        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 26, 2010

               KENNETH J. CRADIC v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Sullivan County
                       No. C57,096     R. Jerry Beck, Judge


                  No. E2010-00140-CCA-R3-PC - Filed June 30, 2010


The Petitioner, Kenneth J. Cradic, appeals the summary dismissal of post-conviction relief
by the Sullivan County Criminal Court. The Petitioner was convicted of three counts of rape
of a child, a Class A felony, and three counts of incest, a Class C felony. He received a
sentence of twenty years for each rape of a child conviction and a sentence of four years for
each incest conviction. The trial court ordered that two of the twenty-year sentences for rape
of a child be served consecutively to one another but concurrently with the third conviction
and ordered that the three counts of incest be served consecutively to one another but
concurrently with the rape of a child convictions, for an effective sentence of forty years. On
appeal, the Petitioner contends that the post-conviction court erred in summarily dismissing
his petition for post-conviction relief without appointing counsel. Upon review, we reverse
the judgment summarily denying post-conviction relief and remand this case to the post-
conviction court for a full evidentiary hearing on the Petitioner’s claim of ineffective
assistance of counsel regarding the misapplication of the sentencing law.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Kenneth J. Cradic, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; H. Greeley Wells, Jr., District Attorney General; and James F. Goodwin,
Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION
      Background. This court summarized the facts regarding the Petitioner’s underlying
convictions on direct appeal:

              At trial, the law enforcement officers again testified that they began
      their investigation after the victim made statements implicating her father, the
      defendant, as a perpetrator of sexual assault against her. One of the events
      occurred at a motel in the Kingsport city limits and the other events occurred
      at the defendant’s home. The defendant provided a statement to the Kingsport
      Police detective in which he claimed he “only had sex with her once” and that
      he was “just trying to show her love.” He further told the detective that he had
      sex with his daughter twice at his home, once in the bathroom and once in the
      bedroom. The statement was reduced to writing, and the defendant signed it.

             The lieutenant with the Sullivan County Sheriff’s Office testified at trial
      that he became aware of the investigation regarding the defendant and the
      victim after a phone call from the Kingsport Police. He interviewed the
      defendant and prepared a written statement based on the defendant’s oral
      statement to him that included an admission that he had engaged in intercourse
      with the victim. The defendant told him that there was only one incident of
      sexual contact and that it occurred after the victim allegedly asked him to show
      her what sex felt like.

              The victim testified that the defendant was her father and that she was
      fifteen years old at the time of trial. She said that the defendant would touch
      her “kittycat” and “boobies” with his fingers, mouth, and his “lizard.” She
      testified that he touched her at his home and at a motel. She said that, during
      each incident, the defendant removed the victim’s clothes and that he put
      himself inside her until “white stuff came out from his lizard.” She described
      in detail the circumstances surrounding each assault and testified that she told
      the defendant that it hurt, but he did not stop. She also testified that he told her
      not to tell anyone what was happening and that she should keep it a secret.
      The victim said she could not keep it a secret because “it hurt so bad.”

             During cross-examination, the victim testified that she recalled telling
      her stepmother, the defendant’s wife, that she said the defendant did these
      things to her because she was afraid of the actual perpetrator. She also
      acknowledged that she told two other people that the defendant was not the
      person who touched her.




                                              -2-
              During redirect examination, the victim testified that her mother’s
       boyfriend also touched her but that he did so after the defendant had touched
       her. She said that her stepmother told the victim that she would buy her gifts
       if she would tell the authorities that the defendant did not do anything.

             The victim’s stepmother testified that the defendant usually signs
       paperwork without reading it. The victim’s cousin testified that the victim told
       him that her stepfather, not the defendant, “did it.”

              The defendant also testified that he does not read documents and that
       he did not admit to the offenses he was accused of by the victim. He said he
       merely repeated what the detective told him. He also denied admitting to the
       lieutenant that he had done anything to the victim. He testified that the
       lieutenant told him what he was being accused of and that he repeated the
       accusations back to the officer. The defendant said he signed and initialed the
       statement based on the notes the lieutenant made during their interview. The
       defendant denied having inappropriate sexual contact with his daughter.

State v. Kenneth J. Cradic, No. E2006-01975-CCA-R3-CD, 2008 WL 2937882, at *1-2
(Tenn. Crim. App., at Knoxville, July 31, 2008), perm. to appeal denied (Tenn. Jan. 20,
2009).

