           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                           JULY 1997 SESSION
                                                      October 30, 1997

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
WILLIAM JOSEPH HAYES,             )
                                  )   C.C.A. NO. 01C01-9608-CC-00351
           Appellant,             )
                                  )   WILLIAMSON COUNTY
VS.                               )
                                  )   HON. HENRY DENMARK BELL,
STATE OF TENNESSEE,               )   JUDGE
                                  )
           Appellee.              )   (Post-conviction)



FOR THE APPELLANT:                    FOR THE APPELLEE:


WILLIAM JOSEPH HAYES, pro se          JOHN KNOX WALKUP
Turney Center Industrial Prison       Attorney General & Reporter
Unit 4-B
Route 1, Turney Center                PETER M. COUGHLAN
Only, TN 37140-9709                   Asst. Attorney General
                                      450 James Robertson Pkwy.
                                      Nashville, TN 37243-0493

                                      JOSEPH D. BAUGH
                                      District Attorney General
                                      P. O. Box 937
                                      Franklin, TN 37065




OPINION FILED:____________________



REVERSED AND REMANDED


JOHN H. PEAY,
Judge
                                        OPINION



              The petitioner pled guilty to one count of solicitation to commit first-degree

murder and was sentenced pursuant to a plea-bargain as a Range I standard offender

to eight years incarceration in the Tennessee Department of Correction. Judgment was

entered on August 25, 1994. On May 3, 1996, the petitioner filed for post-conviction relief

alleging that he had pled guilty as a result of ineffective assistance of counsel. The court

below summarily dismissed the petition on the grounds that “measured against the court

record, the petition for post conviction relief is without merit.” The petitioner now appeals,

claiming that he was entitled to a hearing on his post-conviction claims. We agree and

reverse and remand this matter for an evidentiary hearing.



              Upon receipt of a petition for post-conviction relief, “the court shall examine

the allegations of fact in the petition. If the facts alleged, taken as true, fail to show that

the petitioner is entitled to relief or fail to show that the claims for relief have not been

waived or previously determined, the petition shall be dismissed.” T.C.A. § 40-30-206(f)

(Supp. 1996) (emphasis added). In the instant case, the petitioner alleged that he

received ineffective assistance of counsel and that he was thereby coerced into pleading

guilty. In support of his claims, he alleged, among other things, that his attorneys failed

to represent him properly as follows:

              1.      Failed to enter his plea in accordance with his wishes;

              2.      Disregarded his suggestions for the “development of or
                      aggressive pursuit of any viable defenses;”

              3.      Refused to file a motion for psychological evaluations;

              4.      Refused to contact witnesses;

              5.      Failed to respond to repeated communications;

              6.      Informed him that the only responsibility to him “was not


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                      a defense which shall prevail at trial, but to get [him] the
                      best deal (i.e., plea bargain), nor, for that matter, to have
                      the jury find [him] innocent, nor no verdict due to the
              insufficiency of the evidence beyond a reasonable doubt            to
              sustain a conviction of guilt;” and

              7.     Told him that his religion -- Wicca -- was on trial, not his
                     crime.

As a result of these failures, the petitioner contends, he “was coerced by them and their

missleading advise of prevailing in the Appellate Courts of the State of Tennessee, to

accept a plea.”



              In reviewing the petitioner’s allegations, the court below examined other

matters contained in the record of the State’s case against the petitioner and decided that

the petitioner’s allegations were without merit.      We commend the court below for

attempting to save the State the time, money and resources required to provide the

petitioner with a hearing. However, in doing so, the court below overlooked its statutory

duty to take as true the allegations contained in the petition, without regard to other

matters contained in the record. Taken as true, the petitioner’s allegations state a claim

for relief. Accordingly, even if every single allegation is proved false, the petitioner is

entitled to a hearing.



              The judgment below is reversed and this matter is remanded for an

evidentiary hearing in accordance with the Post-Conviction Procedure Act, T.C.A.

§ 40-30-201 et. seq. (Supp. 1996).



                                                  _______________________________
                                                  JOHN H. PEAY, Judge




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CONCUR:



______________________________
WILLIAM M. BARKER, Judge



______________________________
JERRY L. SMITH, Judge




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