IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 11, 2015

JOHN C. CRIM v. STATE OF TENNESSEE

Appeal from the Criminal Court for Wilson County

No. 08-CR-567 David Earl Durham, Judge

No. M2014-00948-CCA-R3-PC – Filed April 13, 2015

Petitioner, John C. Crim, appeals the summary dismissal of his petition for postconviction relief for failure to state a colorable claim. After careful review of the parties’ 

briefs, the record, and the applicable law, we conclude that the petition alleged a 

colorable claim of ineffective assistance of counsel, thereby entitling Petitioner to 

appointed counsel and to an opportunity to amend his petition with the aid of postconviction counsel. Additional claims made by Petitioner were previously determined 

during his direct appeal and were, therefore, properly dismissed. Accordingly, the 

judgment of the post-conviction court is affirmed in part, reversed in part, and remanded.

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

Part, Reversed in Part, and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT L.

HOLLOWAY, JR., J., joined. THOMAS T. WOODALL, P.J., filed a separate opinion 

concurring in part and dissenting in part.

Tillman W. Payne, Carthage, Tennessee, for the petitioner, John C. Crim.

Herbert H. Slatery III, Attorney General and Reporter; Meredith Devault, Senior 

Counsel; Tom P. Thompson; District Attorney General; and Thomas H. Swink, Assistant 

District Attorney General, for the respondent, State of Tennessee.

OPINION

Factual and Procedural Background
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Nearly six years ago, on May 27, 2008, Petitioner admitted in an interview with a 

Wilson County Sheriff’s Department detective that he touched his minor daughter “a few 

times each year from the time she was seven.” He admitted to penile-vaginal contact 

with the child nine to twelve times and that she performed oral sex on him four or five 

times and he on her once. State v. John C. Crim, No. M2010-01281-CCA-R3-CD, 2012 

WL 76891, at *1 (Tenn. Crim. App. Jan. 10, 2012), perm. app. denied (Tenn. Apr. 12, 

2012).

Trial counsel filed a motion to suppress this statement. A full and fair hearing was 

conducted after which the trial court found that the interview was not a custodial 

interview and that (1) Petitioner went to the sheriff’s office voluntarily; (2) nothing was 

intimidating about how the detectives were dressed; (3) the Detective told Petitioner that 

he was not in custody and free to leave; (4) Petitioner was not under the influence of 

drugs or suffering from any condition; (5) the conversation was not confrontational; and 

(6) Petitioner freely volunteered the information. See John C. Crim, 2012 WL 76891, at 

*2-3.

After a jury trial for alleged sexual offenses committed against his daughter, 

Petitioner was convicted of eight counts of rape of a child, each a Class A felony, and six 

counts of aggravated sexual battery of a child less than thirteen years old, each a Class B 

felony. He received a total effective sentence of 212 years’ imprisonment from the trial 

court. This Court affirmed the trial court’s denial of Petitioner’s motion to suppress and 

affirmed Petitioner’s convictions on direct appeal, but this Court remanded the case to the 

trial court for a new sentencing hearing. See John C. Crim, 2012 WL 76891, at *1-15. 

Upon remand, amended judgments were entered on February 12, 2013, resulting in a total 

effective sentence of 208 years.

Petitioner filed a pro se petition for post-conviction relief on February 24, 2014, 

seeking relief on the following alleged grounds: (1) use of a coerced confession; (2) use 

of illegally obtained evidence; (3) use of evidence obtained from an unlawful arrest; (4) 

violation of the privilege against self-incrimination; (5) ineffective assistance of counsel; 

(6) illegal evidence; and (7) prosecutorial and judicial misconduct. Through an attached 

appendix, Petitioner additionally alleged that the trial court had improperly excluded 

relevant and admissible evidence in the form of drawings made by Petitioner.

On the same day, Petitioner also filed a document entitled a “Motion to Grant 

Leave to Amend Petition for Post Conviction,” in which he sought the appointment of 

post-conviction counsel. This document was accompanied by a pro se “Supplemental 

Brief in Support of Petition for Post-Conviction Relief.” In this lengthy document, 

Petitioner provides the factual bases and legal authorities purportedly supporting his 

claims.
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On April 9, 2014, the post-conviction court entered a preliminary order denying 

post-conviction relief without appointing counsel or holding an evidentiary hearing. The 

post-conviction court concluded that Petitioner had not alleged a colorable claim for 

relief. Specifically, the post-conviction court found that all but two of Petitioner’s 

grounds for post-conviction relief had been previously adjudicated during the direct 

appeal. The court determined that the allegations of prosecutorial and judicial 

misconduct were “without any factual basis.” Additionally, the court concluded that the 

facts alleged to support the ineffective assistance of counsel claim would not entitle 

Petitioner to relief, even if true. Petitioner filed a notice of appeal on May 9, 2014. On 

May 23, 2014, the post-conviction court appointed appellate counsel to assist Petitioner 

with his appeal of the preliminary order denying relief.

Analysis

An appellate court’s review of a summary denial of a petition for post-conviction 

relief is de novo. Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004) (citing Burnett v. 

