                                                                                                      05/16/2017




            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                              Assigned on Briefs January 5, 2017

                  SHEILA MITCHELL v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Gibson County
                          No. 9563     Clayburn Peeples, Judge
                        ___________________________________

                              No. W2016-01356-CCA-R3-PC
                          ___________________________________

Pro se petitioner Sheila Mitchell appeals from the post-conviction court’s summary
denial of relief. In this appeal, the State concedes, and we agree, that the petitioner stated
a colorable claim in her petition. Accordingly, we reverse the judgment of the post-
conviction court and remand for appointment of counsel.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Sheila Mitchell, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Garry G. Brown, District Attorney General; and Jerald M. Campbell,
Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

       The petitioner apparently pleaded guilty to drug-related offenses and received a
twelve-year sentence on January 28, 2015.1 On January 12, 2016, she filed a pro se
petition seeking post-conviction relief and the appointment of counsel. In her pro se
memorandum supporting the petition, she alleged the following grounds for relief: (1)
that her conviction was based on an unlawfully induced guilty plea or guilty plea
involuntarily entered without understanding of the nature and consequences of the plea;
(2) that she was coerced into accepting the terms of the guilty plea because trial counsel

        1
          Because the record does not contain the judgment of conviction or any other reference from
which this court can discern the petitioner’s actual case, we glean all of our information in this matter
from the petitioner’s pro se petition and her brief.
told her that she would be convicted and receive a 42-year sentence; (3) that she was
under the influence and does not remember signing the “waiver” to have her attorney
present; and (4) ineffective assistance of counsel based on trial counsel’s failure to
adequately advise her regarding the plea agreement, provide discovery, file any pre-trial
motions, subpoena witnesses, or raise certain issues on appeal.

       On March 21, 2016, the State filed its response, denying the factual allegations
raised in the petition. On March 30, 2016, the petitioner filed a pro se reply to the State’s
response. On May 19, 2016, the post-conviction court denied the petitioner’s pro se
petition for post-conviction relief by order. The post-conviction court’s order began by
noting, “This matter came to be heard on [May 9, 2016][.]” The order further stated,
“[a]fter considering the petition, the subsequent pleadings thereto, and the entire record in
this cause, the Court is of the opinion that the Petition for Post-conviction relief should be
denied.” The petitioner then filed a notice of appeal.

       This court has previously held that petitions for post-conviction relief presenting a
colorable claim for relief under the Post-Conviction Procedure Act “should not be
dismissed on technical grounds but should be considered on their merits.” Allen v. State,
854 S.W.2d 873, 875 (Tenn. 1993) (internal citations and quotations omitted). In
deciding whether a colorable claim is presented, pro se petitions are to be held to less
stringent standards than formal pleadings drafted by lawyers. Id. Tennessee Code
Annotated section 40-30-107 outlines the procedure to be followed regarding pro se
petitioners and provides, in pertinent part:

       No petition for relief shall be dismissed for failure to follow the prescribed
       form or procedure until after the judge has given the petitioner reasonable
       opportunity, with the aid of counsel, to file an amended petition.

After counsel has been appointed the petition will be amended, if necessary, so that when
the petition is heard all grounds on which the petitioner may rely will be before the court.
Allen, 854 S.W.2d at 875. When a colorable claim is presented in a pro se petition,
dismissal without appointment of counsel to draft a competent petition is rarely proper.
Swanson v. State, 749 S.W.2d 731,734 (Tenn. 1988). 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. Id.

       We acknowledge, as did the State, that the record in this appeal is woefully
inadequate. It does not contain the petitioner’s judgment of conviction, a transcript from
the guilty plea hearing, an order appointing post-conviction counsel, or a transcript
showing that a hearing was conducted by the post-conviction court on the issues
presented in this matter. Nevertheless, we agree with the State, and conclude that the
                                            -2-
petitioner raised a colorable claim for relief in her petition. Therefore, at a minimum, she
was entitled to the appointment of post-conviction counsel to assist her in filing an
amended petition for post-conviction relief, which does not appear to have occurred in
this record. We therefore remand this matter to the post-conviction court for appointment
of counsel and any other proceedings consistent with the aforementioned authority.

                                        CONCLUSION

       Based on the above reasoning and analysis, the judgment of the post-conviction
court is reversed. We remand this matter to the post-conviction court for the appointment
of counsel and any other proceedings consistent with this opinion.


                                                 ________________________________
                                                 CAMILLE R. McMULLEN, JUDGE




                                           -3-
