        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  July 13, 2010 Session

               RODNEY M. BUTLER v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Madison County
                       No. C09-144    Donald H. Allen, Judge




                No. W2009-02183-CCA-R3-PC - Filed March 28, 2011


Petitioner, Rodney M. Butler, appeals pro se after the Madison County Circuit Court
summarily dismissed his post-conviction petition seeking relief from his guilty plea to
driving under the influence, fourth offense, a Class E felony, for which he received a three-
year sentence with a 35 percent release eligibility. We conclude that Petitioner should have
been afforded an evidentiary hearing, and for the reasons stated herein, we reverse the
judgment of the post-conviction court and remand this matter for further proceedings
consistent with this opinion.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Rodney M. Butler, Jackson, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Alfred L. (Al) Earls,
Assistant District Attorney General, for the appellee, the State of Tennessee.

                                        OPINION

       The record before us is sparse at best. Not included in the record on appeal are the
judgment of conviction, a transcript from the guilty plea hearing, or a transcript from
proceedings in the post-conviction court, at which the court apparently heard legal
arguments, but no evidence, on August 17, 2009. What is included in the record are
Petitioner’s pro se petition for post-conviction relief, the State’s response and motion to
dismiss, Petitioner’s motion for the post-conviction court’s recusal, Petitioner’s motion for
discovery and production of documents related to his 1992 and 1993 DUI convictions, the
written order denying post-conviction relief, and an affidavit from the clerk of the trial court
stating that the documents related to Petitioner’s 1992 and 1993 convictions as well as other
requested documents had not been filed with the clerk’s office.

        The State contends that Petitioner has waived the issues on appeal because he has
failed to provide a record that conveys “a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b).
We disagree. However sparse, we are able to discern from the record what occurred at the
trial court level.

        According to the pro se post-conviction petition and the trial court’s “preliminary
order” dismissing the petition, Petitioner pled guilty on May 15, 2008, to the offense which
is the subject of the post-conviction proceedings. Both documents indicate that Petitioner
was represented by counsel at the time he pled guilty. On May 15, 2009, Petitioner filed his
pro se petition for post-conviction relief. Six days later, on May 21, 2009, an Assistant
District Attorney filed a pleading designated as “State’s Response and Motion to Dismiss.”
Generally, the State’s response denied that Petitioner was entitled to relief, but the response
failed to list any specific factual ground for the trial court to dismiss the petition without an
evidentiary hearing. In part, the State asserted that,

              The State denies the allegations of the petition and demands
              strict proof thereof.

              The State will rely upon waiver and previous determination of
              the issues. T.C.A. § 40-30-102 et. seq.

              The State will rely upon all applicable statutes of limitations.
              T.C.A. § 40-30-102 et. seq.

       Later in its response, the State asserted that it “objects to the broad generalizations of
deficient performance. The petitioner is sand bagging in an attempt to obtain a trial by
ambush. The petitioner has not made any assertion of fact to support his claims.”

       While the pro se petition is typewritten, the spacing, or lack thereof, of letters and
words throughout the document presents a slight challenge in reading it. However, the
properly sworn petition states that the proceedings concern a DUI conviction in Madison
County Circuit Court in case no. 08-16 on May 15, 2008. It alleges Petitioner received a
sentence of three years, clearly implying the conviction was for felony DUI. The petition

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states that Petitioner was represented in the felony DUI proceedings by an assistant public
defender for the 26th Judicial District.

       Within the petition, it is specifically alleged that “Petitioner believes that he was
denied effective assistance of counsel. . . .” Although scattered throughout the petition, and
arguably not presented with the best organizational skills, Petitioner alleges various failures
by his attorney that can be generally categorized as follows:

              (a)    Counsel did nothing to prepare a sufficient defense prior
                     to the negotiated plea agreement;

              (b)    Counsel implicitly failed to file and present pretrial
                     motions requested by Petitioner, and failed to investigate
                     facts that could have negated or greatly mitigated
                     Petitioner’s culpability;

              (c)    Counsel refused to present a constitutional challenge to
                     the State’s use of Petitioner’s prior DUI convictions;

       Petitioner also asserts constitutional grounds for relief which are independent of
allegations of ineffective assistance of counsel. Petitioner furthermore asserts facts in
support of his argument that these grounds are not waived or previously determined pursuant
to Tennessee Code Annotated section 40-30-106. Petitioner also filed a motion for discovery
from the State and for Judge Donald Allen to recuse himself. On September 1, 2009, the trial
court clerk filed an order of the post-conviction court, Judge Allen, designated “Preliminary
Order (No Colorable Claim).” Apparently legal arguments, but no evidence, were heard in
court on August 17, 2009. The entire body of the order is as follows:

                                PRELIMINARY ORDER

                               (NO COLORABLE CLAIM)

                        After examination of the petitioner’s “Post Conviction
              Petition for Relief from Sentence or Conviction,” filed May 15,
              2009, and after examination of the State’s response to such
              Motion filed May 21, 2009, and after examination of the files,
              records, transcripts, and correspondence relating to the judgment
              under attack, and after arguments heard in this matter on August
              17 th , 2009, this court finds as follows:



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(1)   the petitioner’s “Motion for Recusal” is
      denied, based upon his arguments that he
      has “no problem” with this Judge hearing
      this matter.

(2)   The petitioner’s “Motion for Discovery
      and Production” is granted, and agreed to
      by the State.

(3)   The Petition shall be dismissed for failure
      to assert a colorable claim based on the
      following findings of fact and conclusions
      of law:

      (a)    The petition fails to include
             allegations of facts to
             support his claim of
             ineffective assistance of
             counsel.

      (b)    The Court has previously
             ruled that the petitioner’s
             guilty plea in this case was
             “freely, voluntarily,
             knowingly and intelligently
             entered,” on May 15 th , 2008,
             and that the defendant stated
             under oath at the time of his
             guilty plea that he was
             “satisfied” w ith his
             attorney’s representation.

      (c)    The petition raises an issue
             that has been previously
             determined by this Court or
             has previously been waived.

      (d)    The petition fails to include
             allegations of facts that the
             petitioner was prejudice[d]

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                                    by defense        c o u n s e l’s
                                    performance.

        As to the post-conviction court’s four reasons for summarily dismissing the petition
without an evidentiary hearing, we have set forth above what we conclude are at least
minimally sufficient factual allegations of ineffective assistance of counsel in order to avoid
summary dismissal. The trial court did not specify the issue “that has been previously
determined by this Court or has previously been waived,” therefore, that is not a valid reason
for summary dismissal. Apparently, the post-conviction court accepted Petitioner’s guilty
plea, and in that proceeding determined the plea was freely, voluntarily, knowingly, and
intelligently entered. While this determination at the time of the guilty plea is required in
order to accept the plea, see Tenn. R. Crim. P. 11(b); see also Lane v. State, 316 S.W.3d 555
(Tenn. 2010), that alone has never been grounds to conclusively determine that a post-
conviction petition must be summarily dismissed. Also, Petitioner’s statement under oath
at the guilty plea hearing that he was “satisfied” with his attorney’s representation, while
perhaps compelling evidence contrary to testimony of deficient representation in a post-
conviction hearing, does not equate to a legal determination that counsel rendered
constitutionally effective assistance of counsel. At the time of a guilty plea, a defendant who
knows not better, might be “satisfied” with his or her counsel’s representation, and later
discover that the representation was constitutionally ineffective.

        As to the final reason given by the post-conviction court, Rule 28, § 5(E)(3) of the
Rules of the Supreme Court of Tennessee, provides that each petition for post-conviction
relief must contain “each and every error that Petitioner asserts as a ground for relief,
including a description of how petitioner was prejudiced by the error(s).” Petitioner alleges
in his petition that the offense for which he was convicted should have not been more serious
than a misdemeanor, rather than the felony to which he pled guilty. Again, at a minimum,
this is sufficient to satisfy Rule 28, § 5(E)(3).

        Rule 28 §5(D) of the Rules of the Supreme Court of Tennessee states in part that
“[t]he petition for post-conviction relief shall be substantially in the form set forth in the
appendix [to Rule 28].” The appendix provides that the form “shall be available . . . to any
potential petitioner in the office of the clerk of court for any court of record with criminal
jurisdiction.” Tenn. S.Ct. R.28, Appendix A. Upon remand, Petitioner should be given the
opportunity allowed by statute to file an amended petition that is in the form set forth in the
appendix to Rule 28. See Tenn. Code Ann. § 40-30-107.

        Based upon our analysis, we conclude that the judgment of the post-conviction court
summarily dismissing the petition should be reversed, and that this case must be remanded
for further proceedings consistent with this opinion, including an evidentiary hearing.

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                                     CONCLUSION

       We reverse the post-conviction-conviction court’s order dismissing the petition, and
remand this matter for appointment of counsel if required, an opportunity to amend the
petition by filing it in the proper form, and for other proceedings, including an evidentiary
hearing, as required by law.

                                                   __________________________________
                                                   THOMAS T. WOODALL, JUDGE




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