State, 92 S.W.3d 403, 406 (Tenn. 2002)). Post-conviction relief is available for any

conviction or sentence that is “void or voidable because of the abridgment of any right 

guaranteed by the Constitution of Tennessee or the Constitution of the United States.” 

T.C.A. § 40-30-103. The first thing that a post-conviction court must do upon receiving a 

petition is to conduct a preliminary review to “determine whether the petition states a 

colorable claim.” Tenn. Sup. Ct. R. 28, § 6(B)(2). A colorable claim is one “that, if 

taken as true, in the light most favorable to the petitioner, would entitle petitioner to relief 

. . . .” Id. § 2. If a petition fails to state a colorable claim, the post-conviction court must

dismiss the petition. Id. §§ 5(F)(5), 6(B)(4)(a); see also T.C.A. § 40-30-106(d) (where 

the factual allegations within a petition, “taken as true, fail to show that the petitioner is 

entitled to relief . . . , the petition shall be dismissed”).

However, if a petition is filed pro se, then the post-conviction court may grant the 

petitioner an opportunity to amend the petition to properly allege a colorable claim. 

T.C.A. § 40-30-106(d). If the pro se petition remains incomplete after a chance to 

amend, the post-conviction court may then appoint an indigent defendant counsel. 

T.C.A. § 40-30-106(e). Although the decision to afford an opportunity to amend or to 

appoint counsel to help complete the petition is within the discretion of the postconviction court, a post-conviction court does not have the authority to dismiss a pro se 

petition “for failure to follow the prescribed form until the court has given [the] petitioner 

a reasonable opportunity to amend the petition with the assistance of counsel.” Tenn. 

Sup. Ct. R. 28, § 6(B)(4)(b). Furthermore, if the post-conviction court determines that 

the petition of an indigent pro se petitioner states a colorable claim for relief, the 

petitioner is then entitled to the assistance of appointed counsel. Id. § 6(B)(3)(a); see also

T.C.A. § 40-30-107.
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A petition for post-conviction relief “shall include allegations of fact supporting

each claim for relief set forth in the petition . . . .” T.C.A. § 40-30-104(e); Tenn. Sup. Ct. 

R. 28, § 5(E)(4)-(5). Put differently:

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.

T.C.A. § 40-30-106(d). Also, the allegations of fact supporting any ground for relief 

alleged in a petition must include “a description of how [the] petitioner was prejudiced by 

the error(s).” Tenn. Sup. Ct. R. 28, § 5(E)(3). Proper drafting of a petition for postconviction relief is crucial because “[f]ailure to state a factual basis for the grounds 

alleged shall result in immediate dismissal of the petition.” Id.; Tenn. Sup. Ct. R. 28, § 

5(F)(3).

When making a colorable claim determination, the post-conviction court should 

look only to the factual allegations in the petition. “An independent review of the 

transcript of the [relevant proceeding] and conclusive determination that the petition was 

without merit are not permissible. The preliminary stage is not the appropriate forum for 

adjudication of the facts of the case.” Charlton v. State, 987 S.W.2d 862, 865 (Tenn. 

Crim. App. 1998) (approving of Loring C. Warner v. State, No. 03C01-9610-CR00407, 

1998 WL 22072 (Tenn. Crim. App. Jan. 23, 1998), perm. app. denied (Tenn. Nov. 2, 

1998), and Garry E. Collins v. State, No. 01C01-9603-CR-00120, 1997 WL 110016 

(Tenn. Crim. App. Mar. 13, 1997)). This remains true even though a petitioner’s factual 

allegations “may be exceedingly difficult to prove” or “it is unlikely that a petitioner 

could adequately establish the violation of his constitutional rights.” Waite v. State, 948 

S.W.2d 283, 285 (Tenn. Crim. App. 1997). In Hayes v. State, 969 S.W.2d 943, 944 

(Tenn. Crim. App. 1997), this Court observed:

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 the other matters 

contained in the record.

Similarly, in Roosevelt Malone v. State, No. E2002-00782-CCA-R3-PC, 2003 WL 

21145488, at *2 (Tenn. Crim. App. May 16, 2003), a panel of this Court provided the 

following explanation:
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The State argues . . . that although Petitioner would be entitled to relief if 

his allegations are taken as true, it is evident from the record that Petitioner 

has little chance of succeeding on the merits of his claims in an evidentiary 

hearing. Although the State does not cite any authority that supports its 

argument, the State contends that the post-conviction court may properly 

dismiss the petition if it appears from the record that Petitioner ultimately 

will not be able to prove his allegations by clear and convincing evidence.

We respectfully disagree. . . . In this case, . . . the post-conviction 

court dismissed the petition, not because Petitioner did not state a colorable 

claim, but because it appeared to the post-conviction court that ultimately 

Petitioner would not be able to prevail in an evidentiary hearing. The 

reason for dismissal relied upon by the post-conviction court is not one of 

the statutory reasons for dismissing a post-conviction petition without an 

evidentiary hearing.

