        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                February 2, 2010 Session

               DERRICK D. FUTCH v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                        No. 07-06992    Lee V. Coffee, Judge




                 No. W2009-01678-CCA-R3-PC - Filed April 9, 2010


The petitioner, Derrick D. Futch, pleaded guilty to aggravated sexual battery, a Class B
felony. The trial court sentenced him to 8 years, at 100 percent, in the Tennessee Department
of Correction. The petitioner filed a petition for post-conviction relief, which the post-
conviction court summarily dismissed. The petitioner appeals the summary dismissal of his
petition for post-conviction relief. After a review of the record, the parties’ briefs, and
applicable law, we reverse the judgment of the post-conviction court and remand for further
proceedings consistent with this opinion.

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

J.C. M CL IN, J., delivered the opinion of the court, in which JERRY L. S MITH and C AMILLE R.
M CM ULLEN, JJ., joined.

Derrick D. Futch, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Glenn Baitey, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                              Facts and Procedural History
       The Shelby County Grand Jury indicted the petitioner, Derrick D. Futch, for
aggravated sexual battery, a Class B felony. On June 2, 2008, the petitioner pleaded guilty
to the charge, and the trial court sentenced him to serve 8 years, at 100 percent, in the
Tennessee Department of Correction. The petitioner did not file a direct appeal; however,
on June 25, 2009, the petitioner filed a petition for post-conviction relief. In his pro se
petition for post-conviction relief, the petitioner alleged that (1) his right against self-
incrimination was violated; (2) his guilty plea was unlawful, involuntary, and unknowing;
(3) there was illegal evidence admitted during his trial; (4) there was an unconstitutional
failure to disclose favorable evidence; and (5) that his trial counsel was ineffective.

       The post-conviction court did not appoint an attorney or hold an evidentiary hearing
before dismissing the petition for post-conviction relief. In its order, the trial court stated
that:

       The Petition shall be dismissed without the necessity of an evidentiary hearing.

       ....

       The statute of limitations bars the petitioner’s petition [for] post-conviction
       relief pursuant to T.C.A. §40-30-102 in that one (1) year has passed since the
       date of the final court action on the petitioner’s case. . . . The expiration of the
       statute of limitations occurred on June 2, 2009.

       No court shall have jurisdiction to consider a petition filed after the expiration
       of the limitations period. There are no allowances for the tolling of the statute
       of limitations; however, due process may require the courts to disregard the
       statute of limitations. . . . The petitioner has not shown that he fits within an
       exception to the statute of limitations.

       Relief is available under the Post-Conviction Procedure Act of this State only
       when the conviction or sentence attacked is void or voidable because of the
       abridgment of a right guaranteed by the State or Federal Constitution. T.C.A.
       §40-30-103. . . . The petitioner has failed to state any legal grounds on which
       the Court can consider this request.

The petitioner timely appeals from this order dismissing his petition for post-conviction
relief.

                                            Analysis

       The petitioner contends that the trial court erred when it determined that the petition
for post-conviction relief was time barred and dismissed the petition without conducting an
evidentiary hearing. Specifically, the petitioner argues that the one-year statute of limitations
period did not expire until July 2, 2009, and that an evidentiary hearing was necessary to
determine whether due process considerations tolled the statute of limitations. The state

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agrees that the petitioner had until July 2, 2009, to file his petition for post-conviction relief.
Thus, the state concedes that the trial court incorrectly dismissed the petition for post-
conviction relief as untimely.

       The Tennessee Post-Conviction Procedure Act states that:

       a person in custody under a sentence of a court of this state must petition for
       post-conviction relief under this part within one (1) year of the date of the final
       action of the highest state appellate court to which an appeal is taken or, if no
       appeal is taken, within one (1) year of the date on which the judgment became
       final, or consideration of the petition shall be barred.

Tenn. Code Ann. §40-30-102(a). “A judgment of conviction entered upon a guilty plea
becomes final thirty days after acceptance of the plea agreement and imposition of sentence.”
State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003). The statute of limitations for post-
conviction relief does not begin to run until thirty days after a petitioner’s guilty plea. Allen
Oliver v. State, No. W2002-02085-CCA-R3-PC, 2003 WL 21338938, at *1 (Tenn. Crim.
App. at Jackson May 16, 2003).

