        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 28, 2016

                   ERIC PARKER v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sullivan County
                    No. C65,592    James F. Goodwin, Jr., Judge


                  No. E2016-00298-CCA-R3-PC – Filed July 8, 2016


Pro se petitioner, Eric Parker, appeals the Sullivan County Criminal Court‟s summary
dismissal of his petition for post-conviction relief. On appeal, he argues that his petition
contains sufficient factual support to establish colorable claims for relief and that the
post-conviction court erred by dismissing his petition without a hearing. Upon review,
we reverse the judgment of the post-conviction court with regard to the petitioner‟s
ineffective assistance of counsel claim and remand for appointment of counsel and an
opportunity to amend the petition for post-conviction relief as it relates to that claim. In
all other respects, the judgment of the post-conviction court is affirmed.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., J., joined. ROBERT H. MONTGOMERY, JR., J., not participating.

Eric Parker, Clifton, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Barry P. Staubus, District Attorney General; and Kaylin K. Render, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                           OPINION

       In July 2011, the petitioner was indicted for the intentional or knowing aggravated
assault of a domestic abuse victim after he beat his girlfriend with a metal rod. Following
a jury trial, he was convicted of the lesser offense of aggravated domestic assault by
reckless conduct, a class D felony. See T.C.A. §§ 39-13-101(a)(1), -102(a)(1)(B)(iii)
(West 2010). The trial court sentenced the petitioner as a Range I, standard offender to
four years‟ incarceration with thirty percent release eligibility. Both his conviction and
sentence were affirmed by this court on direct appeal. See State v. Eric Parker, No.
E2013-02339-CCA-R3-CD, 2014 WL 5483015, at *1 (Tenn. Crim. App. Oct. 29, 2014),
no perm. app. filed. As relevant to this appeal, the underlying facts of the petitioner‟s
case on direct appeal were as follows.

        On the day of the offense, the petitioner, whom the victim had been dating for
around a year, gave the victim two money orders totaling $750, and the victim placed the
money orders in the pocket of her pants. Id. at *2. When the petitioner subsequently
asked her for the money orders, the victim, forgetting that she had changed clothes,
thought that she had lost them. Id. The petitioner began yelling at the victim and struck
her with the back of his hand, knocking her to the floor. Id. The petitioner then beat the
victim repeatedly with a metal rod, and the victim‟s wounds required immediate
hospitalization. Id. She testified at trial that she sustained permanent injuries in the
attack, including scars, an injury to a tendon or ligament in her arm, and a hole in her
thigh that was so deep that she could see bone at the time of the injury and that medical
personnel were unable to close. Id. at *3. The victim‟s neighbor, father, and sister also
testified consistently at trial with regard to the severity of the victim‟s injuries, and
photographs of her injuries were introduced into evidence. Id.

        Several hours after the assault, the petitioner was arrested. At that time, law
enforcement officers searched the apartment where the victim and petitioner resided
together and recovered “a barbell” from underneath their bed. Id. at *3. There was
another weight bar, which was slightly longer, in the living room. Id. Photographs were
taken of both bars during the search, and the victim identified the bar from the bedroom
as the one used to beat her. The weapon was taken into evidence, but the photographs
from the search were lost prior to trial. Id. The petitioner, testifying on his own behalf at
trial, gave a description of the assault that was largely consistent with the victim‟s
testimony. Id. The only significant discrepancy in the petitioner‟s account was his claim
that he hit the victim repeatedly with a copper broomstick, and he agreed with the
prosecutor‟s statement that “basically the only thing you dispute is the fact that a weight
bar was used. Everything up to this point you admit doing, it just happened to be with a
broomstick is what your testimony is.” Id. Moreover, the petitioner confirmed that the
victim had blood trickling down her arm and leg after the assault. Id. at *4.

       Based on the aforementioned proof, the jury convicted the petitioner of reckless
aggravated domestic assault, which, as narrowed by the indictment, is committed when
the perpetrator recklessly causes bodily injury to another and the assault involves the use
or display of a deadly weapon. See T.C.A. §§ 39-13-101(a)(1), -102(a)(1)(B)(iii) (West
2010). On October 13, 2015, the petitioner filed a handwritten pro se petition for post-
conviction relief. In his petition, he alleged that he received ineffective assistance of
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counsel based on counsel‟s failure to file timely motions, to investigate the particulars of
his arrest, to investigate the victim‟s background or medical records, to confer with him,
or to file a motion to suppress illegally-obtained evidence “that the trial court did not
reveal [until] the last moment.” He further asserts that “[his] conviction was based on use
of evidence gained pursuant to an unconstitutional search and seizure” and that the State
failed to disclose exculpatory evidence during discovery.”

       On November 30, 2015, the post-conviction court issued an order summarily
dismissing the pro se petition. With regard to the ineffective assistance of counsel
claims, the court reasoned that the petitioner made “sweeping assertions that but for the
alleged deficient performance of his attorney that he might have gotten less time, a lessor
included offense and/or that the result cannot be relied upon” but otherwise “failed to set
out any factual allegations as to prejudice.” The court emphasized that the petitioner
admitted to beating the victim with a copper broomstick in his testimony at trial and
added,

       Given Petitioner‟s admissions before the jury and the fact that the Court of
       Criminal Appeals found that a copper broomstick could have been a deadly
       weapon, this Petitioner cannot show there is a reasonable probability, but
       for counsel‟s unprofessional errors, the result of the proceeding would have
       been different.