Accord Gregory D. Valentine v. State, No. M2014-00977-CCA-R3-PC, 2015 WL 

274181, at *7 (Tenn. Crim. App. Jan. 21, 2015) (noting that “the 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” (quotation and citation omitted)); 

Michael Keith Kennedy v. State, No. W2003-02824-CCA-R3-PC, 2005 WL 645164, at 

*5 (Tenn. Crim. App. Mar. 16, 2005); Carl Johnson v. State, No. W2003-02760-CCAR3-PC, 2005 WL 181699, at *3 (Tenn. Crim. App. Jan 25, 2005), perm. app. denied

(Tenn. June 27, 2005); William Alexander Cocke Stuart v. State, No. M2003-01387-

CCA-R3-PC, 2004 WL 948390, at *3 (Tenn. Crim. App. May 4, 2004); see also Amin 

Shabazz v. State, No. M2002-01302-CCA-R3-PC, 2003 WL 354511, at *1-2 (Tenn. 

Crim. App. Feb. 14, 2003).

In this case, Petitioner’s primary contention is that he received ineffective 

assistance of trial counsel. To allege a colorable claim for post-conviction relief based 

upon ineffective assistance of counsel, a petitioner must sufficiently assert the elements 

of deficient performance and prejudice. Gable v. State, 836 S.W.2d 558, 560 (Tenn. 

1992); see Strickland v. Washington, 466 U.S. 668, 687 (1984); Burnett v. State, 92 

S.W.3d 403, 408 (Tenn. 2002). In support of his claim of ineffective assistance of 

counsel, Petitioner has alleged several errors on the part of trial counsel during both the 

suppression hearing and trial, and he alleges the specific prejudicial effect that these 

errors had upon his defense. Petitioner’s claims are more than bare allegations and mere 

conclusions of law. 

For example, Petitioner alleges that his trial counsel was ineffective for failing to 

thoroughly investigate the scene and circumstances of his interview and that he was 

prejudiced thereby because the motion to suppress his statement was denied and the 
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evidence was admitted against him during trial. See John C. Crim, 2012 WL 76891, at 

*5-6. According to Petitioner, had trial counsel properly investigated and prepared for 

the suppression hearing, trial counsel would have made a much stronger showing to the 

trial court that a reasonable person would not have felt free to leave the interview under 

the circumstances and, therefore, Petitioner should have been considered in custody for 

Fifth Amendment purposes, thus requiring suppression of his statement. Trial counsel’s 

failure to adequately prepare for a dispositive motion hearing or to investigate the 

circumstances of a potentially unconstitutional interrogation can be the basis for a claim 

of ineffective assistance of counsel. See Goad v. State, 938 S.W.2d 363, 369 (Tenn. 

1996) (“Defense counsel must investigate all apparently substantial defenses available to 

the defendant and must assert them in a proper and timely manner.”). Petitioner also 

alleges that trial counsel improperly prevented him from testifying at trial and failed to 

thoroughly investigate and cross-examine the victim and the victim’s mother. Petitioner 

alleges that these failures also had an impact on the outcome of his trial. Taking all of the

Petitioner’s allegations as true without regard to their ultimate success or failure, see

Hayes, 969 S.W.2d at 944, Petitioner has properly alleged both deficient performance and 

prejudice and, thereby, has made out a colorable claim of ineffective assistance of 

counsel. Therefore, we reverse the decision of the post-conviction court with regard to 

these claims and remand the case for the appointment of counsel and the opportunity for 

the Petitioner to file an amended petition.

The post-conviction court concluded that Petitioner’s other alleged grounds for 

relief had been previously adjudicated in the direct appeal. Petitioner does not challenge 

this finding. A petition may be dismissed if it raises issues that have been previously 

determined or that have been waived. Tenn. Sup. Ct. R. 28, § 2(D)-(E); see also T.C.A. § 

40-30-104(e). “A claim for relief is previously determined if a court of competent 

jurisdiction has ruled on the merits of the claim after a full and fair hearing at which 

petitioner is afforded the opportunity to call witnesses and present evidence.” Tenn. Sup. 

Ct. R. 28, § 2(E); see also T.C.A. § 40-30-106(h). Petitioner’s claims with regards to the 

allegedly unlawful arrest, coerced confession, and illegally obtained evidence were 

previously determined by the trial court at the motion to suppress hearing and affirmed by 

this Court on direct appeal. See John C. Crim, 2012 WL 76891, at *9. Therefore, we 

affirm the post-conviction court’s dismissal of these claims.

1

Conclusion

The petition and accompanying documents state the single colorable claim of 

ineffective assistance of trial counsel for post-conviction relief purposes. The postconviction court erred in failing to appoint counsel and in failing to provide an 

opportunity for Petitioner to amend his petition. Therefore, this matter is remanded to the 

 

1 On appeal, Petitioner construes his claims of judicial and prosecutorial misconduct as a 

supporting basis for his ineffective assistance claim. It may be treated as such on remand or properly 

submitted as a separate ground for relief in an amended petition.
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post-conviction court for appointment of counsel, an opportunity to amend his petition 

and an evidentiary hearing on the single claim of ineffective assistance of counsel.

_________________________________

TIMOTHY L. EASTER, JUDGE