          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON            FILED
                           JULY 31, 1998 SESSION        September 11, 1998

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
MARIO BOWSER,                          )
                                       )    NO. 02C01-9803-CR-00093
      Appellant,                       )
                                       )    SHELBY COUNTY
VS.                                    )
                                       )    HON. CAROLYN WADE
STATE OF TENNESSEE,                    )    BLACKETT, JUDGE
                                       )
      Appellee.                        )    (Post-Conviction)



FOR THE APPELLANT:                          FOR THE APPELLEE:

MARIO BOWSER, Pro Se                        JOHN KNOX WALKUP
#269851                                     Attorney General and Reporter
Cold Creek Correctional Facility
P.O. Box 1000                               GEORGIA BLYTHE FELNER
Henning, TN 38041                           Assistant Attorney General
                                            Cordell Hull Building, 2nd Floor
                                            425 Fifth Avenue North
                                            Nashville, TN 37243-0493

                                            WILLIAM L. GIBBONS
                                            District Attorney General

                                            MICHAEL H. LEAVITT
                                            Assistant District Attorney General
                                            201 Poplar Avenue, Suite 301
                                            Memphis, TN 38103-1947




OPINION FILED:



REVERSED AND REMANDED



JOE G. RILEY,
JUDGE
                                     OPINION



       The petitioner, Mario Bowser, appeals the order of the Shelby County

Criminal Court denying his “Motion For Post-Conviction Relief Filing To Be Held In

Abeyance.” On appeal, he claims that the trial court abused its discretion in denying

the requested relief and maintains that counsel should be appointed with leave to

file an amended petition. We hold that the trial court erred in not appointing counsel

to file an amended petition.



                                          I



       On January 21, 1997, petitioner entered guilty pleas to two (2) counts of

aggravated assault, two (2) counts of attempted first degree murder and aggravated

perjury. No appeal was taken from petitioner’s convictions.

       On January 16, 1998, petitioner filed a “Motion For Post-Conviction Relief

Filing To Be Held In Abeyance,” requesting 180 days to file a post-conviction

petition “due to the fact he is trying to purchase records to use as evidence in post-

conviction proceeding that will show proof-in-facts as stipulated to were erroneous

and false upon entering his guilty plea.” Petitioner further alleged that his guilty

pleas in January 1997 were involuntary due to the fact that he received ineffective

assistance of counsel. The trial court found that there is no provision in Tennessee

law which would allow or mandate the tolling of the statue of limitations for post-

conviction filing, except under narrow, statutorily defined circumstances.

Accordingly, the trial court summarily denied petitioner’s motion.



                                          II



                                         A.

       In several prior cases, this Court has ruled upon similar issues. In Charles

Frank Griffin v. State, C.C.A. No. 1161, Hamilton County (Tenn. Crim. App. filed


                                          2
June 21, 1990, at Knoxville), the petitioner filed documents similar to the present

case entitled “Petition for Post Conviction Relief Filing to be Held in Abeyance” and

“Motion for Additional Time for Filing of Post-Conviction Relief.” However, in those

documents, the petitioner did not allege a constitutional violation and filed the

documents two (2) days after the expiration of the statute of limitations. This Court

upheld the trial court’s summary dismissal, basing its decision on the petitioner’s

failure to allege a constitutional violation and the untimely filing of the pleadings.

Charles Frank Griffin v. State, No. 1161, 1990 Tenn. Crim. App. LEXIS 422, at *1-2.

       In another case, the petitioner filed a “petition for post-conviction relief filing

to be held in abeyance” on the day prior to the expiration of the statute of limitations.

Billy Ferrell Waddell v. State, C.C.A. No. 03C01-9107-CR-197, Knox County (Tenn.

Crim. App. filed January 28, 1992, at Knoxville). In this document, the petitioner did

not directly allege any ground for relief but requested additional time to file his

petition. Approximately two weeks after the petitioner filed this document, he filed

a petition for post-conviction relief. This Court concluded that the first document

“was a sufficient petition to get the appellant’s petition before the court.” Billy Ferrell

Waddell v. State, No. 03C01-9107-CR-197, 1992 Tenn. Crim. App. LEXIS 60, at *1.

The Court noted that Tennessee law favors substance over form in post-conviction

matters. Id. The Court then found that the prior document was the petition for post-

conviction relief, and the second document was an amendment to the petition. Id.