In regard to the petitioner‟s additional claims, the court found that the post-conviction
petition “d[id] not set out, as required, any allegations (much less a full disclosure) of the
factual basis for his grounds for relief” and “d[id] not include any allegations of fact
explaining why each ground for relief was not presented in any earlier proceeding.”

       On December 17, 2015, the petitioner filed a pro se motion to reconsider, along
with a memorandum in support of the motion, alleging that he should have been
appointed counsel and allowed time to amend his post-conviction petition. On January
25, 2016, the post-conviction court filed an order denying the motion to reconsider. It is
from this order that the petitioner now appeals.

                                        ANALYSIS

       On appeal, the petitioner asserts that the post-conviction court erred in dismissing
his pro se petition for relief. As an initial matter, the State asserts that this appeal should
be dismissed because the petitioner did not file a timely notice of appeal. We agree that
the petitioner‟s notice of appeal was not timely filed. The deadline for the notice of
appeal was December 30, 2015, which was thirty days from the filing of the post-
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conviction court‟s written order dismissing the post-conviction petition. See Tenn. R.
App. P. 4(a). The petitioner‟s notice of appeal was not filed until February 10, 2016,
which was within thirty days of the court‟s order denying the petitioner‟s motion to
reconsider. However, in the petitioner‟s December 8, 2015 motion to reconsider, the
petitioner indicated that he was intending for the motion to “also function as his Notice of
Appeal” in the event that it was denied. Though we acknowledge that the petitioner‟s
motion to reconsider did not toll the thirty-day filing requirement, see State v. Rockwell,
280 S.W.3d 212, 214-15 (Tenn. Crim. App. 2007), the State was on notice of the
petitioner‟s intention to file an appeal in this matter within thirty days of the dismissal of
the post-conviction petition. Under these circumstances, we will review the merits of this
appeal in the “interest of justice.” See Tenn. R. App. P. 4(a).

       The petitioner contends that his pro se petition stated colorable claims for relief
and was sufficient to warrant appointment of counsel and an evidentiary hearing. He
further suggests that the post-conviction court improperly based its dismissal of his
petition on the ultimate success of his claims rather than on a determination of whether he
failed to present a colorable claim for review. We review the propriety of a post-
conviction court‟s summary dismissal of a post-conviction petition de novo. See Arnold
v. State, 143 S.W.3d 784, 786 (Tenn. 2004) (citing Burnett v. State, 92 S.W.3d 403, 406
(Tenn. 2002)); Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001). Post-conviction relief
is only warranted when a petitioner establishes that his or her conviction is void or
voidable because of an abridgement of a constitutional right. T.C.A. § 40-30-103. A
petition for post-conviction relief “must contain a clear and specific statement of all
grounds upon which relief is sought, including full disclosure of the factual basis of those
grounds.” T.C.A. § 40-30-106(d). Bare allegations that a constitutional right has been
violated and mere conclusions of law will not be sufficient to warrant further
proceedings. See id. Upon receipt of a petition for post-conviction relief, the post-
conviction court conducts a preliminary review to “determine whether the petition states
a colorable claim.” Tenn. Sup. Ct. R. 28, § 6(B)(2); Burnett, 92 S.W.3d at 406. A
colorable claim is defined as “„a claim that, if taken as true, in the light most favorable to
the petitioner, would entitle petitioner to relief under the Post-Conviction Procedure
Act.‟” Burnett, 92 S.W.3d at 406 (quoting Tenn. Sup. Ct. R. 28 § 2(H)).

        The post-conviction court “may afford an indigent pro se petitioner the
opportunity to have counsel appointed and to amend the petition, if necessary.” Id.
(citing T.C.A. § 40-30-207(b)(1) (renumbered as § 40-30-107 (2003))). In the event that
an amended petition is incomplete, the court shall determine whether the petitioner is
indigent and in need of counsel and may appoint counsel and enter a preliminary order if
necessary to secure the filing of a complete petition. Id. § 40-30-106(e). “If the facts
alleged in the petition, taken as true, fail to show that the petitioner is entitled to relief or
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fail to show that the claims for relief have not been waived or previously determined, the
post-conviction court shall dismiss the petition.” See id. § 40-30-106(f). The order of
dismissal shall set forth the post-conviction court‟s conclusions of law. See id. A post-
conviction court shall enter an order or a preliminary order within thirty (30) days of the
filing of the petition or amended petition. See id. § 40-30-106(a).

