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

Briefs M arch 19, 2003
ROOSEVELT MALONE v. STATE OF TEN NESSEE
Direct Appeal from the Criminal Court for K nox County No. 73940 Mary Beth Leibowitz, Judge

No. E2 002-0 0782- CCA-R3 -PC May 16, 2003 Petitioner, Roosevelt Malone, appealsthe post- convicti on court' s dismissal of his petition f

or postconviction relief. Petitioner contends that the post-conviction court erred when it failed to conduct an evidentiary he aring and failed to grant Petitioner suff icient time to amend his petition. Upon review of this matter, we reverse the judgment of the post-conviction court a nd remand this case for proceedings consistent with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Remanded
T HOM AS T. W OODA LL , J., delivered the opinion of the court, in which D AVID G. H AYES and J OHN E VERE TT W IL LI AMS , JJ., joined. Roosevelt Malone, Whiteville, Tennessee, pro se
. Paul G. Summers , Attorne y General and Repor

ter; J. Ross D ye

r, Assista nt A tt or ne y G eneral; and Randall Eugene Nichols, District Attorney General, for the appellee, State of Te nnessee.
OPINION
On September 12, 2001, Petitioner pled guilty to two counts of robbery and one count of driving while classified as a motor v ehicle hab itual off ender. P ursuant t o a plea a

greem ent, Petitioner was sentenced to three y ears for each of the robber y convictions and on e yea r for the Motor Vehicle Habitual Offend er Act vi olation. T

he trial c ourt accep ted the plea agreement and ordere d the sent

ences to be serve d consecutively

for an effectiv e sentence of seven years.
On January 8, 2002, Petitioner filed a pro se petition for post-conviction relief alleging that his counsel rendered ineffective as sistance

of counse

l during the plea negotia tions. I n gene ral, Petitioner contends that his counsel inadequately a nd improperly explained the proceedings leading up to his entry of a plea

of guilty. Specific ally , Petitione r conten ds that his counsel misled Petitioner to believe that he wo

uld be g ranted p robation if he signed the plea

agree ment and f

ailed to p roperly advise him that he would hav e to serve his sentence in the penitentiary rather than on probation.

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Petitioner attached an affidavit of

indigency

to his petition and requested an evidentiary hearing. The record does notindicate

whether Petitioner

request ed the ap pointment o f counse

l to assist h

im in his petition.
The post-conviction court summarily dismissed Petitioner's petition for po st-conviction relie f on March 18 , 2002. Du

ring pr eliminar y c onsidera

tion of the

petition, t

he post- convic tion court found that normally Petitioner's c laims as to the ineffe ctivene ss of coun sel would p resent a colorab le claim for relief. Based upon a

review of the guilty plea submission hear ing transcript, however, the post-co nviction c ourt conc luded tha t Petitione

r was ad equatel y a pprized of

the fac t that he w ould have to serve his sentence in prison, that he voluntarily signe d the plea agreement, and that Petitioner received the benefit of his plea agreement. Be cause the transcript contradicted Petitioner 's clai ms, the post-conviction court dismissed Petitioner's petition for post-convictionrelief. Petitioner filed his notice of appeal on April 1, 2002.
The review and disposition of post-conviction petitions is governed by the provisions of the Post-Convi ction Procedure Act of 1995. Tenn. Code Ann. §§ 40-30-201 to -310. See Burne tt v

. State , 92 S .W .3d 403 (Te nn. 200 2). If the face of the petition clearly indicates that the petition was notfiled in th

e court o f convic tion, or un timely filed, or a prior p etition ch alleng ing the s ame conviction was pr ev io us ly determined on the m erits or i s pending

in anothe

r forum, the postconviction court may dismiss the petition without an evidentiary hearing. Tenn. Code Ann. § 40-30- 206(b), (c). I

n addition , the petition may be summar

ily d ismissed if

it fails to state a f actual b asis for the alleged grounds. Id. at -206( d). Howe ver, if the petiti on is filed pro se, the post-conviction court may allow the petitione r fiftee n day s to amend

the petiti on to co mp ly w ith the fa ctual ba sis require ment. Id. If the amended petition is still incomplete and the petitioneris indige nt, the pos tconviction c ourt may appoint counsel to re present the petitioner in the proceeding and a mend t h e petition. Id. at -206(e), -207. Once the amended pe tition is received, the post-conviction court may dismiss the

petition w ithout a he aring “if the facts, taken as true, fail to show that the petitione r is entitled to relief or fail to show that the claims for relief ha ve not b een wai ved or pr eviously determined.” Id. at -206(f).
In its brief, the State concedes that the basis fo r the post

- conviction court’s dismissal of Petitioner’s petition f

or post-c onviction

relief i s not included am ong the statutory reasons for summarily

dismissing a petition. The State argues, however, that althoug h Petitioner wo uld be entitled t o relief if his allega

tions are taken astrue, it is evident from the record that Petitioner has littlechance of

succee ding on th

e merits o f his clai ms in an evidentiar y he aring. Although the State does not cite any authority that supports its argument, the State contends tha t the post-c onviction court ma y pr operly dismiss the

petition if

it appears from

the rec ord that Pe

titioner ultimately

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

. We respectfully disa

gree. I n considering whether a petition presents a co lorable claim for relief, the po st-conv iction court is to take the facts as true. See Tenn. Code Ann. § 40-35-206(f). A “colorable claim” is one “that if taken as true, in the lig ht most favorable to petitioner, w ould entitle petitioner to relief under the Post-Conviction Procedure Act.” Tenn. R. Sup. Ct. 28, § 2(H).

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A petitioner establishes a colora ble claim if he or she alleges facts showing that the conviction ab ri dged a constitu

tional rig ht and dem

onstrate s that the g

round for relief w as not pre

viously determinedor waived. Tenn. Cod e Ann. §§ 4 0-30-203 , -206(f ); Rickman

v. State , 972 S.W.2d 687, 693 (Tenn. Crim. App. 1997)(citing Carmley v. State , No. 03C01- 9305-CR-0 0167 (Te nn. Crim. App., Knoxville, January 13, 1994). A claim of ineffe ctiveness of counsel that violates a petitioner’s Sixth Amendment right to counsel may be the basis for

a colorable claim to post-conviction relief. See Burnett v . State , 92 S.W.3d 403, 408 (Tenn. 2002). A petition for post-conviction relief, however, may state a c olorable claim but still require dismissal if the petitioner does not allege any specific facts e s tablishing that his or her counsel’s performance was deficient or prejudicial. Id. ; Tenn. Code Ann. § 40-30-206(d). In this case , however, the post-conviction court d ismissed the petition, not because Petitioner did not state a colorable claim, but because it appea red to thepostconviction court t

hat u ltim ately Pet itio ner wou ld no t be ab le to p revail in an e viden tiary hear ing. The reason for dismissal relied upon by the post-conviction court is not one of the statutory rea sons for di smis sing a p ost-c onvi ction petit ion wi thou t an ev ident iary heari ng.
The petition f

or post-c onviction

relief p resents a colora

ble claim for relief. See Tenn. Sup. Ct. R. 28, § 2(H). Accordingly , we reverse the judgment of the post-c onviction court and remand this case for an evidentiary hearing and for other proce edings under thePost-Conviction Procedure Act including the inves tigation as to whether Petitioner is entitled to appointed counsel and the opportunity to amend the petition for post-conviction re lief.
CONCLUSION
For the foregoing reasons, the judgment of the post-con

viction c ourt is re

versed a nd this ca se is remanded for proceedings c onsistent with this opinion.

___________________________________ THOMAS T. WOODALL , JUDGE