        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                       AUGUST SESSION, 1998           FILED
                                                  September 14, 1998
CHAD DOUGLAS POOLE,        )   C.C.A. NO. 02C01-9803-CC-00097
                           )                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
      Appe llant,          )
                           )
                           )   HARDEMAN COUNTY
VS.                        )
                           )   HON. JON KERRY BLACKWOOD
STATE OF TENNESSEE,        )   JUDGE
                           )
      Appellee.            )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF HARDEMAN COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

CHAD DOU GLAS POOLE            JOHN KNOX WALKUP
Pro Se                         Attorney General and Reporter
P.O. Box 1000
Henning, TN 38041-1000         DOUGLAS D. HIMES
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243

                               ELIZABETH RICE
                               District Attorney General

                               JERRY NORWOOD
                               Assistant District Attorney
                               302 Market Street
                               Somerville, TN 38068



OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
                                 OPINION

      The Defendant appeals as of right from the trial court’s summary dismissal

of his pro se petition for post-conviction re lief. The trial judge dismissed the

petition without appointing counsel an d without cond ucting an evide ntiary

hearing. We believe the Defe ndant w as entitled to an evide ntiary hea ring to give

him the opportun ity to prove his a llegations that he did not knowingly and

volunta rily enter his guilty plea and that he did not understand his right against

self-incrimination. We therefore reverse the judgment of the trial court and

remand this case for further proceedings.



      The Defendant was convicted, upon his pleas of guilty, of Class E felony

theft, two co unts o f burgla ry, esp ecially a ggrav ated b urglar y, and e spec ially

aggravated robbery. The Defendant appealed from the effective twenty-one year

sentence imposed by the trial c ourt, and this Cou rt modified the sente nce to

nineteen years. State v. Cha d Dou glas P oole, C.C.A. No. 02C01-9506-CC-

00178, Hardeman County (Tenn. Crim. App., Jackson, Jan. 31, 1996). Our

decision was affirmed b y the Te nness ee Sup reme C ourt. State v. Poo le, 945

S.W .2d 93 (Ten n. 1997).



      On February 6, 1998, the Defendant filed a petition for post-conviction

relief. The pro se petition alleged gen erally that his pleas we re not knowingly and

volunta rily entered and that he did not un derstand, nor did the judge prope rly

explain to him, his right against self-incrim ination . He als o alleg ed tha t his

sentence was illegal. On February 25, 1998, the trial judge entered an order



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dismissing the petition for failure to assert a colorable claim because the

transcript from the guilty plea proceeding indicated that the Defendant was

advised of his right against self-incrimination. The court further concluded that

the twenty-one year sentence as modified to nineteen years was not an illegal

sentence. The court also concluded that the petition did not state a claim for

which re lief “need b e grante d.”



       W e must respe ctfully disag ree with the co nclus ion of th e trial co urt that th is

petition does not state a colorable claim for post-conviction relief. Although not

artfully drawn, the petition alleges that the guilty pleas were entered without the

Defendant’s consent and without an understanding of the “plea nature and

consequ ences”; that the Defendant did not have knowledge of his “right against

self incrimination”; that the Defendant was not “fully and adequately informed of

his right not to b e com pelled to in criminate himself”; and that if the Defendant had

known of his right against self-incrimination, he would no t have pleaded guilty but

would have proceeded to trial. Although the petition does no t allege ineffective

assistance of counsel, it clearly alleges that his guilty plea was not knowingly and

voluntarily entered.



       The transcript of the Defe ndant’s g uilty plea proceeding is included in the

record.    The only exc hange between the trial judge and the Defendant

concerning the Defendant’s right not to be compelled to incriminate himself is as

follows:   ?[The Co urt]: And that you cou ld not be co mpelle d to incrim inate

yourself, un less you c hoose to do so? Both of yo u unde rstand th at?

[Both D efenda nts]: Yes, sir.”




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       The Post-Conviction Pro cedure Act provid es that if ?the fac ts alleg ed [in

the petition], taken as true, fail to show that the pe titioner is entitled to relief o r fail

to show that the claims for relief have n ot bee n waive d or pre viously determined,

the petition shall be dismiss ed.” Tenn. Code Ann. § 40-30-206(f). The Act also

provides that a ?bare allegation that a constitutional right has been violated and

mere conc lusions of law shall not be sufficient to warrant any further

proceedings .” Id. § 40-30 -206(d). In addition, ?[f]ailure to state a factual basis

for the grounds alleged shall result in immediate dismissal of the petition,” except

that if the petition was filed pro se, the judge may enter an order stating that the

petitioner must amend the petition within fifteen days or the petition will be

dismiss ed. Id.



       W e believe the Defendant should have been given an evidentiary hearing

so that he would h ave the opp ortunity to try to prove his allegation that his guilty

plea was n ot volun tarily, un dersta nding ly, and k nowin gly ente red. W e read ily

acknowledge that the Defendant may have a difficult time proving his allegations

by clear and co nvincin g evide nce, a s the A ct requ ires him to do. H owev er, his

post-conviction relief petition was filed in a timely fashion without the assistance

of counsel and the Act contemplates the filing of only one petition. Based on the

allegations of his petition, we believe the Post-Conviction Procedure Act gives

him the opportunity to be heard.



       The judgm ent of th e trial co urt dismiss ing the p ost-co nviction petition is

reversed and this case is remanded for further proceedings.




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                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JERRY L. SMITH, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




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