        When determining whether a colorable claim has been presented, pro se petitions
are held to a less rigid standard than formal pleadings drafted by attorneys. Allen v.
State, 854 S.W.2d 873, 875 (Tenn. 1993) (citing Gable v. State, 836 S.W.2d 558, 559-60
(Tenn. 1992)). “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 v. State, 749 S.W.2d 731, 734 (Tenn. 1988) (citing T.C.A. §§ 40-30-
104,-107, -115). However, “[w]here a petition conclusively shows that the petitioner is
entitled to no relief, it is properly dismissed without the appointment of counsel and
without an evidentiary hearing.” Givens v. State, 702 S.W.2d 578, 580 (Tenn. Crim.
App. 1985) (citing T.C.A. § 40-30-109).

        Upon review, we agree with the post-conviction court that the petitioner failed to
provide adequate factual support for his allegation of prosecutorial misconduct based on
the State‟s failure to disclose exculpatory evidence. The only specific evidence the
petitioner identifies as not having been disclosed was the victim‟s medical records. We
note that, in contrast to the petitioner‟s assertions, this court‟s summary of the facts on
direct appeal indicates that defense counsel filed a motion requesting the victim‟s medical
records two weeks prior to trial, at which time the State responded that it did not possess
or intend to introduce the victim‟s medical records at trial. Eric Parker, 2014 WL
5483015, at *1. Moreover, both the trial court, as well as this court on direct appeal,
determined that examination of the victim‟s medical records was unnecessary to establish
that the victim suffered bodily injury. Id. at *1, 7-8.

        Furthermore, we note that both the petitioner‟s claim of prosecutorial misconduct,
as well as his claim that the alleged weapon, a metal weight bar recovered from under the
petitioner‟s bed, was obtained pursuant to an illegal search and seizure, are waived
because the petitioner failed to raise these arguments on direct appeal. See T.C.A. § 40-
30-106(g). However, to the extent that he asserts that counsel was ineffective for failing
to notice or seek to suppress the illegally-obtained evidence, the petitioner presented a
colorable claim for relief sufficient to withstand summary dismissal. Importantly, the
fact that the petitioner‟s assertions as they relate to this claim are disjointed and inartfully
drafted does not render his petition meritless. See Swanson, 749 S.W.2d at 73. Here, the
petitioner identifies the metal bar from under his bed, which was introduced as evidence
at trial, as having been illegally-obtained. He contends that “[t]he police entered into
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[his] home without probable cause []or a warrant,” and that counsel‟s failure to raise this
issue severely prejudiced his case because “had counsel filed a motion to su[p]press[,]
this would have changed the entire evidentiary picture tremendously in favor to the
defense.” In relation to this claim, he also avers that counsel filed a motion for a
continuance in order to examine the alleged weapon but should have instead moved to
suppress the introduction of the illegally-obtained weapon altogether. We conclude that
these collective allegations, if true, would establish a colorable claim for relief, as the use
of a deadly weapon was a requisite element of the offense for which the petitioner was
indicted and counsel‟s failure to suppress the illegally-obtained weapon would have
amounted to prejudice.

       In dismissing the pro se petition for relief, the post-conviction court found that the
petitioner would not ultimately be able to prevail on the merits of an ineffective
assistance of counsel claim in light the inculpatory proof introduced at trial. Though we
acknowledge the weight of the convicting evidence presented at trial, including the
petitioner‟s own testimony, “[t]he ultimate success or failure of a petitioner‟s claims is
not a proper basis for dismissing a post-conviction petition without conducting an
evidentiary hearing.” William Alexander Cocke Stuart v. State, No. M2003-01387-CCA-
R3-PC, 2004 WL 948390, at *3 (Tenn. Crim. App. May 4, 2004) (citing Roosevelt
Malone v. State, No. E2002-00782-CCA-R3-PC, 2003 WL 21145488, at *2 (Tenn. Crim.
App. May 16, 2003); see also T.C.A. § 40-30-106(b)-(d); Gregory D. Valentine v. State,
No. M2014-00977-CCA-R3-PC, 2015 WL 274181, at *7 (Tenn. Crim. App. Jan. 21,
2015). Furthermore, there is no requirement that a petitioner prove his claims at this
stage; he must only allege a colorable claim in his petition. See Shazel v. State, 966
S.W.2d 414, 415-16 (Tenn. 1998) (“There obviously is an important distinction between
the right to seek relief in a post-conviction proceeding and the right to have relief in a
post-conviction proceeding.”).

       Because the petitioner has presented at least one colorable claim for ineffective
assistance of counsel and the denial of effective assistance is a constitutionally
recognized ground for post-conviction relief, we conclude that the post-conviction court
prematurely dismissed the petitioner‟s claim. Accordingly, we reverse the judgment of
the post-conviction court summarily dismissing the petition as it relates to the petitioner‟s
allegation of ineffective assistance of counsel. The case is remanded for appointment of
counsel and the opportunity to amend the petition for post-conviction relief pursuant to
Tennessee Code Annotated section 40-30-107. In all other respects, the judgment of the
post-conviction court is affirmed.




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                                   CONCLUSION

        Following our review, we reverse the judgment of the Sullivan County Criminal
Court with regard to the petitioner‟s ineffective assistance of counsel claim and remand
for further proceedings consistent with this opinion.


                                                _________________________________
                                                CAMILLE R. McMULLEN, JUDGE




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