Thus, the Court reversed the trial court’s decision denying relief and remanded for

an evidentiary hearing. Id.

       Recently, in Earl Crawford, Jr. v. State, C.C.A. No. 03C01-9610-CR-00385,

Bradley County (Tenn. Crim. App. filed July 29, 1997, at Knoxville), the petitioner

filed a similar pleading two (2) days prior to the expiration of the statute of

limitations. The document alleged no constitutional violations, but claimed that the

petitioner would subsequently file a post-conviction petition “as to the improper and

illegal methods utilized by the state to secure said sentences against petitioner.”

Earl Crawford, Jr. v. State, No. 03C01-9610-CR-00385, 1997 Tenn. Crim. App.

LEXIS 721, at *1. This Court affirmed the trial court’s dismissal of the pleading,



                                            3
holding that the petitioner alleged no facts showing a constitutional abridgement

and, therefore, did not allege a colorable claim upon which to base the petition. Id.

at *2.

                                            B.

         When a post-conviction petition alleges a colorable claim for relief, it should

not be dismissed upon technical grounds but should be heard on its merits. Allen

v. State, 854 S.W.2d 873, 875 (Tenn. 1993). This is especially true regarding pro

se petitions. Id. Indeed,

         a pro se petition under the Act is “held to less stringent standards than
         formal pleadings drafted by lawyers, and the test is whether it appears
         beyond doubt that the [petitioner] can prove no set of facts in support
         of his claim which would entitle him to relief.” Baxter v. Rose, 523
         S.W.2d 930, 939 (Tenn. 1975) (citation omitted). Furthermore, when
         a colorable claim is presented in a pro se petition, dismissal without
         appointment of counsel to draft a competent petition is rarely proper.
         Id. See also Mayes v. State, 671 S.W.2d 857, 858 (Tenn. Crim. App.
         1984). 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. T.C.A. §§ 40-30-104, 40-30-107,
         40-30-115. . . As the Court of Criminal Appeals stated in State v.
         Butler, 670 S.W.2d 241 (Tenn. Cr. App. 1984), “the assistance of
         counsel is necessary to aid both the petitioner and the courts in
         bringing this matter to a proper conclusion.” Id., at 243.

Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988).

                                            C.

         This Court recognizes that the present petition is controlled by the 1995 Post-

Conviction Procedure Act (Tenn. Code Ann. § 40-30-201, et. seq) and the above

cases were decided under the prior Act (Tenn. Code Ann. § 40-30-101, et. seq).

The current statute, Tenn. Code Ann. § 40-30-206(d), requires a petition for post-

conviction relief to be “clear and specific . . . including full disclosure of the factual

basis of [the] grounds. . . 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.” The trial

court may appoint counsel to file an amended petition. Tenn. Code Ann. § 40-30-

206(e).

         Although the petition in this case is styled as a motion and requests leave to

subsequently file a petition for post-conviction relief, we conclude this pro se


                                            4
pleading sufficiently alleges a colorable claim for relief under the 1995 Act. The

pleading specifically alleges an involuntary guilty plea and ineffective assistance of

counsel. The pleading states, in pertinent part:

              Petitioner contemplates filing a petition for post-conviction relief
       challenging the involuntariness of his guilty plea entered on 1-21-97
       wherein he was rendered ineffective assistance of counsel when court
       appointed counsel refused to investigate the facts of the case to be
       in an informed position to properly prepare an adequate defense to
       the case that would place the State’s evidence through an adversarial
       testing process in violation of the Sixth and Fourteenth Amendments
       to the United States Constitution and Article I, § 8 and 9 of the
       Tennessee Constitution. Petitioner contends that he was forced,
       pressured, and intimidated into entering his guilty plea.

                                           D.

       We acknowledge that the trial court was correct in its determination that the

Post-Conviction Procedure Act of 1995 does not authorize tolling the statute of

limitations upon request of a petitioner. However, favoring substance over form, we

do not construe the motion narrowly. The allegations in the pleading sufficiently

allege constitutional violations to warrant the appointment of counsel.              We,

therefore, remand this case to the trial court for appointment of counsel and the

filing of an amended petition.




                                                   JOE G. RILEY, JUDGE

CONCUR:




PAUL G. SUMMERS, JUDGE




DAVID G. HAYES, JUDGE




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