         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs May 23, 2001

           DONALD MITCHELL GREEN v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Knox County
                          No. 70417    Mary Beth Leibowitz, Judge



                                  No. E2000-01941-CCA-R3-PC
                                         August 2, 2001

The petitioner, Donald Mitchell Green, appeals the trial court’s denial of post-conviction relief. In
this appeal of right, the petitioner contends that the trial court erred by ordering a dismissal without
an evidentiary hearing. The judgment is reversed and remanded to the trial court for the appointment
of counsel and an evidentiary hearing.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER , JJ., joined.

Donald Mitchell Green, pro se.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and
Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

         On June 14, 1994, the petitioner pled guilty to aggravated robbery, misdemeanor theft, and
failure to appear. He petitioner received an effective sentence of 36 years. This court affirmed on
direct appeal. See State v. Donald Mitchell Green, No. 03C01-9808-CR-00276 (Tenn. Crim. App.,
at Knoxville, June 3, 1999). Permission to appeal to our supreme court was denied on November
22, 1999.

        On April 14, 2000, the petitioner filed this petition for post-conviction relief, alleging that
trial counsel was ineffective by, among other things: (1) failing to establish a defense; (2)
misrepresenting the sentence length of a plea agreement; (3) failing to appeal; (4) failing to file a
motion to withdraw the guilty plea despite assurances to the contrary; and (5) failing to secure
witnesses.

       The petitioner also claimed that the grand jury was unconstitutionally selected and that trial
counsel failed to present any mitigating factors during the sentencing hearing. The trial court entered
an order of dismissal based upon its determination that the petitioner failed to state any colorable
claims under Tenn. Code Ann. § 40-30-206, which provides in pertinent part as follows:

                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. . . .

Tenn. Code Ann. § 40-30-206(d).

         The trial court concluded that the petitioner failed to allege anything more than "bare
allegations," which were not "specific" or "factual," and that he failed to state any grounds for relief.
In its order of dismissal, the trial court observed as follows:

        The transcript in this cause . . . [indicates] that the petitioner entered a blind plea
        subject to the Court’s sentencing. The Court clearly discussed the range of sentence
        and punishment with the petitioner and the plea agreement such that the petitioner
        knew and understood those ranges. While it is true the trial attorney did not file an
        appeal for the petitioner or a motion to withdraw the guilty plea as the trial attorney
        had moved from the jurisdiction[,] the Court appointed counsel for the petitioner .
        . . did indeed file a direct appeal . . . . These issues were previously raised by the
        petitioner who received a maximum sentence within his range upon sentencing by
        the trial court, and the petitioner has been afforded review of the sentence during an
        appeal of his issues.

        After the filing of the petitioner’s appellate brief, the state filed a motion for summary
affirmance. See Tenn. R. Crim. P. 20. This court denied the motion, determining that three of the
petitioner’s issues qualified as colorable: that trial counsel was ineffective for inducing a guilty plea
by promising the petitioner a 20-year sentence; that trial counsel was ineffective for failing to file
a motion to withdraw petitioner’s guilty plea; and that petitioner was pressured into pleading guilty
because of trial counsel’s errors and ill preparation.

       A colorable claim is one "that, if taken as true, in the light most favorable to the petitioner,
would entitle petitioner to relief under the Post-Conviction Procedure Act." Tenn. Sup. Ct. R. 28,
§ 2(H). Tennessee Code Annotated § 40-30-206 governs concepts of waiver and previous
determination:

               (g) A ground for relief is waived if the petitioner personally or through an
        attorney failed to present it for determination in any proceeding before a court of
        competent jurisdiction in which the ground could have been presented unless:



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               (1) The claim for relief is based upon a constitutional right not recognized
       as existing at the time of trial if either the federal or state constitution requires
       retroactive application of that right; or

               (2) The failure to present the ground was the result of state action in
       violation of the federal or state constitution.

               (h) A ground for relief is previously determined if a court of competent
       jurisdiction has ruled on the merits after a full and fair hearing. A full and fair
       hearing has occurred where the petitioner is afforded the opportunity to call witnesses
       and otherwise present evidence, regardless of whether the petitioner actually
       introduced any evidence.

Tenn. Code Ann. § 40-30-206(g) - (h).

       Subdivisions (d) and (e) of Tennessee Code Annotated § 40-30-206 also include the
following additional language:

       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) days of appointment.

        A trial court must accept the allegations in a petition for post-conviction relief as true and
may not consider other matters contained in the record in determining whether an evidentiary hearing
is warranted. Hayes v. State, 969 S.W.2d 943, 944 (Tenn. Crim. App. 1997). Waiver and previous
determination are proper grounds for denial of relief. If there is no factual explanation as to why a
claim has not been previously presented, the doctrine of waiver requires dismissal of the claim
without an evidentiary hearing. Blair v. State, 969 S.W.2d 423, 425-26 (Tenn. Crim. App. 1997).
A petitioner has had a full and fair hearing and is barred by the doctrine of previous determination
when he has had an opportunity to present proof and make argument on a claim. Carter v. State, 958
S.W.2d 620, 625 (Tenn. 1997). In Blair, this court ruled that "[a]lmost any ground for relief, except
ineffective assistance of counsel, could be raised during trial, and failure to do so will be deemed a
waiver." Blair, 969 S.W.2d at 425.

        The petitioner based his post-conviction claim almost entirely upon the alleged
ineffectiveness of his trial counsel. In our view, he should have been granted the opportunity to
prove his allegations. While unartfully drawn, the petition alleges that trial counsel induced the
petitioner into pleading guilty because he was assured that he would receive a 20-year sentence; that

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trial counsel failed to file a motion to withdraw his guilty plea; and that he was pressured into
pleading guilty because of trial counsel’s errors and ill preparation. While the record does
demonstrate that the petitioner, through substitute counsel, did, in fact, file a direct appeal, he is
entitled to the appointment of counsel and an evidentiary hearing on his claims of ineffective
assistance of counsel.

       The judgment of the trial court is reversed and the cause is remanded for the appointment of
counsel and an evidentiary hearing.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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