           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                              AT KNOXVILLE                     June 4, 1999

                            MARCH 1999 SESSION               Cecil Crowson, Jr.
                                                            Appellate C ourt
                                                                Clerk


JERRY E. BRITT,                      )       C.C.A. 03C01-9806-CR-00208
                                     )       HAMBLEN COUNTY
                                     )
            Appellant,               )       Hon. James E. Beckner, Judge
                                     )
vs.                                  )       (POST- CONVICTION)
                                     )       No. 97-CR-213
STATE OF TENNESSEE,                  )
                                     )
            Appellee.                )



FOR THE APPELLANT:                           FOR THE APPELLEE:


WILLIAM A. ZIERER                            JOHN KNOX WALKUP
124 West Main Street                         Attorney General & Reporter
P.O. Box 1276
Morristown, TN 37816-1276                 ELIZABETH B. MARNEY
                                          Assistant Attorney General
                                          425 Fifth Avenue North
                                          2nd Floor, Cordell Hull Bldg.
                                          Nashville, TN 37243

                                             C. BERKELEY BELL, JR.
                                             District Attorney General
                                             109 South Main Street, Ste 501
                                             Greeneville, TN 37743

                                             VICTOR J. VAUGHN
                                             Assistant District Attorney
                                             Hamblen County Justice Ctr.
                                             Morristown, TN 37814
OPINION FILED:_______________


REVERSED

CORNELIA A. CLARK
Special Judge
                                          OPINION

          The appellant, Jerry Britt, appeals the denial of his petition for post-

conviction relief. The trial court dismissed the petition without a hearing

because it found the allegations to be unfounded. Upon review, we reverse

the judgment of the trial court and remand the case for further proceedings.

          An understanding of the unusual procedural history of this case is

necessary to the decision we reach. We are hampered in reciting that history

because of this originally pro se appellant?s failure to include in the record all

relevant documentation.

          On November 19, 1996, the petitioner pled guilty to three counts of

attempted rape of a child, a Class B felony; seven counts of possession of

methamphetamines, a Schedule II controlled substance, with intent to sell or

deliver, a Class C felony; and one count of possession of a Schedule IV

controlled substance, a Class D felony. As part of the agreed disposition, he

received sentences of twelve years, six years, and four years respectively as to

each count of each class. The twelve-year sentences were run concurrent to

one another and to the four-year sentences, but consecutive to the six year

sentences, each of which was run consecutive to the others. The total

effective sentence was forty-eight years.1

          On August 26, 1997, petitioner filed a pro se petition for post-conviction relief.2

On August 28 the District Public Defender was appointed to represent the appellant.

The matter was set for hearing November 14. The affidavit of Edward H. Moody,

assistant public defender, reflects that by letter dated October 27, 1997, appellant

requested an enlargement of time, or, if necessary, the right to dismiss and refile his

petition. By order dated




1
 No judgment orders have been made part of the record. The transcript of the guilty
plea proceeding is not completely clear as to case numbers, but does contain
adequate information about the length of each sentence.

2
    This pleading has not been included in the record.

                                               2
November 5, 1997, the court dismissed the petition without prejudice to a timely

refiling.

        On November 10, 1997, petitioner filed a new pro se petition for post-

conviction relief. On February 9, 1998, the trial court entered an order appointing the

District Public Defender to represent the defendant.

        On March 5, 1998, defendant wrote a letter to his counsel purporting to

discharge him from further representation. On March 20, 1998, the trial court relieved

the District Public Defender from further representation. By order dated March 30,

1998, reflecting a hearing date of March 27, the court dismissed the petition without

appointing alternate counsel and without conducting a hearing. The order reflects,

however, that the court did consider the petition for post-conviction relief, the answer

of the State, and the transcript of the guilty plea hearing of November 19, 1996. This

transcript was made an attachment to the order.

        Appellant contends primarily that he was denied effective assistance of counsel

at his guilty plea hearing because he was not advised specifically of the consequences

of his guilty plea - that he would receive a forty-eight year sentence and that he might

not be eligible for parole after service of thirty percent (30%) of that part of the

sentence related to the attempted rapes. He asserts his understanding that his sentence

would be only fifteen years. Pursuant to Tenn. Code Ann. ?40-30-209, the trial court is

obligated to review the entire case after the state files an answer to a petition. Once the

court has completed its review, if it determines that a petitioner is not entitled to relief,

the court shall dismiss the petition. Id.