        The Petitioner was convicted of three counts of rape of a child and three counts of
incest and was sentenced to an effective sentence of forty years. See id. at *1. On direct
appeal, he argued that the evidence was insufficient to support his convictions and that the
trial court erred in joining his offenses for trial, in refusing to suppress his statements, and
in ordering consecutive sentencing. See id. On appeal, this court affirmed the judgments of
the trial court. See id.

        On September 25, 2009, the Petitioner filed a pro se petition for post-conviction relief,
claiming the following: (1) his conviction was based on the use of a coerced confession, (2)
his conviction was based on a violation of the privilege against self-incrimination, (3) he was
denied effective assistance of counsel, (4) newly discovered evidence existed, and (5) other
unspecified grounds. On the same date, the Petitioner also filed a Memorandum of Law in
Support of Petition for Post-Conviction Relief. This memorandum discussed two issues: (1)
trial counsel rendered ineffective assistance by failing to advise him that he could have been
sentenced under the pre-2005 sentencing act rather than the amended sentencing act, and (2)
the trial court erred in failing to grant him an evidentiary hearing on the issue of newly
discovered evidence before denying his motion for judgment of acquittal or motion for new



                                               -3-
trial. On October 6, 2009, the post-conviction court filed a written order summarily
dismissing the petition. In this order, the post-conviction court held:

             Most of the pro-se [sic] petition cites broad case law on legal
       conclusions.

              The pro-se [sic] petitioner in his form pleading merely circles

              (2) . . . coerced confession . . .

              (5) . . . privilege against self incrimination . . .

              (9) . . . Denial of effective assistance of counsel . . .

              (10) Newly discovered evidence.

              (12) Other grounds.

              The pleading is only conclusionary [sic] and sets out no factual basis.

               Further it should be noted that the confession issue was addressed by
       the trial court and on direct appeal.

              Finding: Pursuant to T.C.A. [§] 40-30-106(d), this pro-se [sic] petition
       for post-conviction relief is denied. “Failure to state a factual basis for the
       grounds alleged shall result in immediate dismissal of the petition.”

             WHEREFORE, the pro-se [sic] petition for post-conviction relief filed
       on September 25, 2009, is dismissed.

The Petitioner filed a timely notice of appeal on November 4, 2009.

                                         ANALYSIS

       The Petitioner contends that the post-conviction court erred in summarily dismissing
his petition for post-conviction relief without appointing counsel. In response, the State
argues that the court’s summary dismissal of post-conviction relief was proper. Specifically,
the State contends that the Petitioner failed to provide a factual basis for any of his claims,
the record does not support the Petitioner’s claims, and the Petitioner has failed to present
any colorable claims on appeal.

                                               -4-
         Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Post-Conviction Procedure Act states that a petition for post-
conviction relief “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.” Id. § 40-30-
106(d) (2006). Bare allegations that a constitutional right has been violated and mere
conclusions of law will not be sufficient to warrant further proceedings. See id.
Furthermore, the petitioner’s “[f]ailure to state a factual basis for the grounds alleged shall
result in immediate dismissal of the petition.” Id. “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.” Id.

        In the event that an amended petition is incomplete, the court shall determine whether
the petitioner is indigent and in need of counsel and may appoint counsel and enter a
preliminary order if necessary to secure the filing of a complete petition. See id. § 40-30-
106(e) (2006). “If the facts alleged, taken as true, fail to show that the petitioner is entitled
to relief or fail to show that the claims for relief have not been waived or previously
determined, the petition shall be dismissed.” Id. § 40-30-106(f) (2006). The order of
dismissal shall set forth the post-conviction court’s conclusions of law. See id. A post-
conviction court shall enter an order or a preliminary order within thirty (30) days of the
filing of the petition or amended petition. See id. § 40-30-106(a) (2006).

