         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 7, 2011

           TRACY THOMAS HEPBURN v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Wilson County
   No. 02-0844, 02-0875, 02-0876, 02-0888, 02-0291   John D. Wootten, Jr., Judge




                 No. M2011-01214-CCA-R3-PC - Filed February 2, 2012




The Petitioner, Tracy Thomas Hepburn, was convicted of twenty-four counts of burglary, three
counts of attempted burglary, fourteen counts of misdemeanor vandalism, eight counts of
felony vandalism, ten counts of misdemeanor theft, and three counts of felony theft. The trial
court sentenced him to an effective sentence of 100 years in the Tennessee Department of
Correction (“TDOC”). This Court affirmed the Petitioner’s convictions and sentence, and the
Tennessee Supreme Court denied permission to appeal on January 13, 2011. State v. Tracy
Thomas Hepburn, No. M2008-01979-CCA-R3-CD, 2010 WL 2889101 (Tenn. Crim. App., at
Nashville, July 23, 2010) perm. app. denied (Tenn. January 13, 2011). The Petitioner filed a
petition for post-conviction relief in which he alleged that: (1) his convictions were based on
a coerced confession; (2) his convictions were based on a violation of the privilege against
self-incrimination; and that (3) he received the ineffective assistance of counsel. The post-
conviction court summarily dismissed the petition, finding that the Petitioner failed to state a
colorable claim. The Petitioner appealed, and, on appeal, both parties agree that the post-
conviction court erred and that the case should be reversed and remanded. After a thorough
review of the record and applicable authorities, we agree with the parties that the petition for
post-conviction relief raises a colorable claim. We, therefore, reverse and remand to the post-
conviction court for proceedings consistent with this opinion.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and D. K ELLY T HOMAS, J R., JJ., joined.

Tracy Thomas Hepburn, Whiteville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; Howard Lee Chambers,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION
                                             I. Facts

        This case arises from a string of burglaries committed by the Petitioner. At the
Petitioner’s trial, the State presented the testimony of twenty-one business owners or
employees who testified about the burglaries, thefts, and acts of vandalism committed in their
respective establishments between June 19, 2002, and July 23, 2002. The evidence presented
at trial also included the Petitioner’s signed confession to police. The jury convicted the
Petitioner of twenty-four counts of burglary, three counts of attempted burglary, fourteen
counts of misdemeanor theft, and three counts of felony theft. The trial court sentenced the
Defendant as a Range III, persistent offender, to ten years for each Class D felony conviction,
five years for each Class E felony conviction, and eleven months, twenty-nine days for each
Class A misdemeanor conviction. The trial court imposed a combination of concurrent and
consecutive sentencing for an effective sentence of one hundred years.

       Within the statute of limitations, the Petitioner filed a petition for post-conviction relief
in which he alleged that: (1) his convictions were based on his coerced confession; (2) the
convictions were based on a violation of the privilege against self-incrimination; and (3) he
received the ineffective assistance of counsel.

        The post-conviction court summarily dismissed the Petitioner’s petition, finding that
the allegations were conclusory, the petition asserted previously determined issues, and the
petition failed to assert a colorable claim. The Petitioner appealed, and, on appeal, both parties
agree that the case should be reversed and remanded.

                                           II. Analysis

        Review of a post-conviction court’s summary dismissal of a petition for post-conviction
relief presents a question of law this Court reviews 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)); see also
Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

       Tennessee Code Annotated section 40-30-106(d) sets out certain requirements for
petitions for post-conviction relief and permits a post-conviction court to dismiss inadequate
petitions or allow pro se petitioners an opportunity to amend:

       The petition 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. A bare allegation that a constitutional right has been violated and mere
       conclusions of law shall not be sufficient to warrant any further proceedings.
       Failure to state a factual basis for the grounds alleged shall result in immediate
       dismissal of the petition. If, however, the petition was filed pro se, the judge
       may enter an order stating that the petitioner must file an amended petition that
       complies with this section within fifteen (15) days or the petition will be
       dismissed.

