        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                May 10, 2016 Session

           STATE OF TENNESSEE v. JOHN PIERCE LANKFORD

                Appeal from the Criminal Court for Sumner County
         Nos. 2014-CR-231, 21-2013, 762-2012 Jane W. Wheatcraft, Judge
                    ___________________________________

                No. M2015-00676-CCA-R3-CD – Filed June 14, 2016
                     ___________________________________


Appellant, John Pierce Lankford, appeals the trial court’s summary denial of his petition
for post-conviction relief and the execution of his original sentence following a
revocation of his suspended sentence on Community Corrections. Because Appellant
was not appointed an attorney and afforded an opportunity to amend his petition for post-
conviction relief, we reverse the summary denial of his petition and remand for further
proceedings. However, because the trial court did not abuse its discretion by ordering
Appellant to serve his original sentence in confinement, we affirm the judgment of the
trial court in this regard.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
                     Part, Reversed in Part, and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Manuel B. Russ (on appeal), Nashville, Tennessee, and John Pellegrin (at hearing),
Gallatin, Tennessee, for the appellant, John Pierce Lankford.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General, Senior Counsel; L. Ray Whitley, District Attorney General; and Tara
Wyllie, Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       On October 4, 2012, Appellant was indicted with one count of making a false
report, three counts of aggravated assault, and one count of public intoxication in case
number 762-2012. On January 10, 2013, Appellant was indicted with two counts of
aggravated assault, one count of resisting arrest, one count of public intoxication, and one
count of felon in possession of a firearm in case number 21-2013.

       On August 9, 2013, Appellant resolved both of these cases through a plea
agreement. In case number 762-2012, he pled guilty to three counts of simple assault and
was sentenced to eleven months and twenty-nine days for each offense with the sentences
to run concurrently and suspended to time served. He also pled guilty in case number 21-
2013 to one count of aggravated assault with a six-year sentence, one year to be
supervised on Community Corrections and the balance on unsupervised probation. The
aggravated assault sentence was consecutive to the simple assault sentences for an
effective sentence of six years, eleven months and twenty-nine days. The plea agreement
contained the special conditions that Appellant could not consume or possess alcohol
while on Community Corrections supervision and that he was required to submit to drug
screening.1

        Less than one month later, on September 6, 2013, a violation of Community
Corrections warrant was issued by the trial court. The warrant alleged that Appellant
possessed alcohol and refused to submit to alcohol screening. According to the warrant,
Appellant was arrested three days later on September 9, 2013. After a hearing on
October 20, 2014,2 the trial court revoked Appellant’s Community Corrections and
ordered him to serve the six-year sentenced imposed in case number 21-2013 at 30% and
further determined that Appellant’s eleven-month and twenty-nine-day sentence in case
number 762-2012 had expired. He was to receive jail credits from September 9, 2013
until the day of the revocation hearing.

       During the year the violation of Community Corrections violation warrant was
pending, Appellant filed a pro se petition for post-conviction relief on March 19, 2014.
Appellant alleged his actual innocence in both cases and also alleged that he was “the
victim of malicious prosecution and prosecut[ori]al misconduct where coercion and
deception [were] used to secure a plea taken under duress.” On March 28, 2014, under
case number 2014-CR-231, the post-conviction court entered a “preliminary order,”
summarily denying the petition, without appointing counsel. The preliminary order
indicates that the post-conviction court had reviewed the transcript of the plea
proceedings, which indicated that Appellant understood the rights he was giving up and
entered the plea “of his own free will.”

        1
          The record does not contain separate judgment forms for the charges that were dismissed
pursuant to the plea agreement. Upon remand, the trial court should enter separate judgments for them.
See State v. Marquize Berry, No. W2014-00785-SC-R11-CD, at *4 (Tenn. Nov. 16, 2015) (order).
        2
         The transcript of the October 20, 2014 hearing indicates that Appellant “pled guilty to violating
terms of his probation on April 4.” It further indicates he was allowed to be furloughed to Cumberland
Heights for unspecified treatment. Appellant was, however, unable to get into a treatment program.
                                                    -2-
       Appellant did not file a timely notice of appeal from either the revocation of
Community Corrections or the dismissal of his petition for post-conviction relief.
However, upon request, this Court entered an order on May 28, 2015, granting
permission for a late-filed notice of appeal for both matters. Appellant filed a pro se
notice of appeal on June 5, 2015, and appointed counsel filed an appellate brief with this
Court.

       Appellant raises the following issues: (1) whether the trial court erred by
summarily denying his post-conviction petition without appointing counsel or holding an
evidentiary hearing; and (2) whether the trial court abused its discretion by executing the
original sentence after finding that Appellant violated the terms of Community
Corrections.

