         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 18, 2007

                   JEREMY CROSBY v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                           No. 2003-C-1601    Steve Dozier, Judge



                     No. M2007-00611-CCA-R3-PC - Filed April 25, 2008



The petitioner, Jeremy Crosby, appeals the Davidson County Criminal Court’s order dismissing his
pro se petition for post-conviction relief without a hearing. The state contends that the trial court
properly dismissed most of the petitioner’s claims but admits that the post-conviction court should
have appointed counsel to address the petitioner’s claim of ineffective assistance of appellate
counsel. After reviewing the record, we affirm the majority of the post-conviction court’s order but
remand the case to the post-conviction court for the appointment of counsel and additional
proceedings regarding the petitioner’s claim of ineffective assistance of appellate counsel.

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


D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and ALAN E. GLENN , JJ., joined.

Jeremy Crosby, Only, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Pamela S. Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

         Following a May 2004 jury trial in Davidson County Criminal Court, the petitioner, Jeremy
Crosby was convicted of one count of possession of over 0.5 gram of a controlled substance
(cocaine) with intent to sell or deliver and one count of unlawful use of drug paraphernalia. The
defendant received an effective sentence of eighteen years as a Range I, standard offender, in the
Department of Correction. On direct appeal, the petitioner, represented by new counsel, alleged that
the trial court erred in failing to grant his motion to suppress, and that he received the ineffective
assistance of counsel at trial. This court affirmed the petitioner’s sentence on appeal. State v.
Jeremy S. Crosby, No. M2005-00548-CCA-R3-CD, 2007 WL 189384, at *1 (Tenn. Crim. App. Jan.
26, 2007), no app. filed.

         On February 28, 2007, the petitioner filed a pro se petition for post-conviction relief. In the
petition, the petitioner alleged: (1) the evidence was insufficient to convict him of intent to sell; (2)
the state failed to prove the element of possession; (3) the evidence produced at trial was based on
an unconstitutional search and seizure; (4) trial counsel was ineffective; (5), (6), (7) the affidavit was
invalid in that it did not provide probable cause to arrest, was inconsistent and contradicted trial
testimony; (8) the state withheld evidence regarding the name of a witness; (9) the state engaged in
prosecutorial misconduct by knowingly using false evidence and conflicting testimony at the
suppression hearing and in the affidavit; (10) improper chain of custody; (11) the evidence was based
on an unlawful arrest because the motel clerk was an agent for the state; (12) the trial court used false
information to determine his sentence; (13), (14) the trial court denied the defendant’s request to
produce the name of the motel clerk and the opportunity to test evidence; (15) the trial court erred
in not permitting him to interview the motel clerk; (16) evidence was allegedly destroyed in the
motel room; (17) trial counsel was ineffective at the sentencing hearing; (18), (19), (20) the trial
court abused its discretion by failing to rule on issues arising from his motion for new trial and
motion to dismiss and by dismissing a juror after the trial began; (21) his sentence is excessive; (22)
the trial court denied the petitioner a right to a fair trial in that he was not permitted to fire his
attorney; and (23) appellate counsel was ineffective for failing to obtain a full transcript and raise
all relevant issues.

        On March 7, 2007, the post-conviction court dismissed the petition without a hearing. The
post-conviction court held that issues (1)-(4), (11), (17), and (22) were previously addressed on direct
appeal and therefore previously determined. The court held that all other issues other than the
ineffective assistance of appellate counsel were improper grounds for post-conviction relief and were
waived because they were being raised for the first time on post-conviction. Regarding the
ineffective assistance of appellate counsel claim, the post-conviction court concluded:

        Specifically the petitioner alleges the [appellate counsel] should have raised the
        Court’s failure to rule on inconsistent statements made by state’s witnesses during
        his motion for a new trial. The Court finds the petitioner’s claims would not have
        had merit and therefore counsel was not deficient for failing to raise the issue on
        appeal. Therefore, the argument does not have merit under the post-conviction
        procedure act and shall be dismissed.

It is from this order that the petitioner appeals.

