         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs February 6, 2007

              ANTONIUS C. DOUGLAS v. STATE OF TENNESSEE
                     Appeal from the Circuit Court for Hardeman County
                        No. 06-01-0168 J. Weber McCraw, Judge



                    No. W2006-01750-CCA-R3-PC - Filed March 9, 2007


The petitioner, Antonius C. Douglas, filed a post-conviction appeal following a guilty plea and
conviction in Hardeman County Circuit Court. The trial court dismissed the petition, stating that the
petition did not state a colorable claim. We conclude that the petition did state a colorable claim and
therefore reverse the dismissal.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
JOHN EVERETT WILLIAMS, J., joined.

Antonius C. Douglas, Clifton, Tennessee, pro se, petitioner.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; Joe L. VanDyke, Assistant District
Attorney General, for the respondent, State of Tennessee.


                                              OPINION

        The petitioner, Antonius C. Douglas, entered a guilty plea in Hardeman County Circuit Court
on one count of delivery of 0.5 gram or more of cocaine. He was sentenced as a Range I, standard
offender to eight years in prison. On July 3, 2006, the petitioner filed a petition for post-conviction
relief in the trial court, alleging the following constitutional violations: (1) that he received
ineffective assistance of counsel at the guilty plea hearing, (2) that his due process rights were
violated, and (3) that his guilty plea was obtained by coercion, manipulation, and erroneous
information. The trial court dismissed the petition without a hearing, stating that the petition did not
state facts sufficient to support a colorable claim.
        In filing his post-conviction petition in the trial court, the petitioner incorporated by reference
a sworn “Memorandum of Law in Support of Petitioner’s Petition for Post-Conviction Relief.”1 In
the memorandum, he alleged that on May 1, 2006, he entered into a plea agreement, and that his trial
attorney advised him that he would receive an effective sentence of three years as a Range I, standard
offender. According to the petitioner, the trial court set a May 18, 2006, date for the sentencing
hearing. However, the petitioner claims that on May 16, he was “unexpectedly” called into court and
sentenced to eight years in prison as a Range I, standard offender, and not three years, as he had been
promised. Following the hearing, when the petitioner expressed concern over his sentence, the
attorney advised him not to worry about the eight-year sentence and that everything would be “taken
care of.”

         The petitioner, in his affidavit, also alleged ineffective assistance of counsel in the
proceedings leading up to his plea agreement. The petitioner also alleges that the indictment handed
down by a Hardeman County grand jury in January 2006 “was invalid, and improperly endorsed as
a being a True Bill.” He alleges that the record of the grand jury term indicates “that there exist no
grand jury minutes, indicating that a whole Grand Jury had been adjourned to hear evidence against
the Petitioner,” and that “there exist[s] no form of affidavit of complaint warranting probable cause.”
In light of these allegations, the petitioner claims the indictment was “unconstitutional and void” and
that his trial attorney should have inspected the grand jury proceedings and, in light of their supposed
invalidity, filed a motion to dismiss the indictment.

        On July 31, 2006, the trial court dismissed the petition without a hearing. The trial court’s
order stated that “the Petition for Post-Conviction Relief does not contain sufficient clear and
specific statements including a full disclosure of facts to establish a factual basis for the grounds
alleged and for which relief is sought, and therefore, the petition is not well taken.”

        On appeal, both the state and the petitioner agree that the petitioner alleged in his petition
factual allegations giving rise to a colorable claim.

                                               ANALYSIS

         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


        1
        Specifically, the petition states “As grounds in support thereof, the Petitioner would rely upon the
contemporaneously filed Memorandum of Law In Support Thereof.”

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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”); but cf. Arnold v. State, 143 S.W.3d 784,787
(Tenn. 2004) (holding that a petition stated a “colorable claim” when it alleged that an attorney’s
failure to move for a change of venue in a case involving intense media publicity resulted in
prejudice to the petitioner).

        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).

        Taking the allegations in the petition as true and in the light most favorable to the petitioner,
we hold that the petitioner stated a “colorable claim” that would entitle him to an evidentiary hearing
as provided for under the Post-Conviction Procedure Act. The petition for post-conviction relief and
its supporting memorandum, if taken as true, clearly allege that the petitioner received deficient
advice and representation from counsel from the time of indictment through the guilty verdict, and
that but for the attorney’s errors, the petitioner would not have pleaded guilty. In light of these
allegations, the trial court should have issued a preliminary order as provided under the Post-
Conviction Relief Act, which would have entitled the petitioner to appointed counsel and the
opportunity to revise his petition for post-conviction relief.

                                           CONCLUSION

        The petitioner’s petition for post-conviction relief, which incorporated by reference a sworn
affidavit containing detailed facts supporting the petitioner’s allegations of ineffective assistance of
counsel, contained sufficient facts giving rise to a colorable claim, as required by the Post-
Conviction Relief Act and the rules of our supreme court. Therefore, the judgment of the trial court
is reversed and this case is remanded to the trial court for proceedings consistent with this opinion
and with the Post-Conviction Procedure Act.

                                                        ___________________________________
                                                        D. KELLY THOMAS, JR., JUDGE




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