        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 12, 2014

            GREGORY D. VALENTINE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sumner County
                     No. 2014-CR-298    Dee David Gay, Judge



              No. M2014-00977-CCA-R3-PC          - Filed January 21, 2015


The Petitioner, Gregory D. Valentine, appeals the Sumner County Criminal Court’s summary
dismissal of his pro se petition for post-conviction relief as waived or previously determined.
The State responds that the post-conviction court properly dismissed the Petitioner’s claims
without a hearing. Upon review, we reverse and remand for further proceedings with regard
to the Petitioner’s ineffective assistance of counsel claim.

       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 N ORMA M CG EE
O GLE and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Gregory D. Valentine, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; L.
Ray Whitley, District Attorney General; and Thomas Dean, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                         OPINION

       The record reflects that on December 10, 2009, the Sumner County Grand Jury
indicted the Petitioner and five co-defendants for twenty counts of identity theft, six counts
of criminal simulation, one count of forgery, one count of theft of property valued at $10,000
or more but less than $60,000, and one count of money laundering. The Petitioner was also
individually indicted for one count of filing a false police report. See State v. Gregory D.
Valentine, No. M2012-02487-CCA-R3-CD, 2013 WL 4068607, at *1 (Tenn. Crim. App.
Aug. 13, 2013), perm. app. denied (Tenn. Dec. 12, 2013).
      On October 14, 2010, the Petitioner entered best interest pleas to the offenses as
charged. At the plea submission hearing, the State recited the factual basis for the
convictions as follows:

              The facts stem from events on the 30th of September, 2009[,] in
      Hendersonville, Tennessee. At that time, one of the Bank of America
      branches called Hendersonville Police Department, said they had in the bank
      at that moment a member of a fraud ring who had perpetrated identity theft.
      She was in the bank at that time. Ultimately, they reported that she was
      leaving the bank and fleeing the premises.

             Hendersonville Police Department Officers were actually driving by the
      bank at that time; they saw the woman fleeing the bank. Then they heard the
      call almost immediately. They turned around; they saw the woman get into a
      van containing, counting her, six individuals. It was a rental van out of
      California.

             The police began an investigation at that time to determine who she
      was. She said she was Gail Shapiro, which is the name on the identification
      that she had presented to the Bank of America. The other defendants, all the
      others in the van, supported that story that they had just picked her up. They
      didn’t know her.

             As the investigation continued, it was shown that these defendants had
      been together for days and had been traveling across the country. There are
      images in the Illinois, Chicagoland [sic] area, in Northern Indiana, of members
      of this group, specifically, Maurice Reed and Yolanda Carter, the two
      individuals who were taken for Federal prosecution going in multiple banks,
      perpetrating fraud, typically, in the form of account hijacking. Most of these
      actions occurred outside of [the] State of Tennessee and outside Sumner
      County.

             What we have is on the 30th, Maurice Reed went into a bank in
      Hendersonville at about 9:30 in the morning, started an account under the
      name of Greg Shapiro. He then went to the Madison branch at about 10:30,
      10:15 I think it was; Bank of America made a transfer from the real Greg
      Shapiro’s account to the bogus Greg Shapiro account he had just created,
      transferred $16,000, withdrew $7,500. Then [he returned to] the van, and he
      went back to Hendersonville later that day. They withdrew another $7,500
      from a different branch of Bank of America.

                                            -2-
             And then around 2:00 in the afternoon, with all six individuals in the
       van, Yolanda Carter went into the Bank of America, attempted to start an
       account under the name of Gail Shapiro. The bank got wise, called
       Hendersonville. I’ve already explained that part of the story.

              Based on that information and the numerous false identifications that
       were found in the van, were later found in the van, and the many scraps of
       paper in the van with bank account holder’s names, social security numbers,
       account number[s], date of birth, sometimes mother’s maiden name that sort
       of information that led to the charges before the Court.

