                                                                                          05/21/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 15, 2020

        RODOLFO GUERRA-ROSALES v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Rutherford County
                      No. F-81563        Royce Taylor, Judge
                     ___________________________________

                           No. M2019-01375-CCA-R3-PC
                       ___________________________________

The Petitioner, Rodolfo Guerra-Rosales, pleaded guilty in General Sessions Court to
misdemeanor drug possession, and the court imposed a probation sentence of eleven
months and twenty-nine days. The Petitioner timely filed a post-conviction petition in
circuit court, alleging that his guilty plea in general sessions court was involuntary based
upon the ineffective assistance of counsel. The post-conviction court summarily
dismissed the petition, concluding that the claim was not cognizable and that the court
lacked jurisdiction to hear the petition. On appeal, the Petitioner asserts, and the State
concedes, that the post-conviction court had jurisdiction to consider the petition and that
his petition stated a colorable claim. After review, we reverse the post-conviction court’s
dismissal and remand for an evidentiary hearing on the Petitioner’s claim.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

David I. Komisar, Nashville, Tennessee, for the appellant, Rodolfo Guerra-Rosales.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Jennings H. Jones, District Attorney General, for the
appellee, State of Tennessee.

                                        OPINION

                          I.     Factual and Procedural History
       On June 29, 2018, the Petitioner pleaded guilty in the Rutherford County General
Sessions Court to misdemeanor drug possession. The general sessions court sentenced
the Petitioner to a probation sentence of eleven months and twenty-nine days. On June
26, 2019, the Petitioner timely filed a petition for post-conviction relief in the Circuit
Court for Rutherford County. Citing Padilla v. Kentucky, 559 U.S. 356 (2010), he
alleged that his plea was entered involuntarily without understanding the immigration
consequences of the conviction due to the ineffective assistance of counsel. On July 8,
2019, the post-conviction court issued an order finding that the Petitioner had failed to
state a colorable claim. The order then stated: “Further, this Court finds that it has no
jurisdiction to consider this petition because it was filed in the Circuit Court of
Rutherford County. The Petitioner pled guilty in the General Sessions Court of
Rutherford County.”

        The Petitioner timely filed this appeal, arguing that the post-conviction court erred
in its jurisdictional determination and, because the Petitioner stated a colorable claim, by
failing to conduct an evidentiary hearing. The State concedes that the Petitioner
presented a colorable claim and that the post-conviction court had jurisdiction to hold a
hearing on the claim. The State therefore argues that a remand for a hearing is the proper
remedy.

                                        I. Analysis

        On appeal, the Petitioner asks this court to remand for an evidentiary hearing on
his claim that Counsel failed to advise him of the immigration consequences of the guilty
plea. Both parties agree that the Petitioner has presented a colorable claim and that the
post-conviction court had jurisdiction to hear the petition.

       As a threshold issue, we will address the post-conviction court’s finding that it did
not have jurisdiction to hear the claim. Tennessee Code Annotated, section, 40-30-104(a)
provides, “[p]etitions challenging misdemeanor convictions not in a court of record shall
be filed in a court of record having criminal jurisdiction in the county in which the
conviction was obtained.” The Petitioner pleaded guilty in a Rutherford County general
sessions court and filed his petition in a court of record in Rutherford County; therefore,
we conclude that the post-conviction court has jurisdiction to hear the petition. Because
the post-conviction court had jurisdiction, we now consider whether the Petitioner
presented a colorable claim warranting an evidentiary hearing.

       This court reviews a post-conviction court’s summary dismissal of a post-
conviction proceeding de novo. See Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002).
Post-conviction relief is available to petitioners for any conviction or sentence that is
“void or voidable because of the abridgment of any right guaranteed by the Constitution
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of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. The post-
conviction court must determine whether the petition asserts a colorable claim. See Tenn.
Sup. Ct. R. 28 § 6(B)(2)-(3). A colorable claim is a claim “that, if taken as true, in the
light most favorable to the petitioner, would entitle the petitioner to relief.” Tenn. Sup.
Ct. R. 28 § 2(H). The Post-Conviction Procedure Act requires that petitions “must
contain a clear and specific statement of all grounds upon which relief is sought,
including full disclosure of the factual basis for those grounds.” T.C.A. § 40-30-106(d).
If the petition states a colorable claim, the post-conviction court must set an evidentiary
hearing. Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004) (citing T.C.A. § 40-30-
207(a), (b)(1) (1997) ).

       The Petitioner alleges that he received the ineffective assistance of counsel.
Accordingly, the Petitioner must allege facts that show: (1) that counsel’s performance
was deficient; and (2) that the deficient performance caused the defendant to be
prejudiced. See Arnold, 143 S.W.3d at 787 (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). The Petitioner stated a factual basis in his petition alleging that trial
counsel was deficient because he failed to advise the Petitioner of the immigration
consequences of the plea and maintained that he would not have accepted the guilty plea
but for trial counsel’s deficiencies.

       The post-conviction court found that the Petitioner failed to state a colorable
claim. The United States Supreme Court, in Padilla, held that the failure to warn a non-
citizen client that his guilty plea would result in deportation was deficient under the
Strickland test. Padilla, 559 U.S. 356. Therefore, the Petitioner’s petition asserts a
colorable claim requiring an evidentiary hearing.

                                     III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we reverse the
judgment of the post-conviction court and remand this case to the post-conviction court
for further proceedings consistent with this opinion.


                                             ____________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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