         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 27, 2001

                 JOHN EARL SCALES v. STATE OF TENNESSEE

           Post-Conviction Appeal from the Criminal Court for Davidson County
                           No. 96-A-339    Steve Dozier, Judge



                    No. M2001-00310-CCA-R3-PC - Filed August 23, 2002


The appellant, John Earl Scales, was convicted by a Davidson County jury of felony murder and
attempted aggravated robbery. He was sentenced to life imprisonment for the murder with a
concurrent three-year term for the attempted aggravated robbery conviction. On direct appeal this
Court affirmed the convictions and sentences. State v. John Earl Scales, No. 01C01-9709-CR-00412
(Tenn. Crim. App., at Nashville Feb. 24, 1999), 1999 Tenn. Crim. App. LEXIS 168, at *28. On
November 20, 2000, Scales filed a petition for post-conviction relief. On December 19, 2000, the
post-conviction court summarily dismissed the petition. From that dismissal the appellant perfected
the instant appeal. We find that the post-conviction court erred in summarily dismissing the
appellant’s claims regarding the alleged ineffectiveness of his appellate counsel on the grounds of
waiver or previous determination. Moreover, we find that the post-conviction court’s order
indicating that such allegations do not state “colorable claims” does not set forth with sufficient
specificity the court’s findings with regard to the allegations concerning the alleged ineffectiveness
of appellate counsel. We therefore remand this case for entry of an appropriate order in accordance
with this opinion.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE , JJ., joined.

John Earl Scales, Pro Se, Only, Tennessee.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Victor
S. Johnson, District Attorney General; and Jon Seaborg, Assistant District Attorney General, for the
appellee, State of Tennessee.
                                               OPINION

         In his direct appeal the appellant was represented by a different attorney than the one who
represented him at trial. That appellate attorney presented a number of issues for review including
inter alia whether the appellant’s trial counsel rendered ineffective assistance in violation of the Sixth
Amendment to the United States Constitution. Id. at *4. On direct appeal the appellant also raised
issues concerning the sufficiency of the convicting evidence, an alleged failure of the trial court to
give a curative instruction regarding the testimony of a witness named Vera Thompson, alleged
police misconduct in the claimed failure of police to recover surveillance tapes that the appellant
claims are exculpatory, and the trial court’s decision to deny a new trial based on newly discovered
evidence. These issues have been previously determined and cannot form the basis of post-
conviction relief. Tenn. Code Ann. § 40-30-206(f). Summary dismissal of these grounds in the
instant case is affirmed.

        However, the post-conviction court also found that appellant’s claims of ineffective appellate
counsel were either waived, previously determined or failed to present “colorable claims” when
taken as true. See Tenn. R. Sup. Ct. 28 § 2(H). The post-conviction court without further discussion
simply stated that the claims regarding appellate counsel’s alleged failures do not constitute deficient
performance, or if deficient, fail to show that the appellant was prejudiced by counsel’s performance.
We are of the opinion that a finding of waiver or previous determination of the claims regarding
ineffective assistance of appellate counsel was erroneous. Moreover, simply stating that the claims
lack a factual or legal basis for stating a colorable claim is not sufficient under the supreme court
rules regarding post-conviction cases so as to allow full appellate review.

        This case is similar to Kendricks v. State, 13 S.W.3d 401 (Tenn. Crim. App. 1999), wherein
a panel of this Court found 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. Id. at 405. In addition, we have examined both the
post-conviction petition and the opinion rendered by this Court on direct appeal. We do not see that
the claims regarding appellate counsel’s performance were addressed in the opinion; thus, they have
not been previously determined. Therefore, the post-conviction court erred in summarily dismissing
the appellate counsel claims based on waiver or previous determination.

       As noted earlier, the post-conviction court did state that it had reviewed the allegations
regarding appellate counsel and was of the opinion that the allegations failed to establish any
“colorable claims.” However, Tennessee Supreme Court Rule 28, section 6(B)(4)(c) refers to the
summary dismissal of post-conviction petitions and provides in pertinent part:

                In the event the court concludes that dismissal is appropriate, the
                court shall enter an order specifying its findings of fact and
                conclusions of law in support of the determination that the petition
                does not state a colorable claim.



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Tenn. Sup. Ct. R. 28 § 6(B)(4)(c) (emphasis added).

        The post-conviction court’s order does not specify why the claims regarding appellate
counsel’s performance, if true, would not entitle the appellant to relief mandated by Rule 28, section
6(B)(4)(c). The shibboleth that such allegations do not meet the “colorable claims” standard is
insufficient.

                                          CONCLUSION

       This case is remanded to the post-conviction court for entry of an order specifying in what
way the court finds the appellant’s allegations regarding appellate counsel fail to state “colorable
claims” under the Post-Conviction Procedures Act and the Tennessee Supreme Court Rules
governing post-conviction procedures.


                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




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