         In Burnett v. State, the Tennessee Supreme Court outlined the process that a post-
conviction court must follow in determining whether a petition for post-conviction relief
should be dismissed without a hearing. 92 S.W.3d 403, 406 (Tenn. 2002). First, the court
should review the petition to determine whether the petition asserts a colorable claim. Id.
A colorable claim is defined as “‘a claim that, if taken as true, in the light most favorable to
the petitioner, would entitle petitioner to relief under the Post-Conviction Procedure Act.’”
Id. (quoting Tenn. Sup. Ct. R. 28 § 2(H)). Accordingly, “[i]f the facts alleged, taken as true,
fail to show that the petitioner is entitled to relief, or in other words, fail to state a colorable
claim, the petition shall be dismissed.” Id. (citing T.C.A. § 40-30-206(f) (1997)).1 Second,
if the petition is not dismissed for failure to state a colorable claim, the post-conviction court
“may afford an indigent pro se petitioner the opportunity to have counsel appointed and to
amend the petition, if necessary.” Id. (citing T.C.A. § 40-30-207(b)(1) (1997)).2 The Burnett
court summarized the last step in the process:


       1
           Section 40-30-206 was renumbered to 40-30-106 in 2003.
       2
           Section 40-30-207 was renumbered to 40-30-107 in 2003.

                                                  -5-
               In the final stage of the process preceding an evidentiary hearing, the
       trial court reviews the entire record, including the petition, the State’s
       response, and any other files and records before it. If, on reviewing these
       documents, the court determines conclusively that the petitioner is not entitled
       to relief, the petition shall be dismissed [without an evidentiary hearing].

Id. (citing § 40-30-209(a) (1997)).3

        When determining whether a colorable claim has been presented, pro se petitions are
held to a less rigid standard than formal pleadings drafted by attorneys. Allen v. State, 854
S.W.2d 873, 875 (Tenn. 1993) (citing Gable v. State, 836 S.W.2d 558, 559-60 (Tenn. 1992)).
“If the availability of relief cannot be conclusively determined from a pro se petition and the
accompanying records, the petitioner must be given the aid of counsel.” Swanson v. State,
749 S.W.2d 731, 734 (Tenn. 1988) (citing T.C.A. §§ 40-30-104, -107, -115). However,
“[w]here a petition conclusively shows that the petitioner is entitled to no relief, it is properly
dismissed without the appointment of counsel and without an evidentiary hearing.” Givens
v. State, 702 S.W.2d 578, 580 (Tenn. Crim. App. 1985) (citing T.C.A. § 40-30-109), perm.
to appeal denied (Tenn. Sept. 30, 1985).

        We note that “[t]he ultimate success or failure of a petitioner’s claims is not a proper
basis for dismissing a post-conviction petition without conducting an evidentiary hearing.”
William Alexander Cocke Stuart v. State, No. M2003-01387-CCA-R3-PC, 2004 WL
948390, at *3 (Tenn. Crim. App., at Nashville, May 4, 2004) (citing Roosevelt Malone v.
State, No. E2002-00782-CCA-R3-PC, 2003 WL 21145488, at *2 (Tenn. Crim. App., at
Knoxville, May 16, 2003); T.C.A. § 40-30-106(b)-(d)). Furthermore, there is no requirement
that a petitioner prove his claims; he must only allege a colorable claim in his petition. See
Shazel v. State, 966 S.W.2d 414, 415-16 (Tenn. 1998) (“There obviously is an important
distinction between the right to seek relief in a post-conviction proceeding and the right to
have relief in a post-conviction proceeding.”). Typically, a petitioner would be required to
prove his claims by clear and convincing evidence at an evidentiary hearing. See William
Alexander Cocke Stuart, 2004 WL 948390, at * 3. However, the Petitioner in this case was
not afforded a hearing on any of his claims.

       Here, the Petitioner alleged the following grounds for relief in his post-conviction
petition: (1) his conviction was based on the use of a coerced confession, (2) his conviction
was based on a violation of the privilege against self-incrimination, (3) he was denied
effective assistance of counsel, (4) newly discovered evidence existed, and (5) other
unspecified grounds. However, of these five grounds, only two of these grounds were

       3
           Section 40-30-209 was renumbered to 40-30-109 in 2003.

                                                  -6-
supported by facts in the memorandum attached to the petition, namely: (1) trial counsel
rendered ineffective assistance by failing to advise him that he could have been sentenced
under the pre-2005 sentencing act rather than the amended sentencing act, and (2) the trial
court erred in failing to grant him an evidentiary hearing on the issue of newly discovered
evidence before denying his motion for judgment of acquittal or motion for new trial.
Accordingly, we cannot consider the grounds regarding a coerced confession, the violation
of the privilege against self-incrimination, and the other unspecified grounds in light of the
Petitioner’s failure to provide a “factual basis [for] those grounds.” T.C.A. § 40-30-106(d)
(2006). Additionally, these grounds appear to be either previously determined or waived.
See id. § 40-30-106(g), (h) (2006). However, in contrast to the post-conviction court’s
finding, we conclude that the Petitioner did provide a factual basis for the issues concerning
ineffective assistance of counsel and newly discovered evidence. We also conclude that, as
stated, these two claims are colorable grounds for post-conviction relief. Therefore, our
review is limited to these two issues.