        The transcript of the guilty plea hearing clearly reflects that the trial court fully

explained to and advised the appellant about all of his constitutional

rights. In addition, the trial court explained the nature of an Alford plea and




                                              3

various sentencing matters.3 The state provided a full summary of evidence against the

3
 Appellant admitted his guilt on the drug charges. As to the attempted rape charges,
he entered a plea of best interest under North Carolina v. Alford, 400 U.S. 25, 91 S.
Ct. 160, 27 L.Ed. 2d 162 (1970).
petitioner. The court specifically addressed with the defendant the possibility that he

would have to serve his entire sentence. Defendant affirmatively responded to all the

trial court?s questions, including those concerning his satisfaction with his counsel?s

representation.

        After reviewing the transcript we are convinced that most of appellant?s

contentions are without merit. The requirements of Rule 11, Tenn. R. Crim. P., State v.

Mackey, 553 S.W. 2d 337 (Tenn. 1977) and State v. McClintock, 732 S.W. 2d 268

(Tenn. 1987), were met. The judge properly advised the appellant of all of his rights

and made a determination that he understood those rights. The trial court also

discussed thoroughly with the appellant the nature and length of his sentences, and the

effect of his plea of guilty to attempted rape of a child. Information was presented to

the court about the inconsistency of the victim?s statements. Appellant?s counsel then

stipulated the accuracy of the statement of facts.

        However, appellant also asserts, though inarticulately, that his counsel was

ineffective in failing to investigate fully all issues pertaining to the case, including the

veracity of the rape victim. He asserts that that lack of information made him unable to

make an informed decision about whether to enter a guilty plea. His plea to rape was

clearly one of best interest under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,

27 L.Ed. 2d 162 (1970). Unless otherwise prohibited by law, appellant is entitled to a

hearing to present fully the facts relevant to this allegation.

        Additionally, the record is not clear about the reason the trial judge permitted

appointed post-conviction counsel to withdraw merely because appellant expressed his

displeasure with counsel. The record also is not clear about why, since the court

initially found that appointment of counsel and a hearing was necessary, a contrary

determination was made later.

        We believe the appellant should have new counsel appointed and should be

given an evidentiary hearing so that he will have the opportunity to

try to prove his allegation that his original trial counsel did not properly investigate his

case, as well as any other allegation that new counsel may determine is appropriate.




                                              4
We readily acknowledge that the appellant may have a difficult time proving his

allegations by clear and convincing evidence, as the Act requires him to do. Tenn.

Code Ann. ?40-30-210(f). However, because his petition was filed in a timely fashion

without the assistance of counsel and the Act contemplates only one opportunity to

raise all post-conviction issues, we believe the Post-Conviction Procedure Act gives

appellant the opportunity to be heard.

       The judgment of the trial court dismissing the post-conviction petition is

reversed and this case is remanded for further proceedings.




                                               ___________________________
                                               CORNELIA A. CLARK
                                               SPECIAL JUDGE


CONCUR:



____________________________
GARY R. WADE
JUDGE



____________________________
NORMA M. OGLE
JUDGE




                                           5


          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE

                               MARCH 1999 SESSION


JERRY E. BRITT,                                )    C.C.A. 03C01-9806-CR-00208
                                               )    HAMBLEN COUNTY
                                               )
               Appellant,                      )    Hon. James E. Beckner, Judge
                                               )
vs.                                            )    (POST CONVICTION)
                                           )      No. 97-CR-213
STATE OF TENNESSEE,                        )
                                           )
              Appellee.                    )




                                   JUDGMENT

        Came the appellant, Jerry Britt, pro se and also came the attorney
general on behalf of the State, and this case was heard on the record on
appeal from the Circuit Court of Hamblen County; and upon consideration
thereof, this court is of the opinion that there is reversible error in the judgment
of the trial court.

       Our opinion is hereby incorporated in this judgment as if set out
verbatim.

        It is, therefore, ordered and adjudged by this court that the judgment of
the trial court is REVERSED, and the case is remanded to the Circuit Court of
Hamblen County for further proceedings consistent with this opinion.

      It appears that the appellant is indigent. Costs of this appeal will be
paid by the State of Tennessee.

                                           PER CURIAM

                                           Gary R. Wade, Judge
                                           Norma M. Ogle, Judge
                                           Cornelia A. Clark, Special Judge