                                           Analysis

         An appellate court’s review of a summary denial of a petition for post-conviction
relief is de novo. Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004) (citing Burnett v.
State, 92 S.W.3d 403, 406 (Tenn. 2002)). Post-conviction relief is available for any
conviction or sentence that is “void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
T.C.A. § 40-30-103. The first thing that a post-conviction court must do upon receiving a
petition is to conduct a preliminary review to “determine whether the petition states a
colorable claim.” Tenn. Sup. Ct. R. 28, § 6(B)(2). A colorable claim is one “that, if
taken as true, in the light most favorable to the petitioner, would entitle petitioner to relief
. . . .” Id. § 2. If a petition fails to state a colorable claim, the post-conviction court must
dismiss the petition. Id. §§ 5(F)(5), 6(B)(4)(a); see also T.C.A. § 40-30-106(d) (where
the factual allegations within a petition, “taken as true, fail to show that the petitioner is
entitled to relief . . . , the petition shall be dismissed”). However, if the post-conviction
court determines that the petition of an indigent pro se petitioner states a colorable claim
for relief, the petitioner is then entitled to the assistance of appointed counsel. Tenn. Sup.
Ct. R. 28, § 6(B)(3)(a); see also T.C.A. § 40-30-107.

       In this case, the post-conviction court’s preliminary order provided:

       The petition shall be dismissed for failure to assert a colorable claim based
       on the following findings of law and fact:

              The Petitioner entered knowing and voluntary pleas of guilty to the 4
       counts of the indictment. His counsel announced to the Court that while
       there were some factual discrepancies that the Defendant had with the
       [S]tate’s recitation, that counsel had gone over all of his constitutional
                                              -3-
       rights with him and he wanted to enter these pleas. The Court finds from a
       review of the transcript of the proceedings that the Defendant knew he was
       giving up his right to a jury trial, because the case had been previously set
       for a jury trial. Likewise, he understood he was giving up his rights to
       cross-examine the state’s witnesses. He acknowledged that he had read
       “very thoroughly” the plea sheet, gone over its contents with counsel and
       was entering the plea of his own free will and not under any duress. Lastly,
       the Defendant expressed that he had “a very fine lawyer.”

       From the foregoing, it is apparent that the trial court did not dismiss Appellant’s
petition for failure to state a colorable claim. Instead, the trial court denied post-
conviction relief on the merits of the petition, concluding that Appellant could not prove
his claim that his guilty pleas were coerced or unintelligently and unknowingly made.
Such a determination necessarily rests upon the implicit finding that the petition did in
fact assert a colorable claim. As explained above, if the petition states a colorable claim,
a pro se petitioner is entitled to the assistance of counsel and an opportunity to amend his
petition. Neither of these was afforded to Appellant. This Court has emphasized, on
numerous occasions, that a post-conviction court cannot make factual determinations or
determine the ultimate question when making a preliminary determination as to whether a
post-conviction petition states a colorable claim. See John C. Crim v. State, No. M2014-
00948-CCA-R3-PC, 2015 WL 1726556, at *3-4 (Tenn. Crim. App. Apr. 13, 2015) (citing
cases), no perm. app. filed. Because Appellant’s petition for post-conviction relief was
denied without the appointment of counsel and an opportunity to amend his petition, we
must reverse the decision of the trial court and remand this case for further post-
conviction proceedings.

        Appellant also argues that the trial court abused its discretion by ordering his
suspended sentence into effect rather than giving Appellant another alternative sentence
in the form of split confinement. Appellant does not contest the trial court’s finding that
he violated Community Corrections, as he pled guilty to the violation.

        A trial court’s decisions involving revocation of Community Corrections and
resentencing are reviewed for abuse of discretion. State v. Kendrick, 178 S.W.3d 734,
738 (Tenn. Crim. App. 2005). When a trial court finds that a defendant serving a
suspended sentence has committed a technical violation of the terms of probation, the
trial court has discretion to “[c]ause the defendant to commence the execution of the
judgment as originally entered . . . [or] [r]esentence the defendant for the remainder of the
unexpired term to any community based alternative to incarceration . . . .” T.C.A. § 40-
35-311(e)(1)(A)-(B). In this case, after careful consideration, the trial court chose the
former option, and it was within its authority to do so. Appellant is not entitled to relief
on this basis.

                                             -4-
                                          Conclusion

       Based on the foregoing, the trial court’s summary denial of the petition for post-
conviction relief is reversed and remanded. However, the trial court’s execution of the
original judgment following the Community Corrections violation is affirmed.




                                                 _________________________________
                                                 TIMOTHY L. EASTER, JUDGE




                                           -5-
