           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                          FILED
                                                         September 19, 1997
                                  AT KNOXVILLE

                             SEPTEMBER 1995 SESSION      Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk




JAIMIE K. LOVATO,                     )
                                      )
            Appellant,                )    NO. 03C01-9410-CR-00375
                                      )
                                      )    GREENE COUNTY CRIMINAL
V.                                    )    NO. C11793
                                      )
                                      )    HON. JAMES E. BECKNER, JUDGE
STATE OF TENNESSEE,                   )
                                      )    Post-Conviction
                                      )
            Appellee.                 )




FOR THE APPELLANT:                         FOR THE APPELLEE:

Paul G. Whetstone                          Charles W. Burson
502 North Jackson Street                   Attorney General and Reporter
Morristown, Tennessee 37814
                                           Christiana S. Shevalier
                                           Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, Tennessee 37243-0943

                                           C. Berkeley Bell, Jr.
                                           District Attorney General

                                           Cecil Mills
                                           Assistant District Attorney General
                                           109 South Main Street, Suite 501
                                           Greeneville, Tennessee 37743



OPINION FILED: _______________



Affirmed



Lee Russell, Special Judge

                                    OPINION
         This is an appeal from the dismissal of a Petition for Post-Conviction Relief filed

pro se by Jaimie K. Lovato (“Petitioner”). The Petition was dismissed by the trial judge

without a hearing and without the appointment of counsel. The Order stated that the

Petition was dismissed on the grounds that all issues raised had been previously

determined or waived under Tennessee Code Annotated § 40-30-102 and that the

Petition was time-barred under Tennessee Code Annotated § 40-30-102. The Petitioner

has appealed the dismissal on the grounds that counsel should have been appointed and

a full evidentiary hearing held on the Petition, on the grounds that the three year statute

of limitation had not passed since final disposition of the Petitioner’s previous Petition for

Post-Conviction Relief, and on the grounds that the issues raised in the second Petition

for Post-Conviction Relief were not previously determined or waived. We affirm the trial

court.


         The Petitioner was convicted on September 1, 1989, for a number of offenses,

including aggravated rape, aggravated kidnapping, aggravated sexual battery, robbery,

burglary, larceny, assault with intent to commit rape, armed robbery, simple possession

of marijuana, criminal trespass, and prowling. The Petitioner waived his right to a trial by

jury and entered a plea of guilty pursuant to a plea bargain agreement. There was no

direct appeal from the plea of guilty.    The Petitioner subsequently filed pro se a first

Petition for Post-Conviction Relief, which was amended by counsel. This court affirmed

the trial court’s dismissal of the first Petition on January 28, 1992, in the case of Jaimie

K. Lovato v. State, Greene County, C.C.A. No. 03C01-9108-CR-00244, Opinion filed

January 28, 1992, at Knoxville. On May 18, 1992, the Tennessee Supreme Court denied

the Petitioner’s application for permission to appeal this court’s judgment on the first

Petition for Post-Conviction Relief.




         The original post-conviction case raised two grounds for relief, first, that the

Petitioner’s pleas of guilty were involuntary, and second, that the Petitioner received


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ineffective assistance of counsel. Both issues were based on the Petitioner’s claim that

his trial counsel incorrectly advised him that he was subject to the death penalty for

armed robbery. No issue was raised in the first post-conviction proceeding about the

Petitioner being under the influence of drugs at the first sentencing hearing. A full

evidentiary hearing was conducted on the first application for post-conviction relief, and

the trial judge found as follows:

           [Defense counsel in the original cases] advised the petitioner of all the
       charges against him; all his rights; all his options; the consequences of his
       actions; of all the evidence in the case; all procedures; all punishments.
       The death penalty was never discussed with him. No one objectively can
       look at this record and come to any conclusion other than these lawyers did
       everything that could be done in the representation of the petitioner and
       that the decisions and tactics were correct ones. . . [I]t appears that plea
       negotiations went on for a period of at least two months. And the lawyers
       were careful to advise the petitioner of all possibilities, punishments,
       options and make recommendations based upon the great efforts that had
       preceded the plea negotiations. But they were careful to leave the choice
       of whether to plead guilty or to go to trial to petitioner.


       This Petitioner appealed the first denial of post-conviction relief to this court, and

an opinion was filed on January 28, 1992. This court found that the Petitioner “received

the benefit of very experienced counsel who diligently investigated all aspects of the

cases and ably represented him in their preparation.” This court agreed with the trial

court that the Petitioner at his sentencing hearing “convincingly” testified that he

understood the range of punishment to which he was exposed and he “convincingly and

understandingly” confirmed the factual allegations against him. This court affirmed the

trial court’s dismissal of the first post-conviction proceeding, and the Petitioner filed for

permission to appeal to the Tennessee Supreme Court. As previously stated, the

Supreme Court denied that application on May 18, 1992.