        I. Ineffective Assistance of Counsel. The Petitioner contends that trial counsel
rendered ineffective assistance in violation of the Sixth Amendment by failing to advise him
that he could have been sentenced under the pre-2005 sentencing act rather than the amended
sentencing act. He also asserts that counsel allowed him to be sentenced under the amended
sentencing act without executing a waiver of ex post facto protections.

       The Compiler’s Notes to amended Tennessee Code Annotated section 40-35-210
(2006) identified the eligible defendants who could elect the pre-2005 sentencing act or the
amended sentencing act:

       Offenses committed prior to June 7, 2005, shall be governed by prior law,
       which shall apply in all respects. However, for defendants who are sentenced
       after June 7, 2005, for offenses committed on or after July 1, 1982, the
       defendant may elect to be sentenced under the provisions of the act by
       executing a waiver of such defendant’s ex post facto protections. Upon
       executing such a waiver, all provisions of the act shall apply to the defendant.

       Here, the record does not disclose the dates of all of the offenses in this case, although
the record does show that the Petitioner was sentenced for these offenses on January 17,
2006, which is after the aforementioned June 7, 2005 deadline. We note that the Petitioner
only included portions of the sentencing hearing transcript rather than the transcript in its
entirety. These sections of the transcript indicate that the Petitioner had the option of being
sentenced under the pre-2005 sentencing act or the amended sentencing act. They also show
an acknowledgment by defense counsel that the Petitioner was sentenced pursuant to the
amended sentencing act. Moreover, these sections of the transcript show that the State, the

                                               -7-
defense, and the trial court were confused about the proper application of the pre-2005
sentencing act and the amended sentencing act, given the recent changes in the law. No
waiver of ex post facto protections is included in the record, and the Petitioner maintains that
he never signed a waiver indicating his desire to be sentenced pursuant to the amended
sentencing act.

        The Petitioner claims that counsel rendered ineffective assistance in failing to advise
him that he could have been sentenced under the pre-2005 sentencing act rather than the
amended sentencing act. However, we note that “[t]here is no appellate review of the
sentence in a post-conviction or habeas corpus proceeding.” Id. § 40-35-401(a) (2006). In
other words, a sentencing issue is not a colorable claim in a post-conviction proceeding. See
Burnett, 92 S.W.3d at 406 (A colorable claim is defined as “‘a claim that, if taken as true, in
the light most favorable to the petitioner, would entitle petitioner to relief under the
Post-Conviction Procedure Act.’”). The law is clear that the Petitioner waived the underlying
issue regarding the misapplication of the sentencing law because he failed to raise it on direct
appeal. See T.C.A. § 40-30-106(g) (2006). However, the Petitioner’s claim of ineffective
assistance of counsel regarding the misapplication of the sentencing law was a proper issue
for the post-conviction court. Furthermore, the Petitioner did, in fact, articulate a factual
basis for the ineffective assistance of counsel claim in the memorandum attached to his
petition. Therefore, without making a finding regarding the merits of the Petitioner’s claim,
we conclude that it is proper to remand this case to the post-conviction court for an
evidentiary hearing on this issue.

       II. Newly Discovered Evidence. The Petitioner also contends that his Sixth
Amendment rights were violated when the trial court failed to grant him an evidentiary
hearing on the issue of newly discovered evidence before denying his motion for judgment
of acquittal or motion for new trial. This newly discovered evidence was in the form of a
notarized affidavit from the Petitioner’s wife, Pat Cradic, wherein she stated that the victim
had informed her that the Petitioner did not commit the alleged offenses and that Larry
Ritchie had threatened the victim and forced her to testify that the Petitioner committed the
alleged offenses. The record shows that this affidavit was attached to the Petitioner’s motion
for judgment of acquittal, and the issue regarding the newly discovered evidence was
submitted to the trial court at the motion hearing. However, the Petitioner only included the
last page of the motion for judgment of acquittal in the record on appeal. While the record
does include a complete copy of the affidavit signed by Pat Cradic, neither the transcript from
the motion for new trial hearing nor the order denying the motion are included in the record.