              Criminal Simulation for the fake [identifications]. Identity Theft for the
       information on the many pieces of paper regarding the individual account
       holders. False Report for saying that the defendant who was later determined
       to be Yolanda Carter was Gail Shapiro. Theft over $10,000 relating to the
       $15,000 that was removed from Greg Shapiro’s bank account. Forgery for
       Maurice Reed signing the name of Gregory Shapiro on the bank
       documentation to open the false bank account that morning in Hendersonville,
       and identity theft for his use of Greg Shapiro’s name at that time, and one
       Identity Theft count for Yolanda Carter using Gail Shapiro’s name, that I’ve
       already discussed.

               That’s the facts related to this charge. There is a money laundering
       charge that is Money Laundering by Promotion of a Criminal Enterprise by
       Reinvesting Criminal Proceeds. So it’s under [Code section 39-14-]903(b) of
       the money laundering [statute]. That is for the deposit of $100 that went in to
       start the bogus account on that morning in the name of Greg Shapiro. I think
       that covers all the facts.

              Mr. Valentine according to the State’s information is the leader of this
       enterprise, at least the highest ranking person of the enterprise that was in the
       van; therefore, we have made a different offer to him than to the others.

Id. at *1-2. Pursuant to the plea agreement, the Petitioner received an effective sentence of
twelve years and eight months, with service of thirty-two months at seventy-five percent in
the county jail followed by service of ten years at thirty percent on state probation.

       Shortly thereafter, on October 19, 20, and 21, 2010, the Petitioner filed three pro se
motions to withdraw his pleas, which the post-conviction court denied without an evidentiary
hearing. Id. at *3. The Petitioner appealed, and this court reversed the trial court’s denial

                                              -3-
and remanded the case for a hearing. See State v. Gregory Darnell Valentine, No. M2010-
02356-CCA-R3-CD, 2012 WL 3263117 (Tenn. Crim. App. Aug. 10, 2012). This court
described the Petitioner’s three motions as follows:

       Considering all three pleadings together and in proper context, [the Petitioner]
       alleged that he is entitled to withdraw his guilty pleas (1) because he was
       coerced to enter the guilty pleas by his attorney using “my baby[’s] mother as
       a bargaining tool”; (2) because other persons identified only as “Johnson,”
       “Ross,” and “Young” were supposed to be released upon his guilty pleas, and
       they were not; and (3) because of somewhat vague allegations of a
       misunderstanding between [the Petitioner] and the State concerning the
       negotiated plea agreement.

Id. at *1-2.

       After conducting an evidentiary hearing on September 28, 2012, the trial court once
again denied the Petitioner’s motions to set aside his pleas. At the conclusion of the hearing
in which the Petitioner, co-defendant Takisha Johnson, and trial counsel testified, the trial
court stated in pertinent part:

       The Court went through [the] guilty plea proceedings with the [Petitioner], and
       at the time I was very comfortable and I’m still very comfortable that at the
       time the [Petitioner] entered his plea on October 14, 2010, that it was knowing,
       that it was voluntary, and there was no force, there was no coercion
       whatsoever.

               ....

              In referring to the testimony that I heard today, [the Petitioner]’s case
       was set for trial on November 1st. [The Petitioner] testified. He and Ms.
       Johnson are convicted felons. They both have numerous felony convictions
       on their record. I do not find the testimony of [the Petitioner] believable,
       credible or truthful. The testimony about an all white jury, [that I am] a mean
       judge, [that I] will give you 50 years was discredited by [trial counsel,] and I
       find that to be unbelievable.

              Kisses in the jail, I find that to be incredible and unbelievable. Many
       things the [Petitioner] states do not make any sense. He stated that . . . after
       he [submitted] his guilty plea, he went back there and did this petition because
       he was no longer in the presence of his abusers. That’s not like the character

                                             -4-
of this [Petitioner]. He’s one that stands up and he’ll continue to stand up and
he’s not intimidated by anything or anybody. That’s simply not true.

       The testimony of Takisha Johnson is not credible. She was on parole
in California when she came here. She was not on vacation when she came
through this jurisdiction. And she came here today all the way from California
at her own expense, own time, own money. I find her testimony not
believable.