       The Petitioner filed the instant Petition, his second petition, on May 4, 1994. He

also filed a Motion to Proceed in Forma Pauperis and a Memorandum of Law in support

of his Petition. The State filed its Answer on June 6, 1994. On September 6, 1994, the

trial court dismissed the second Petition for Post-Conviction Relief as being time-barred

and as raising issues that had previously been determined or were waived. The

Petitioner subsequently filed a Motion for Appointment of Counsel, and one was

                                             3
appointed. Notice of Appeal was filed on September 27, 1994.

       Tennessee Code Annotated § 40-30-102 prior to its repeal in 1995 stated that a

prisoner in custody in Tennessee “must petition for post-conviction relief under this

chapter within three (3) years of the date of the final action of the highest state appellate

court to which an appeal is taken or consideration of such petition shall be barred.” The

Petitioner argues that the three year period began to run on May 18, 1992, when the

Supreme Court denied permission to appeal the denial of the first post-conviction

proceeding. If that were the correct time from which to calculate the three year period,

the second application would in fact have been timely filed. The State, however, argues

that the three year time period began to run as soon as the original conviction became

a final judgment, that original conviction not having been appealed. If the State is correct

as to the date on which the three years began to run, then the second Petition for Post-

Conviction Relief was not timely filed. This court has previously held that the three year

time period begins to run from the date of judgments of conviction when the defendant

did not take a direct appeal of his or her conviction. See Warren v. State, 833 S.W.2d

101, 102 (Tenn. Crim. App. 1992), perm. app. denied (Tenn. 1992). Therefore this

second application for post-conviction relief was not timely filed.


       Tennessee Code Annotated § 40-30-109(a)(1) provided before its repeal that

when a post-conviction petition “has been competently drafted and all pleadings, files,

and records of the case which are before the court conclusively show that the petitioner

is entitled to no relief, the court may order the petition dismissed.” In Baxter v. Rose, our

Supreme Court stated that “the allegations of a pro se complaint are held to less stringent

standards than formal pleadings drafted by lawyers, and the test is whether it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” 523 S.W.2d 930, 939 (Tenn. 1975). “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). A colorable claim is one that alleges facts showing that the conviction resulted

from an abridgement of a constitutional right and which demonstrates that the ground for

                                             4
relief was not previously determined or waived. See State v.Smith, 814 S.W.2d 45, 49

(Tenn. 1991); Arthur v. State, 483 S.W.2d 95, 96 (Tenn. 1972). “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.”          Swanson, 749 S.W.2d at 734.

However, when a petition has been competently drafted, and conclusively shows that the

petitioner is entitled to no relief, the court may order the petition dismissed without the

appointment of counsel and without an evidentiary hearing. T.C.A. § 40-30-109(a)(1).

See also Swanson, 749 S.W.2d at 734; Givens v. State, 702 S.W.2d 578, 580 (Tenn.

Crim. App. 1985). A clear but patently non-meritorious petition may be dismissed

summarily, without the appointment of counsel, much less an evidentiary hearing. See

Martucci v. State, 872 S.W.2d 947, 949 (Tenn. Crim. App. 1993). However, the court

must look to the substance rather than the form of the petition, and no petition should be

dismissed for technical defects, incompleteness, or lack of clarity until the petitioner has

had reasonable opportunity, with the aid of counsel, to file amendments.


       The Petition in this case appears to be competently drafted. The Petition and the

record available to the trial judge provided him with all of the factual information

necessary to ascertain that the limitations period set out in Tennessee Code Annotated

§ 40-30-102 had expired. This court has held that a trial judge may without the

appointment of counsel and without an evidentiary hearing dismiss a post-conviction

petition on the grounds that the limitations period established by Tennessee Code

Annotated § 40-30-102 has expired because a failure to file timely is not a technical

defect and does not result from lack of clarity or incompleteness. See Frederick v. State,

906 S.W.2d 927, 930 (Tenn. Crim. App. 1993).


       The trial court’s dismissal of the Petition for Post-Conviction Relief is affirmed on

the basis of the failure to file for relief within the time allowed by law. It therefore is not

necessary to reach the Appellant’s final grounds for appeal.




                                              5
                               LEE RUSSELL, SPECIAL JUDGE




CONCUR:



____________________________
WILLIAM M. BARKER, JUDGE



____________________________
JOHN K. BYERS, SENIOR JUDGE




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