       The Petitioner acknowledges that he presented the affidavit and the issue of newly
discovered evidence to the trial court at the hearing on the motion for judgment of acquittal
or motion for new trial. He also acknowledges that this motion was denied by the trial court.

                                              -8-
Despite the Petitioner’s claim that he was not granted an evidentiary hearing on this newly
discovered evidence, we are unable to determine, because of the limited record, whether the
trial court actually conducted an evidentiary hearing on this issue prior to entering its order
denying the motion. Therefore, we are unable to determine whether this ground was
previously determined by the trial court. See id. § 40-30-106(h). However, it is clear that
although the Petitioner appealed his convictions and sentence, he failed to include the issue
regarding the newly discovered evidence in his direct appeal. See Kenneth J. Cradic, 2008
WL 2937882, at *1. Accordingly, this issue is waived. See T.C.A. § 40-30-106(g) (2006).

        Waiver notwithstanding, the Petitioner is not entitled to relief on this issue. In order
to obtain a new trial on the basis of newly discovered evidence, the defendant must show:
“(1) reasonable diligence in seeking the newly discovered evidence; (2) materiality of the
evidence; and (3) that the evidence will likely change the result of the trial.” State v.
Nichols, 877 S.W.2d 722, 737 (Tenn. 1994) (citing State v. Goswick, 656 S.W.2d 355,
358-60 (Tenn. 1983)). Typically, a petitioner will not be granted a new trial where the newly
discovered evidence merely “contradicts or attempts to impeach” a witness’s testimony at
trial. State v. Sheffield, 676 S.W.2d 542, 554 (Tenn. 1984). However, “if the impeaching
evidence is so crucial to the defendant’s guilt or innocence that its admission will probably
result in an acquittal, a new trial may be ordered.” State v. Singleton, 853 S.W.2d 490, 496
(Tenn. 1993) (citing State v. Rogers, 703 S.W.2d 166, 169 (Tenn. Crim. App. 1985), perm.
to appeal denied (Tenn. Sept. 30, 1985); Rosenthal v. State, 292 S.W.2d 1, 4-5 (Tenn. 1956),
cert. denied, 352 U.S. 934, 77 S. Ct. 222 (1956); Evans v. State, 557 S.W.2d 927, 938 (Tenn.
Crim. App. 1977), perm. to appeal denied (Tenn. Nov. 7, 1977)). The record indicates that
reasonable diligence in seeking the newly discovered evidence is not at issue here since the
affidavit was not obtained until after the jury trial. See Nichols, 877 S.W.2d at 737.
However, because the trial transcript was not included in the record, it is more difficult to
determine the materiality of the affidavit or to determine whether the affidavit would have
changed the result of the trial. See id. This court’s summary of the facts in this case on
direct appeal indicates that the victim’s credibility and Pat Cradic’s credibility were
challenged at trial. During cross-examination, the victim stated that she informed Pat Cradic
that she claimed the Petitioner committed these offenses because she was afraid of the actual
perpetrator. See Kenneth J. Cradic, 2008 WL 2937882, at *2. The victim also admitted
telling two other individuals that the Petitioner was not the one who committed these
offenses. Id. During re-direct examination, the victim stated that her step-mother, Pat
Cradic, offered to buy her gifts if she would tell the police that the Petitioner did not do
anything. Id. Additionally, the victim’s cousin testified that the victim told her that the
victim’s stepfather, not the Petitioner, committed the offenses. Id. Given this testimony at
trial as well as the Petitioner’s written admission of the offenses, we conclude that the
Petitioner failed to prove the materiality of the evidence or that the newly discovered
evidence would likely change the result of his trial. See Nichols, 877 S.W.2d at 737.

                                              -9-
Therefore, notwithstanding waiver, we conclude that the Petitioner is not entitled to relief on
this issue.

                                       CONCLUSION

       Upon review, we reverse the judgment summarily denying post-conviction relief and
remand this case to the post-conviction court for a full evidentiary hearing on the Petitioner’s
claim of ineffective assistance of counsel regarding the misapplication of the sentencing law.




                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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