridge had also been appointed to

represent appellant in that matter.



       In the written Order and Findings of Facts and Conclusions of Law filed by the

trial court, the court found that appellant had not complied with the Act effective May 10,

1995, and that the petition did not state a factual basis for the alleged grounds.



                                ANALYSIS AND HOLDING



       Acts 1995, ch. 207, § 3, provides that such act, which repealed the former

chapter and enacted the current Post-Conviction Procedure Act, shall govern all

petitions for post-conviction relief filed after May 10, 1995, and any motions filed after

that date to reopen petitions for post-conviction relief which were concluded prior to


                                              3
May 10, 1995.



       Portions of T.C.A. § 40-30-206 are as follows:

       (d) The petition 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. A bare allegation that a constitutional right has been violated and mere
       conclusions of law shall not be sufficient to warrant any further proceedings.
       Failure to state a factual basis for the grounds alleged shall result in immediate
       dismissal of the petition. If, however, the petition was filed pro se, the judge may
       enter an order stating that the petitioner must file an amended petition that
       complies with this section within fifteen (15) days or the petition will be
       dismissed.

       (e) If a petition amended in accordance with subsection (d) is incomplete, the
       court shall determine whether the petitioner is indigent and in need of counsel.
       The Court may appoint counsel and enter a preliminary order if necessary to
       secure the filing of a complete petition. Counsel may file an amended petition
       within thirty (30) day of appointment.

       (f) Upon receipt of a petition in proper form, or upon receipt of an amended
       petition, the court shall examine the allegations of fact in the petition. If the facts
       alleged, taken as true, fail to show that the petitioner is entitled to relief or fail to
       show that the claims for relief have not been waived or previously determined,
       the petition shall be dismissed. The order of dismissal shall set forth the court's
       conclusions of law.



       We hold that the facts alleged to support the grounds for relief are insufficient.

Counsel had been appointed and had filed an amendment to the petition to allege

additional facts to support the grounds for relief, but the amendment was not verified

under oath. T.C.A. § 40-30-204 (e) states, "The petition and any amended petition

shall be verified under oath." The appellant was given the opportunity to verify the

amendment to the petition under oath, but he elected not to do so. The original

petition must stand on its own, and it fails to state a colorable claim for relief. In

accordance with T.C.A. § 40-30-206(f) above quoted, the trial court was correct is

dismissing the petition without an evidentiary hearing.



       In order to decide this appeal it is not necessary for us to review the transcript of



                                               4
the hearing where the appellant pled guilty to aggravated assault; however, a review

thereof leads us to the conclusion that appellant's guilty plea was freely, voluntarily, and

knowingly given. He was also advised that his conviction could be used against him in

the sentencing stage for any future criminal convictions; and this possibility was

specifically discussed in relationship to the possibility that appellant would be indicted

for first degree murder in another case which was currently under investigation.



       For the reasons stated herein, the trial court is affirmed, and the case is

remanded to the trial court for all necessary proceedings not inconsistent with this

opinion.



                                                 ________________________________
                                                 William M. Dender, Special Judge



CONCUR:



__________________________________
Joseph B. Jones, Presiding Judge



__________________________________
David G. Hayes, Judge




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