       To the contrary, I [ac]credit the testimony of [trial counsel, who is]
experienced as a prosecutor, defense attorney, [who has represented] thousands
of defendants. He represented [the Petitioner] in this case. He met with [the
prosecutor,] and he met with [the Petitioner] many times, and I found that to
be true in dealing with the numerous attorneys[,] and the problems that
accompanied this case through Criminal Court.

        The testimony is clear that [the Petitioner] gave an initial impression
that he would take the offer after it was made. And it’s worth mentioning here
a 30-year offer coming down to 32 months, [effectively] two years [in
confinement], and ten years[’] probation is significant, absolutely significant,
along with the fact that there is a guarantee of no federal prosecution.

        Now, it’s not manifest injustice for [the Petitioner] to take this
incredible offer. It is a bit of reality, with the prosecutor, hard work of the
defense attorney to get to this point in a very difficult case. Although the
[Petitioner] later changed his mind about the plea and although he had an
opportunity to talk to his girlfriend, he agreed to take it.

       Now, [the Petitioner] is a grown man. He’s very assertive. He knows
what he wants, and he wanted a guarantee that this plea would not be used
against him if I did not accept the plea. He wanted a guarantee that there
would be no federal prosecution, and he got two years in jail with a certain
date to be released, and that’s what he wanted.

       ....

In looking at Rule 32 and determining manifest injustice, what I see here is a
complete absence of manifest injustice. What I see here is the criminal justice
system at work, at its best, preserving the constitutional rights of [the



                                      -5-
      Petitioner], giving him the best the Sixth Amendment has to offer, and [trial
      counsel] giving him opportunities to come into court, do motions and so forth.

              There is a desperate need in our criminal justice system for finality.
      How bad does it reflect on the system when somebody comes in immediately
      after they are under oath[,] and they say one thing, and then they go out of
      court and say, huh-uh, didn’t mean it, I want a do-over? We would be
      completely tied up for years.

              To the contrary, as I stated, this Court has bent over backwards to
      protect the constitutional rights of this [Petitioner], and they have been
      protected. There has been justice in this case to the advantage of the
      [Petitioner], great advantage to the [Petitioner]. I think it is absolutely absurd
      in referring to the nature and context of these allegations–it is, as [the
      prosecutor] stated, manipulation at its finest.

            That, Mr. Valentine, this Court will not accept and neither will the
      criminal justice system of Tennessee. This is respectfully denied.

Gregory D. Valentine, 2013 WL 4068607, at *9-11.

       In its opinion on direct appeal, this court affirmed the trial court’s denial and
specifically concluded:

              [The Petitioner]’s plea colloquy shows that he entered his best interest
      pleas voluntarily, that he was pleased with trial counsel’s representation, and
      that he understood the terms of the plea agreement and the rights he was
      waiving by entering his pleas. We conclude the transcript of the plea
      submission hearing is devoid of evidence that trial counsel coerced [the
      Petitioner] . . . into entering his best interest pleas. We also conclude that [the
      Petitioner] failed [to] show at the evidentiary hearing that his plea should be
      withdrawn to correct manifest injustice. In applying the aforementioned
      Blankenship factors, we note that by all accounts [the Petitioner] was a very
      intelligent individual. The State concluded that [the Petitioner] was the leader
      of an elaborate identity theft ring that had traveled across the country stealing
      money from individuals’ bank accounts. Trial counsel stated that [the
      Petitioner] was meticulous about the details of his plea agreement, even to the
      point of requiring that a specific date for his release from jail be included in his
      plea agreement and judgments of conviction. Moreover, the trial court
      observed that [the Petitioner] was “very assertive” regarding the terms of his

