         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE        FILED
                      NOVEMBER 1998 SESSION
                                               December 10, 1998

                                               Cecil W. Crowson
                                              Appellate Court Clerk
MARK A. HIGGINS,                )
                                )    NO. 01C01-9711-CC-00513
      Appellant,                )
                                )    WILLIAMSON COUNTY
VS.                             )
                                )    HON. HENRY DENMARK BELL,
STATE OF TENNESSEE,             )    JUDGE
                                )
      Appellee.                 )    (Post-Conviction)



FOR THE APPELLANT:                   FOR THE APPELLEE:

MARK HIGGINS, Pro Se                 JOHN KNOX WALKUP
#268562                              Attorney General and Reporter
B.M.C.X., P. O. Box 2000
Wartburg, TN 37887-2000              TIMOTHY BEHAN
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     JOSEPH D. BAUGH
                                     District Attorney General
                                     P. O. Box 937
                                     Franklin, TN 37065-0937




OPINION FILED:



REVERSED AND REMANDED



JOE G. RILEY,
JUDGE
                                     OPINION


       Petitioner, Mark A. Higgins, appeals the dismissal of his petition for post-

conviction relief without a hearing by the Williamson County Circuit Court. Petitioner

alleges his guilty plea to aggravated rape was unknowing and his sentence illegal

since he was sentenced as a standard 30% Range I offender, whereas the statute

classifies him as a violent 100% offender. We conclude, and the state concedes,

that the petition states a colorable claim for relief; therefore, we reverse and remand

for the appointment of counsel so that the petition for post-conviction relief may

proceed on the merits.



                          PROCEDURAL BACKGROUND



       On October 9, 1996, petitioner entered a guilty plea to aggravated burglary

and aggravated rape. Pursuant to a plea agreement, he was sentenced as a

standard 30% Range I offender to five years for aggravated burglary and twenty-

three years for aggravated rape with the sentences to run consecutively.

       On September 16, 1997, he timely filed a petition for post-conviction relief

alleging the standard 30% Range I offender designation for aggravated rape was

contrary to the statute which requires service of at least 85% of the sentence (Tenn.

Code Ann. § 40-35-501(i))1; therefore, he contended his plea was unknowing. The

trial court independently reviewed the video record of the plea of guilty.               It

concluded the guilty plea was “both voluntary and informed” and allowed petitioner

15 days to file an amended petition containing a proper factual basis.                 No

amendment was filed, and the petition was subsequently dismissed. Defendant

timely filed a notice of appeal.

       After the filing of the notice of appeal, the trial court entered an amended

judgment. This amended judgment filed July 8, 1998, changes the standard 30%


       1
        This statute provides that those convicted of aggravated rape and certain other
offenses shall serve 100% of the sentence less certain sentencing credits not to exceed 15%.
Thus, 85% of the sentence is the earliest possible release eligibility date.

                                            2
Range I designation to a violent 100% designation. We assume the trial court was

simply making the proper designation as required by statute. See Tenn. Code Ann.

§ 40-35-501(i).



                                        ANALYSIS



       The state concedes that the petitioner asserted sufficient facts to support a

colorable claim for relief. We agree.

       Upon the filing of a petition for post-conviction relief, the trial judge is to

examine the petition. Tenn. Code Ann. § 40-30-206(a). Before there can be a

preliminary dismissal, however, the statute requires the trial court to assume “as

true” the facts alleged by the petitioner. Tenn. Code Ann. §40-30-206(f). If no

colorable claim is set forth under this standard, the petition may be dismissed;

otherwise, counsel should be appointed to assist petitioner in the proceedings.

Waite v. State, 948 S.W.2d 283, 285 (Tenn. Crim. App. 1997).

       In the case sub judice the trial court conducted an independent review of the

video record of the plea of guilty and conclusively determined that the petition was

without merit.2 Such an independent review is improper under these circumstances.

Terry L. Charlton v. State, C.C.A. No. 01C01-9701-CC-00002, Hickman County

(Tenn. Crim. App. filed August 20, 1998, at Nashville).

       The record does not establish whether or not trial counsel erroneously

advised petitioner of the release eligibility date. See Walton v. State, 966 S.W.2d

54, 55 (Tenn. Crim. App. 1997). The record does establish that the trial court at the

time of sentencing erroneously entered a judgment for aggravated rape designating

petitioner as a “standard 30% Range I” offender. 3 It is undetermined whether the



       2
         The video record of the guilty plea was made a part of the appellate record. It verifies
that the plea agreement called for a standard 30% Range I designation which was approved
and imposed by the trial judge.
       3
         The Attorney General has recently opined that (1) the Department of Correction may
not alter an erroneous standard offender designation in a judgment; (2) the Board of Paroles
may grant parole to violent offenders; and (3) the manner of service of a violent offense cannot
be altered by plea agreement. Attorney General Opinion 98-126 (7-20-98)

                                              3
plea was knowingly entered. The trial court’s subsequent entry of an amended

judgment designating petitioner as a “violent 100%” offender was contrary to the

plea agreement and does not resolve the issue as to the propriety of the guilty plea.



                                  CONCLUSION



       Based upon the foregoing, we reverse and remand to the trial court for

appointment of counsel so that petitioner may proceed on his petition for post-

conviction relief. Upon remand, the trial court shall also address the amended

judgment designating petitioner as a violent 100% offender.



                                                 ___________________________
                                                 JOE G. RILEY, JUDGE



CONCUR:



_______________________________
PAUL G. SUMMERS, JUDGE



_______________________________
L. T. LAFFERTY, SENIOR JUDGE




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