                                              ANALYSIS

        Initially, we conclude that the post-conviction court properly dismissed the majority of the
petitioner’s claims. We agree with the post-conviction court that the issues it identified as being


                                                     -2-
previously determined, with the exception of sufficiency of evidence and failure to prove an essential
element of the offense, were addressed on direct appeal and therefore may not be grounds for post-
conviction relief. See Tenn. Code Ann. § 40-30-106(h) (2006). The sufficiency and proof of
essential element issues, along with all remaining issues other than ineffective assistance of appellate
counsel, are waived because they were not addressed on direct appeal, see id. § (g), and because they
are not issues that would render the petitioner’s “conviction or sentence . . . void or voidable because
of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States,” Tenn. Code Ann. § 40-30-130 (2006), as is required to procure relief under the
Post-Conviction Procedure Act. Therefore, the only issue raised by the petitioner that we will
address is whether the trial court properly summarily dismissed the petitioner’s ineffective assistance
of appellate counsel claim for failure to state a colorable claim.

         Whether a trial court properly dismissed a petition for post-conviction relief for failure to
state a claim for relief is a question of law. See Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002).
Thus, an appellate court’s review of the trial court's dismissal of the petition is de novo. See id.;
Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

         The Post-Conviction Procedure Act states that a petition for post-conviction relief must
specify the grounds for relief and set forth facts to establish a colorable claim for relief. See Tenn.
Code Ann. § 40-30-106(d) (2006). “A colorable claim is a claim, in a petition for post-conviction
relief, that, if taken as true, in the light most favorable to petitioner, would entitle petitioner to relief
under the Post-Conviction Procedure Act.” Tenn. Sup. Ct. R. 28, § 2(H). When the facts, taken as
true, fail to demonstrate that the petitioner is entitled to relief, then the trial court may dismiss the
petition. Tenn. Code Ann. § 40-30-106(f). When the trial court concludes that a petition does not
present a “colorable claim,” it may summarily dismiss the petition without appointing counsel. See
Blair v. State, 969 S.W.2d 423, 424 (Tenn. Crim. App. 1997); see also Pewitt v. State, 1 S.W.3d 674,
674 (Tenn. Crim. App. 1999) (holding that a petition alleging “no particulars” of ineffective
assistance of counsel did not state a “colorable claim”). If the petition does state a colorable claim,
the court shall enter a preliminary order. See Tenn. Code Ann. § 40-30-107(a). The order shall
appoint counsel for the petitioner if the petitioner is indigent and requests counsel. Id. § 40-30-
107(b)(1). The order shall also direct the petitioner or the petitioner’s counsel to file an amended
petition, or a written notice that no amendment will be filed, within thirty days of the entry of the
order. Id. § 40-30-107(b)(2).

        In this case, the state concedes that the petitioner’s ineffective assistance of appellate counsel
claim was a colorable claim and was not waived. We agree. This court has previously held that
“allegations regarding the ineffectiveness of appellate counsel, when trial and appellate counsel are
different, are not waived under the Post-Conviction Act when those allegations are not presented on
direct appeal.” State v. John Earl Scales, No. M2001-00310-CCA-R3-PC, 2002 WL 1949697, at
*2 (Tenn. Crim. App. Aug. 23, 2002) (citing Kendricks v. State, 13 S.W.3d 401, 405 (Tenn. Crim.
App. 1999)). The fact that a petitioner raised claims of ineffective assistance of trial counsel on
direct appeal, as did this petitioner, does not waive consideration of ineffective assistance of
appellate counsel on post conviction. Laraiel Winton v. State, No. E2006-02392-CCA-R3-PC, 2007


                                                    -3-
WL 2438112, at **1-2 (Tenn. Crim. App. Aug. 29, 2007). These holdings, coupled with the fact
that the petitioner’s ineffective assistance of appellate counsel claim was not previously determined
and was based on specific allegations of counsel’s failure to acquire a complete transcript and argue
all issues on appeal, lead us to conclude that the petition presented a colorable claim for relief and
consequently the trial court erred by summarily dismissing the petition as to this claim.

                                            CONCLUSION

       Based upon the foregoing, the judgment of the post-conviction court denying the petition for
post-conviction relief is affirmed regarding all issues other than the petitioner’s ineffective assistance
of appellate counsel claim. As to that issue, the judgment of the post-conviction court is reversed
and the case remanded for additional proceedings consistent with this opinion and with the Post-
Conviction Procedure Act.


                                                         ___________________________________
                                                         D. KELLY THOMAS, JR., JUDGE




                                                   -4-