                                          -6-
       plea agreement and knew what he wanted when it came to his case. Regarding
       [the Petitioner]’s familiarity with criminal proceedings, the record shows that
       [the Petitioner] had an extensive criminal history, which included convictions
       as a juvenile for one count of murder in the first degree, three counts of
       attempted murder, and one count of accessory for murder, at least one felony
       conviction as a adult, and many misdemeanor convictions. [The Petitioner]’s
       extensive criminal history as well as his assertiveness regarding the terms of
       his plea agreement in the instant case indicates that he was extremely familiar
       with criminal proceedings at the time he entered his pleas. Regarding whether
       [the Petitioner] was represented by competent trial counsel and had the
       opportunity to confer with counsel regarding his options, the record shows that
       trial counsel properly advised him of his options at all stages of the
       proceedings and was able to procure an extremely favorable plea agreement
       for [the Petitioner]. Although [the Petitioner] previously had been offered
       thirty years in confinement, trial counsel was able to convince the State to
       agree to thirty-two months at seventy-five percent in the county jail followed
       by ten years on state probation. The proof at the evidentiary hearing shows
       that trial counsel met with [the Petitioner] several times, provided him with the
       relevant offer prior to the date of the plea submission hearing, and thoroughly
       discussed the offer with him. Regarding the extent of advice from counsel and
       the court regarding his charges, the record shows that both trial counsel and the
       court reviewed [the Petitioner]’s charges with him extensively and informed
       him of the sentences he would face if he proceeded to trial. Finally, regarding
       the reasons for [the Petitioner]’s decision to enter his pleas, the record
       indicates that [the Petitioner] entered his pleas to avoid a greater penalty than
       what he might have received at trial and to have his co-defendants, including
       Johnson, the mother of his child, released for time served.

Id. at *13. Thereafter, on December 12, 2013, the Tennessee Supreme Court denied the
Petitioner’s application for permission to appeal.

        On April 15, 2014, the Petitioner filed a timely pro se petition for post-conviction
relief, alleging that: (1) his guilty plea was unlawfully induced or involuntary, (2) his
conviction was based on the use of a coerced confession, and (3) he received ineffective
assistance of counsel. In support of the first two grounds for relief, the Petitioner asserted
that he was emotionally coerced by a visit from his co-defendant, Takisha Johnson, to accept
the plea agreement rather than to risk going to trial. In support of his ineffective assistance
of counsel claim, the Petitioner alleged “that counsel was ineffective due to his actions
regarding the plea negotiations and counsel’s performance in obtaining the petitioner’s
acceptance of said plea.” He further maintained that counsel allowed the coercion to occur

                                              -7-
and that the Petitioner was prejudiced because “he desired to proceed to trial and never
wanted to accept a plea from the state.”

       The post-conviction court summarily dismissed the petition with a written order filed
on May 1, 2014. In its summary of the procedural background and findings of fact, the court
noted that it had conducted a lengthy evidentiary hearing on September 28, 2012, regarding
the Petitioner’s motions to withdraw his guilty pleas. The post-conviction court further
stated that this court affirmed the trial court’s denial in its opinion on direct appeal.
Specifically, this court held that the Petitioner’s pleas were voluntarily entered and that he
was represented by competent counsel who “was able to procure an extremely favorable
agreement for [the Petitioner].” See Gregory D. Valentine, 2013 WL 4068607, at *13. In
its conclusions of law, the post-conviction court held:

              This Court finds that the allegation in the Petition that the conviction
       was based on a coerced confession has been waived. T.C.A. §40-30-106(g).
       Further, the allegations of an invalid guilty plea and ineffective assistance of
       counsel have been previously raised and evidence was presented in the
       evidentiary hearing conducted on September 28, 2012. Arguments were made,
       this Court made a ruling, an appeal was taken and the ruling was affirmed by
       the Court of Criminal Appeals. Therefore, those grounds have been
       adequately previously determined. T.C.A, §40-30-106(h).

              For these reasons, this Petition is DISMISSED.

The Petitioner filed a timely notice of appeal on May 15, 2014.

                                        ANALYSIS

       The Petitioner argues that the post-conviction court erred in summarily dismissing his
petition for post-conviction relief. He claims to have “maintained throughout every
proceeding that he was coerced into his plea” and that the post-conviction court erred in
holding that he had waived the issue that his convictions were based on a coerced confession.
The State responds that the court’s summary dismissal of post-conviction relief was proper
because the Petitioner’s claims were waived or previously determined. Upon review, we
reverse and remand this matter for appointment of counsel with respect to the Petitioner’s
claim of ineffective assistance of counsel.

