        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 12, 2014

                FRANKLIN D. FISH v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Wilson County
             Nos. 09-CR-843, 10-CR-747    David Earl Durham, Judge


               No. M2014-00385-CCA-R3-PC - Filed September 8, 2014


The petitioner, Franklin D. Fish, pro se, appeals the Wilson County Criminal Court’s
summary dismissal of his petition for post-conviction relief for failure to state a colorable
claim. The State concedes that summary dismissal was erroneous. Upon our review, we
reverse the decision of the post-conviction court and remand for proceedings consistent with
the Post-Conviction Procedure Act.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Franklin D. Fish, Pikeville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Tracy L. Alcock, Assistant
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              On January 28, 2013, the petitioner entered pleas of guilty in case number 09-
CR-843 to one count of aggravated burglary and one count of vandalism of property valued
at more than $500 but less than $1,000, and in case number 10-CR-747 to one count of
aggravated burglary and one count of theft of property valued at more than $500 but less than
$1,000. The trial court sentenced the petitioner as a career offender and imposed sentences
of 15 years for both of the aggravated burglary convictions and 6 years each for the
vandalism and theft convictions. The trial court ordered that the sentences in both cases be
served consecutively to one another but that the sentences in case number 09-CR-843 be
served concurrently with the sentences in case number 10-CR-747, for a total effective
sentence of 21 years.
                On December 27, 2013, the petitioner filed a pro se petition for post-conviction
relief. On January 22, 2014, the post-conviction court denied the petition for post-conviction
relief, finding that the petition did not contain “a clear and specific statement of the grounds
upon which relief is sought, including a full disclosure of the factual basis of those grounds,”
pursuant to Tennessee Code Annotated section 40-30-106(d).

            In this timely appeal, the petitioner argues that the post-conviction court erred
by summarily dismissing his petition for post-conviction relief, and the State agrees.

               The Post-Conviction Procedure Act requires that a petition for relief under the
Act “contain a clear and specific statement of all grounds upon which relief is sought,
including full disclosure of the factual basis of those grounds.” T.C.A. § 40-30-106(d). In
the instant case, the petitioner attached to his petition for post-conviction relief a document
entitled “Claims Presented for Ineffective Assistance of Counsel Review,” in which the
petitioner alleged the following:

                      (A) The Petitioner claims that trial counsel rendered
              ineffective assistance of counsel by allowing him to enter a
              guilty plea that was not knowingly, intelligently, and voluntarily
              made. . . .

                     (B) The Petitioner claims that counsel rendered
              ineffective assistance of counsel by allowing him to plead guilty
              to twenty-one years at sixty percent despite being originally
              offered a fifteen years [sic] at sixty percent. . . .

                     (C) The Petitioner claims that counsel rendered the
              ineffective assistance of counsel by failing to file a motion to
              dismiss the indictments despite there being a 40-month delay
              between Petitioner’s first demand of a fast and speedy trial and
              the date the plea was taken. Petitioner was prejudiced by this
              delay because during the time the Petitioner was being held he
              was eventually charged with allegedly committing other crimes
              due to an alleged DNA match used from a specimen given
              during the aforementioned 40-month delay. . . .

                      (D) The Petitioner claims that counsel rendered the
              ineffective assistance of counsel by failing to have his 40-month
              pre-trial jail credits incorporated into his plea deal as promised
              and pursuant to T.C.A. Section 40-23-101(c). After taking plea

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              deal [sic] Petitioner’s counsel gave him a modified version of
              his plea colloquy as that it had marked in pen that credits “to be
              applied to prior sentence only.” . . .

                     (E) The Petitioner claims that counsel rendered the
              ineffective assistance of counsel by failing to investigate the
              victim’s story in comparison to petitioner’s version of events. .
              . . Had counsel performed this competent duty he would have
              learned of several discrepancies in the victim’s story and filed
              for a motion to dismiss said indictment.

              The petitioner’s specific factual allegations are more than sufficient to comply
with the requirements of Code section 40-30-106(d), and, as such, the post-conviction court
erred by summarily dismissing the petition. Accordingly, we reverse the decision of the
post-conviction court and remand for proceedings in accordance with the Post-Conviction
Procedure Act.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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