T.C.A. § 40-30-106(d) (2006). The Rules of the Tennessee Supreme Court clarify that a post-
conviction court’s first obligation upon receipt of a petition is to review it in order to determine
whether it states a colorable claim and, if so, to issue a preliminary order that, among other
things, appoints counsel for indigent petitioners and sets a deadline for the filing of an
amended petition:

       (2) Within thirty (30) days after a petition or amended petition is filed, the judge
       to whom the case is assigned shall review the petition and all documents related
       to the judgment and determine whether the petition states a colorable claim.

       (3) In the event a colorable claim is stated, the judge shall enter a preliminary
       order which:

               (a) appoints counsel, if petitioner is indigent;
               (b) sets a deadline for the filing of an amended petition;
               (c) directs disclosure by the state of all that is required to be
               disclosed under Rule 16 of the Tennessee Rules of Criminal
               Procedure, to the extent relevant to the grounds alleged in the
               petition, and any other disclosure required by the state or federal
               constitution;
               (d) orders the state to respond and, if appropriate, to file with the
               clerk certain transcripts, exhibits, or records from the prior trial or
               hearing; and
               (e) makes other orders as are necessary to the efficient
               management of the case.

Tenn. Sup. Ct. R. 28, § 6(B)(2)-(3). Accordingly, whether it is appropriate for a trial court to
summarily dismiss a petition for post-conviction relief without allowing a petitioner the
opportunity to amend or appointing counsel depends on whether the petition states a colorable
claim. See id.; see also Arnold, 143 S.W.3d at 786-87.




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        Whether a petition states a colorable claim depends on the facts alleged. See Arnold,
143 S.W.3d at 786; Burnett, 92 S.W.3d at 406-07. Our Supreme Court has stated that “[a]
colorable claim is one ‘that, if taken as true, in the light most favorable to the petitioner, would
entitle the petitioner to relief under the Post-Conviction Procedure Act.’” Arnold, 143 S.W.3d
at 786 (quoting Tenn. Sup. Ct. R. 28, § 2(H)). As such, “if the facts alleged, taken as true, fail
to show that the petitioner is entitled to relief, or in other words, fail to state a colorable claim,
the petition shall be dismissed.” Burnett, 92 S.W.3d at 406 (citing T.C.A. § 40-30-206(f)
(2006)). In addition, in determining whether a colorable claim has been presented, “pro se
petitions are to be ‘held to less stringent standards than formal pleadings drafted by lawyers.’”
Gable v. State, 836 S.W.2d 558, 559-60 (Tenn. 1992) (quoting Swanson v. State, 749 S.W.2d
731, 734 (Tenn. 1988)).

       In his petition, the Petitioner asserted that he was entitled to post-conviction relief
because: (1) his convictions were based on a coerced confession; (2) his convictions were
based on a violation of the privilege against self-incrimination; and (3) he received the
ineffective assistance of counsel.

        In a “Memorandum of Law in Support of Petition for Post-Conviction Relief,” filed
with the petition, the Petitioner claimed that Counsel was ineffective for failing to: (1) argue
that the Petitioner was never brought before the magistrate; (2) adequately investigate his case;
and (3) communicate with the Petitioner. Whereas the petition does not state an adequate
factual basis for relief on the basis of ineffective assistance of counsel, the attendant
memorandum alleges sufficient facts to warrant a remand to the post-conviction court on the
ground of ineffective assistance of counsel. Granting the pro se Petitioner due leeway,
accepting all his allegations as true, and viewing them in a light most favorable to him, we
conclude that he stated a colorable claim of ineffective assistance of counsel. As to the
Petitioner’s other grounds for relief, the voluntariness of his plea and a violation of his right
against self-discrimination, those issues were previously determined on direct appeal and thus
not grounds for post-conviction relief. See Tracy Thomas Hepburn, 2010 WL 2889101, at *8.

                                          III. Conclusion

      Having found that the Petitioner presented a colorable claim, we reverse the post-
conviction court’s order summarily dismissing his petition and remand for the appointment
of counsel and further proceedings consistent with this opinion.


                                                        _________________________________
                                                          ROBERT W. WEDEMEYER, JUDGE




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