       We review the propriety of a post-conviction court’s summary dismissal of a post-
conviction petition de novo. See Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002); Fields
v. State, 40 S.W.3d 450, 457 (Tenn. 2001). Post-conviction relief is only warranted when

                                             -8-
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. 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.” T.C.A. § 40-30-106(d). 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. Id. § 40-30-106(e).
“If the facts alleged in the petition, 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 post-conviction court shall dismiss the petition.” See id. § 40-30-106(f).
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).

         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.”1 Id. (citing T.C.A. § 40-30-206(f) (1997)). Second,
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.

                                                  -9-
               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).

        Initially, we agree with the post-conviction court that the Petitioner’s allegation of an
involuntary plea was previously determined on direct appeal and therefore may not be
grounds for post-conviction relief. See T.C.A. § 40-30-106(h). To the extent that the
Petitioner is attempting to relitigate the issues raised and rejected by this court on direct
appeal, the post-conviction court correctly dismissed the claims. Moreover, the Petitioner’s
claim that his convictions were based on a coerced confession is waived because the
Petitioner failed to raise this argument on direct appeal. See T.C.A. § 40-30-106(g).
However, we disagree that the Petitioner raised the claim of ineffective assistance of counsel
at the hearing on his motions to withdraw his pleas or that the issue was “previously
determined.” See, e.g., Fallon Lynn Tallent v. State, No. M2007-01336-CCA-R3-PC, 2008
WL 762486 (Tenn. Crim. App. March 24, 2008) (reversing summary dismissal and
recognizing that although the petitioner’s claims appear to be nothing more than a thinly
veiled attempt to relitigate issues previously determined on direct appeal, petitioner was
entitled to appointment of counsel because her claims were raised in the context of
ineffective assistance of counsel); see also Jeremy Crosby v. State, No.
M2007-00611-CCA-R3-PC, 2008 WL 1850805 (Tenn. Crim. App. Apr. 25, 2008) (affirming
the majority of post-conviction court’s order summarily dismissing petition but remanding
case for appointment of counsel to address petitioner’s ineffective assistance of counsel
claim).



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

                                                 -10-
        The Petitioner alleged in his post-conviction petition that trial counsel rendered
ineffective assistance with regard to the plea negotiations and in obtaining the Petitioner’s
acceptance of the plea. He asserted that trial counsel was aware that the Petitioner wished
to proceed to trial, but arranged a meeting with Takisha Johnson after the Petitioner refused
the State’s plea offer. He maintains that trial counsel failed to protect his interest for these
reasons. When taking the allegations in the petition as true and in the light most favorable
to the Petitioner, we conclude that the Petitioner presented a colorable claim for relief
sufficient to withstand summary dismissal of the ineffective assistance of counsel claim. To
the extent that the post-conviction court concluded that the Petitioner’s claim lacked merit,
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. May 4, 2004) (citing Roosevelt Malone v. State, No.
E2002-00782-CCA-R3-PC, 2003 WL 21145488, at *2 (Tenn. Crim. App. 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.”). It is at the evidentiary hearing that “a petitioner would be required to prove
his claims by clear and convincing evidence.” Id. Because the denial of effective assistance
of counsel is a constitutionally recognized ground for post-conviction relief, we conclude that
the post-conviction court prematurely dismissed the Petitioner’s claim. Accordingly, we
reverse the judgment of the post-conviction court summarily dismissing the petition with
regard to the Petitioner’s allegation of ineffective assistance of counsel. The case is
remanded for appointment of counsel and the opportunity to amend the petition for
post-conviction relief pursuant to Tennessee Code Annotated section 40-30-107. In all other
respects, the judgment of the post-conviction court is affirmed.

                                       CONCLUSION

       Upon a thorough review of the record, we reverse the judgment of the Sumner County
Criminal Court and remand the case for proceedings consistent with this opinion and with
the Post-Conviction Procedure Act.


                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




                                              -11-
