              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE                              FILED
                                                                         February 24, 2000
                             JANUARY 2000 SESSION
                                                                         Cecil Crowson, Jr.
                                                                        Appellate Court Clerk


ASHLEE M. SELLARS,                )
                                  )
              Appellant,          )      No. E1999-00356-CCA-R3-PC
                                  )
                                  )      Knox County
v.                                )
                                  )      Honorable Richard Baumgartner, Judge
                                  )
STATE OF TENNESSEE,               )      (Post-conviction)
                                  )
             Appellee.            )



For the Appellant:                       For the Appellee:
J. Liddell Kirk                          Paul G. Summers
706 Walnut Street, Suite 902             Attorney General of Tennessee
Knoxville, TN 37902                             and
                                         R. Stephen Jobe
                                         Assistant Attorney General of Tennessee
                                         425 Fifth Avenue North
                                         Nashville, TN 37243

                                         Randall E. Nichols
                                         District Attorney General
                                                 and
                                         William H. Crabtree
                                         Assistant District Attorney General
                                         Post Office Box 1468
                                         Knoxville, TN 37901-1468




OPINION FILED:____________________



REVERSED AND REMANDED

Joseph M. Tipton
Judge


                                      OPINION



             The petitioner, Ashlee M. Sellars, appeals as of right from the Knox

County Criminal Court’s dismissal of her petition for post-conviction relief. On January
30, 1998, the petitioner pled guilty to facilitation of felony murder, a Class A felony, and

especially aggravated robbery, a Class A felony. The trial court sentenced her to

concurrent twenty-five year terms. The trial court dismissed the post-conviction petition
for failing to state a claim for relief. The petitioner contends that the trial court erred in

dismissing her petition without an evidentiary hearing because it stated a colorable

claim. She claims that her guilty pleas were not knowing and voluntary because they
resulted from emotional coercion from her mother the night before she entered her

plea. The state contends that the petitioner failed to allege a violation of her

constitutional rights. We reverse the trial court’s dismissal of the petition and remand
the case for an evidentiary hearing.



              The petitioner filed a pro se petition. The trial court appointed counsel,

and the attorney amended the petition. The amended petition alleges that the

petitioner, who was nineteen at the time of her plea, did not knowingly and voluntarily

plead guilty. It claims that the petitioner had insisted upon proceeding to trial until the

day before her guilty plea. Her attorney explained the plea offer that day and strongly

advised her to accept it. When she refused, her attorney asked her mother to help

convince her to plead guilty. That night, her mother, crying hysterically, begged her to

accept the state’s offer. As a result of this pressure, the petitioner agreed to plead

guilty. The petition also alleges that at the time she pled guilty, the petitioner:
              was afraid and confused about what was going on around her,
              and not in a clear frame of mind. She did not fully understand
              and appreciate the consequences of her waiver of her
              constitutional rights against self-incrimination and her due
              process rights to a fair jury trial.
The trial court dismissed the petition, finding that the facts, taken as true, failed to show

that the petitioner was entitled to relief.



              The trial court is required to dismiss a petition for post-conviction relief

after its preliminary consideration if the facts alleged, taken as true, “fail to show that

the petitioner is entitled to relief.” Tenn. Code Ann. § 40-30-206(f). Post-conviction

relief is only available when the petitioner’s conviction or sentence is void or voidable
due to the abridgement of a constitutional right. Tenn. Code Ann. § 40-30-203. A guilty

plea must be voluntarily, knowingly, and understandingly entered before a conviction

thereon can comply with due process. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.

                                               2
Ct. 1709, 1712 (1969). A guilty plea is not voluntary “if it is the product of ‘[i]gnorance,

incomprehension, coercion, terror, inducements, [or] subtle or blatant threats . . . .’”

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at
242-43, 89 S. Ct. at 1712).



              We cannot say that a guilty plea resulting from coercion by a family
member could never be involuntary, especially when combined with allegations of

mental confusion. The state argues that although an involuntary guilty plea resulting

from coercion violates due process, due process protects individuals from overbearing
action by the state, not third parties. However, our analysis of whether a guilty plea is

involuntary does not turn upon the source of the coercion. The standard for assessing

the validity of a guilty plea is “‘whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant.’” Blankenship,

858 S.W.2d at 904 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160,

164 (1970)). Thus, our focus is upon the accused. The petitioner’s allegation that her

guilty plea was involuntary because she was coerced by her mother and confused

states a colorable claim for post-conviction relief. We also note that although not

argued at the motion hearing or in the briefs, the petitioner alleges that she

was not competent to appreciate the consequences of her waiver of her right against

self-incrimination and to a jury trial. This allegation presents a colorable claim as well.
Thus, the petitioner is entitled to the opportunity to prove her allegations in an

evidentiary hearing.



              Based upon the foregoing and the record as a whole, we reverse the trial

court’s dismissal of the petition and remand the case for an evidentiary hearing.




                                                  ________________________________
                                                  Joseph M. Tipton, Judge



CONCUR:


_______________________________
James Curwood W itt, Jr., Judge

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_______________________________
Norma McGee Ogle, Judge




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