### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M ay 6, 2003 JAMES C. BREER

v. STATE OF TEN NESSEE Appeal from the Circuit Court for Henry County No. 13416 Julian P. Guinn, Judge

No. W2002-02545-CCA-R3-PC - F iled July 9, 2003

Th e Appellan

t, James C. B reer, a

ppeals the summary

dismissal o f his pro se petitio n for post

conviction relief. The Henry County Circuit Court dismissed Breer’spetition upon the ground that it failed to state a colorable claim. Tenn. Code Ann. § 40-30-206(f) (1997). After review, we conclude that a colorable claim is presented a n d the post-conviction court erred in dismissing Breer’ s petition without conducting an evidentiary hearing and without appointing counsel. Ac co rd in gl y, we remand for proceeding s consistent with this opinion. Tenn. R. App.P. 3; Judg ment of t he Circui t Court R

eversed and Rem anded. D AV ID G. H AYES , J., delivered the opinion of the court, in which J OE G. R ILEY and J OHN E VERE TT W ILLI AMS , JJ., joined. James Cleveland Breer, pro se , Henning, Tennessee. Pau l G. Summers , Attorne y General and Repor

ter; Mich ael Moor

e, Solicito

r Gener al; John H

. Bledsoe, Ass is tan t At to rne y Gen era l; G. R obe rt R adf ord , Di st ric t At to rne y Gen era l; and St eve n L. Garrett, Assistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION Procedural History The Appellant is currently inc arcerated at the West Tennessee Hig h Security Fa

cility where he is serv ing an ef

fe ct iv e e ig ht -ye ar se nt en ce fo r t hr ee co nv ic ti on s o f a ggr av at ed se xu al ba tt er y. These convictions were affirmed on direct appe al. State v. Jame s C leveland Breer , No. W2001- 00390- CCA-R3- CD (Tenn. Crim. App. at Jackson, Feb. 7, 2002). On August 26, 2002, the Appellan t, procee ding pro se, filed a petition for post- convicti on relief challe nging his convictions upon six separa

te constitutional grounds. Included in the Appe llant’s petition was a request for the appointment

of counsel with an inmate affidavit of indigency attached. On September 6, 2002, the-2-

post-conviction court issued an order summarily dismissing the petition, finding that “no grounds are set forth in support

of a bare conclusionary

allegation of ineffective assistance of counsel or any other grounds cognizable in a post-conviction proceeding.” A petition to reconsider, accompanied by a memorandum of law and a request for appointment of counsel, was filed by the Appellant

and, thereafter, denied.
Analysis “A colorab le cla

im is a cla

im . . . that, i f taken a s true, in the ligh t most favo

rable to pe titioner, would entitle petitioner to relief under the Post-Conviction Procedure Act.” Tenn. R. Sup. Ct. 28, § 2(H). A petitioner esta blishes a colorable claim if he or she allege s facts showing that the conviction abridged a constitutional right and demonstrates that the g round fo r relief was not previous ly

determined or waived. Tenn . C ode Ann. § §40-30-2 03, -206(f); Rickman v. State , 972 S.W.2d 687, 693 (Tenn. Crim. App. 1997) (citi ng Hugh Ronald Carmley v. State , No. 03C01-9305- CR-0 0167 (Te nn. Crim. A pp. at Kno xville, Jan. 13 , 1994)). In c onsidering whet her a pos tconviction petition states a colorable claim for relief, the post-conviction cour t is to tak e the fac ts alleged in the petition as true. Tenn. Code Ann. § 40-30-206(f). In decidi ng w hether a colorab le claim is presented, pro se petitions should be “held to less stringent standards than forma l plea dings drafted by lawy ers.” Allen v. State , 854 S .W.2 d 873, 875 (T enn. 1 993) ( quot ing Swanson v. State , 749 S.W.2d 731 (Tenn. 1988)). Under “ Issue

3" of the Appellan t’s petition, he alleges tha t: [H]e did not personally waive his rig ht to testify at his own trial, and thu s hi s fundamental Constitutional rightto testify was violated, where defense counsel a nd the trial judge neither advised defendant of his rig htto testify

nor discu ssed with h

im the advanta

ges, and disadvantages of testify ing or refraining from testify

ing. (sic) .

. . In th is case, it is appar

ent from t he reco rd that the

petitione r did not pe

rsonally waive th e ri ght to tes ti fy. In fact, the record is clear that counsel unilaterally decided notto call the petitioner as a witness at his own trial. Counsel neither advised, nor discussed the waiver of

t he right. Petitioner contends that had he known of such a right, t he outcom

e of the t rial woul d have been diffe rent. In support of

this arg ument, the

Appellan t cites Momon v. State , 18 S.W.3d 152, 162 (Tenn. 1999). Ad di ti on al ly, within his in effec ti ve a ssistance of counsel claim, the Appellant alleges that trial counsel w as defic ient in the following

respec ts: [F]orthe failure to presenta defence (sic) to the charge against him. And the provisions releva

nt in this ca se was the

failure of couns el to cond uct appr opriate investig ation both factual and legal to determine what matter s of defense are1 The se all egati ons were in clude d wit hin the Appell ant’ s amen ded pet it ion a s aut hori zed by Ten ness ee Code Annotated § 40-30-20 6(d). -3- available, to intervi ew the sta tes witne sses, and

secure informat ion in the possession of the prosecution. 1 Alth ough we find th at the App ella nt’s i neffective assis tance of counsel c laim is only

minimally supported by a factual basis, nonetheless, we conclude that the petition present s a “colo

rable c laim” within the meaning of Rule 28 § 2(H), Rules of the Supreme Court of Tennessee. Based upon our finding of a “colorable claim,”we reverse the post-conviction court’s ruling dismissing the petiti on. Moreo ver, Rule 28, § 6(B )(3)(a

) furthe r provide s that, “I

n the eve nt a colo rableclaim is stated, the judg e shall e nter a pr eliminar y or der whic h [] appoints c ounsel, if petitioner is indige nt.” I n view of the Appellant’s r

equest f or appoin tme nt of cou nsel, with an attached supporting affida

vit of indigency , we remand for a determination of indige ncy and, if f

ound indigen t, appointment of counsel. We remand the case withleave to amend the petition by appointed counsel and for an evidentiary hearing on all colorable claims presented.

___________________________________ DAVID G. HAYES, JUDGE