       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE            FILED
                       MARCH 1998 SESSION           March 25, 1998

                                                  Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk



JAMES BRYANT WESTON,       )
                           ) C.C.A. No. 03C01-9612-CR-00484
     Appellant,            )
                           ) Knox County
V.                         )
                           ) Honorable Mary Beth Leibowitz, Judge
STATE OF TENNESSEE,        )
                           ) (Post-Conviction)
     Appellee.             )




FOR THE APPELLANT:            FOR THE APPELLEE:

Thomas G. Slaughter           John Knox Walkup
Attorney at Law               Attorney General & Reporter
602 S. Gay Street
Suite 600                     Marvin E. Clements, Jr.
Knoxville, TN 37902           Assistant Attorney General
                              Criminal Justice Division
                              Cordell Hull Building, 2nd Floor
                              425 Fifth Avenue North
                              Nashville, TN 37243-0493

                              Randall E. Nichols
                              District Attorney General

                              Robert J. Jolley, Jr.
                              Assistant District Attorney General
                              City-County Building
                              Knoxville, TN 37902




OPINION FILED: ___________________


REVERSED AND REMANDED
FOR EVIDENTIARY HEARING


PAUL G. SUMMERS,
Judge
                                   OPINION



       James Bryant Weston, the appellant, filed a petition for post-conviction

relief in the Knox County Criminal Court. The court dismissed the petition

without an evidentiary hearing. The issue is whether the trial court erred in

dismissing the petition without holding an evidentiary hearing. We respectfully

reverse the judgment of the trial court.



       The appellant pled guilty to felony murder and especially aggravated

robbery. The court sentenced the appellant to life in prison plus 25 years with

the sentences to be served consecutively.



       The appellant filed a pro se petition for post-conviction relief. He alleged

ineffective assistance of counsel, double jeopardy, denial of a speedy trial,

“procedural default,” and involuntary and unknowing guilty pleas. After

preliminary consideration, the court found that the petition presented a colorable

claim. See T.C.A. § 40-30-206 (Supp. 1995). The court appointed counsel to

represent the appellant and to file an amended petition. The state was ordered

to file an answer, but we cannot find one in this record.



       In the amended petition, the appellant alleged that his guilty pleas were

involuntarily and unknowingly entered based on the ineffectiveness of his

counsel. The appellant alleged that his attorney erroneously advised the

appellant that he would be eligible for parole after serving 30% of a life sentence

based on 60 years. He alleges that he will not be eligible for parole until after he

has served 25 years of his life sentence. The appellant further alleges that, if he

had been informed correctly, he would not have pled guilty. Generally, a failure

to correctly inform the appellant about parole eligibility dates, without more,

would not be a basis for post-conviction relief. Wolley v. State, C.C.A. No.




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01C01-9311-CR-00402 (Tenn. Crim. App. at Nashville, Oct. 20, 1994).

However, it may be evidence that his pleas were involuntary and unknowing.



       The appellant alleges that his guilty pleas were involuntary because he

was unduly influenced by his attorney to accept the plea bargain agreement.

The appellant alleges that he told his attorney that he wanted to go to trial. He

alleges that his attorney said that there was no way to fight the case; and that if

the appellant did not take the plea, he would end up on death row. The

appellant persisted on going to trial. The appellant alleges that his attorney had

a death row inmate talk to the appellant about what life is like on death row. He

also alleges that his attorney brought an African-American attorney from

Nashville to talk to the appellant about how to stay off of death row and to

encourage the appellant to take the plea agreement.



       The amended petition incorporated the allegations set forth in the

appellant’s pro se petition. The appellant alleged that he was denied the right to

a speedy trial and that he was punished twice for the same crime in violation of

the double jeopardy clause.



       After examining the record, the transcript of the guilty plea hearing, and

the appellant’s statement that is attached as an exhibit to the transcript, the court

dismissed the petition for failure to state a colorable claim. See T.C.A. § 40-30-

209(a) (Supp. 1995). The court found that the appellant understood that he was

charged with first degree murder and that the state was seeking the death

penalty. The court further found that the trial court reviewed the plea agreement

with the appellant, and that he fully understood the terms of the agreement. The

court stated that there was no proof in the record, other than bare allegations,

that the appellant was pressured into entering into the plea agreement. The

court held that the appellant’s allegations of a denial of the right to a speedy trial




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and the incorrect information about his parole eligibility date were not grounds for

post-conviction relief.



       The trial court dismissed the petition pursuant to Tennessee Code

Annotated § 40-30-209(a) which provides that if, after reviewing the petition, the

response, files, and records, the court determines that the petitioner is entitled to

no relief, the court shall dismiss the petition. The appellant argues that the court

should have held a hearing because the court had previously ruled that his

petition stated a colorable claim. He argues that he has been denied the right to

present evidence to prove the allegations in his petition that state a claim.



       “In order to make a claim ‘colorable’ or actionable, the pro se petitioner

must assert a basic theory of relief. This court has defined a ‘colorable’ claim,

under the statutory law in existence prior to the 1995 Act, ‘as one that alleges

facts showing that the conviction resulted from an abridgment of a constitutional

right . . . .’” Waite v. State, 948 S.W.2d 283, 284-85 (Tenn. Crim. App. 1997)

(citations omitted). 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. See id. at 285. A petition that states a colorable claim for relief is to be

considered on its merits. Id.



       The appellant ostensibly has stated a colorable claim of whether his guilty

pleas were knowingly and voluntarily entered. If a guilty plea is not voluntary and

knowing, it has been entered in violation of a defendant’s constitutional rights

and is, therefore, voidable. Boykin v. Alabama, 395 U.S. 238 (1969). The

appellant should be allowed to present evidence to prove his allegations of

duress and coercion. It appears that the trial court considered the guilty plea

transcript, including the appellant’s incriminating statement to the police, as

conclusive evidence that the pleas were entered knowingly and voluntarily.

Indeed, the transcript is persuasive evidence. The incriminating statement given



                                          -4-
to police indicates that the appellant was a participant in a robbery during which

a vicitm was murdered. The appellant denied that he was the person who

murdered the victim, but he admitted that he was present during the robbery.

“[E]ven when it is unlikely that a petitioner could adequately establish the

violation of his constitutional rights, the new post-conviction statute contemplates

and due process requires that he at least be afforded the opportunity.” Waite,

948 S.W.2d at 285.



       The judgment of the trial court is respectfully reversed. This case is

remanded for an evidentiary hearing on the merits of the appellant’s post-

conviction petition. Such reversal of the judgment is in no way a substantive

determination of the merits of the allegations.




                                               __________________________
                                               PAUL G. SUMMERS, Judge



                                         -5-
CONCUR:




______________________________
JOHN H. PEAY, Judge




______________________________
CORNELIA A. CLARK, Special Judge




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