        On June 2, 2008, the petitioner pleaded guilty to the charge of aggravated sexual
battery, and the court entered judgment that day. The statute of limitations for post-
conviction relief did not begin to run until July 2, 2008, thirty days later. Thus, the petitioner
had until July 2, 2009, to file his petition for post-conviction relief. The petitioner timely
filed his petition on June 25, 2009. Accordingly, we cannot agree with the post-conviction
court that the petitioner untimely filed his petition for post-conviction relief. We conclude
that the petitioner timely filed his petition for post-conviction relief, and he is entitled to an
evidentiary hearing on the merits of his post-conviction claim. We note that because we
conclude that the petitioner timely filed his petition for post-conviction relief, the issue of
whether due process considerations tolled the statute of limitations is moot.

        In its order, the trial court also stated that the petitioner failed to state any legal
grounds on which the court could consider his petition for post-conviction relief. Whether
a post-conviction court properly dismissed a petition for failure to state a claim is a question
of law and is therefore reviewed 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).Pursuant to the Post-Conviction
Procedure Act, a post-conviction petition must specify grounds for relief including disclosure
of the factual basis of those grounds. Tenn. Code Ann. § 40-30-106(d). Section 40-30-106
of the Post-Conviction Procedure Act provides in pertinent part:




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       (d) The petition 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. A bare allegation that a constitutional right has been violated
       and mere conclusions of law shall not be sufficient to warrant any further
       proceedings. Failure to state a factual basis for the grounds alleged shall result
       in immediate dismissal of the petition. 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.

Tenn. Code Ann. § 40-30-106(d).

        Looking to the Tennessee Supreme Court Rules, we note that once a petitioner files
a petition, a judge will review the petition and determine whether the petition states a
colorable claim. Tenn. Sup. Ct. R. 28, § 6(B)(2). A colorable claim is “a claim, in a petition
for post-conviction relief, that, if taken as true, in the light most favorable to the petitioner,
would entitle the petitioner to relief under the Post-Conviction Procedure Act.” Arnold v.
State, 143 S.W.3d 784, 786 (Tenn. 2004) (quoting Tenn. Sup. Ct. R. 28, § 2(H)).
“Post-conviction relief is available only when ‘the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.’” Id. (quoting Tenn. Code Ann. § 40-30-203). In
determining whether a colorable claim exists “pro se petitions are to be held to less stringent
standards than formal pleadings drafted by lawyers.” Allen v. State, 854 S.W.2d 873, 875
(Tenn. 1993) (citations omitted). “In the event a colorable claim is stated, the judge shall
enter a preliminary order which . . . appoints counsel, if petitioner is indigent.” Tenn. Sup.
Ct. R. 28, § 6(B)(3)(a). “In the event the court concludes after the preliminary review that
a colorable claim is not asserted by the petition, the court shall enter an order dismissing the
petition or an order requiring that the petition be amended.” Id. at § 6(B)(4)(a). However,
“[n]o pro se petition shall be dismissed for failure to follow the prescribed form until the
court has given petitioner a reasonable opportunity to amend the petition with the assistance
of counsel.” Id. at § 6(B)(4)(b) (emphasis added); see also Allen, 854 S.W.2d at 875.

       Initially, we note that several of the petitioner’s claims are improper for post-
conviction relief. However, viewed in the light most favorable to the petitioner, the petition
and the attached memorandum also allege claims that, if taken as true, would entitle the
petitioner to relief. The memorandum alleges that the petitioner took several medications
that affected his level of awareness of his surroundings. Because of this, the petitioner
argues that his confession of guilt through the plea agreement was unreliable. The petition
further asserts that the petitioner signed “a paper he did [not] know or understand the
contents and purpose of,” and he believed that the paper was to drop the charges. Further,

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the petition states that the guilty plea was unknowing, involuntary, and illegal because the
state unlawfully induced the petitioner, through misrepresentation, to sign the plea
agreement. Finally, the petition asserts that the petitioner received ineffective assistance of
counsel because trial counsel did not call several witnesses to testify for the petitioner. The
petition also states that trial counsel failed to preserve certified questions of law for appeal,
ask about the petitioner’s desire to appeal, and timely file an appeal. Accordingly, we
conclude that these allegations establish a colorable claim for relief that entitles the petitioner
to the appointment of counsel, amendment of the petition, and an evidentiary hearing.

                                          Conclusion

       Based upon the foregoing and the record as a whole, we reverse the trial court’s
dismissal of the petition and remand the case to the trial court for further proceedings
consistent with this opinion.




                                                 ___________________________________
                                                 J.C. McLIN, JUDGE




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