### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 2000 Session

ROGER HARRIS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Unicoi County No. 4280 Lynn W. Brown, Trial Judge

No. E1999-02056-CCA-R3-PC - Decided July 28, 2000

The petitioner, convicted of first degree murder and reckless endang erment, filed a pro se petition for post-conv iction relief in Ma rch 1995. The pet

ition was amended

several times, fi

rst by th e petitioner, then by the p

ublic defender, and u

ltimately by

private counsel.

The trial court su

mmarily dismissed the petition by order because it was no

t “verified by

any oath or

affirmation.” We

reverse and remand, holding that the original petition w as fi led under a statute that did not require verification by oath or affirmation and, in the alternative, that the affirma tion executed by th

e private counsel is sufficient under the current law.

Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Reversed and Remanded

J OHN E VERETT W ILLIAM S , J., delivered the opinion of the cour t, in which T HOMAS T. W OODALL and A LAN E. G LENN , JJ., joined.

Kenneth J. Irvine

, Jr., Knoxville, Te

nnessee, for the

appellant, Roger

Harris.

Michael E. Moore, Solicitor General, R. Stephen Jobe, Assistant Attorney General, Joe C. Crumley, Jr., District Attorn ey Genera l, and Kenneth Carson Baldwin, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION

Introduction

In June 1991, the petitioner, Roger Harris, was convicted by a Unicoi Cou nty jury of first degree murder and reckless endangerment. The petitioner wa s sentenced to life imprisonment for the murder and to two years incarceration

for the reckless endangerment, and a panel of this Court affirmed those convictions and sentences. See Ro ger Dale Har ris , No. 03C01-9201-CR-00019 (Tenn. Crim. App. filed July 23, 1992, in Knoxville). The pet

itioner’s subsequ

ent petition for po stconviction relief was dismissed when the trial court concluded

that it was not “ver

ified by any

oath

or affirmation” as required by statute, see Tenn. Code Ann. § 40-30-204(e), and from that dismissal1 The trial court originall y refused t

o appoint the priv

ate counsel

until t he petitione

r’s famil y, who had secured that counsel, paid $500 to the public defender’s office for approximately t wenty-five

hours of servi

ces rendered. A panel of this Court re versed and remande d. See Roger H arris v. State , No. 03C01-9712 -CR-00516 (Tenn. Crim. App. fil ed Jan. 28, 1999, at Knoxville).

-2- the petitioner appea

ls. The state agrees that the verification is not necessary in the instant case and further agrees that remand to the trial court for further proceeding s is appropriate. We remand.

Background

In March 1995, the petitioner timely filed a pro se petition for post-conviction relief and amended that petitio n in May 1995. The trial court subsequently appointed an a ttorney from the public defender’s off

ice as counsel, a

nd counsel ame

nded t he petition. In September 1997, the petitioner’s family secured private representation for the petitioner, 1 and that counsel again amended the petition. The petition and amendments assert that the petitioner received ineffective assistance of counsel at trial and appellate level, that the original in

dictment was invalid, and that jury instructions were erroneous. The trial court entered an order deny ing the petition because it was not “verified by oath or affirmation.”

The state agrees with the

petitioner’s first assertion, that the trial court erroneously dismissed the amended petition b

ecause it was not verified

as required by the current statute. The state further agrees that remand to

the trial court

is appropriate. I

n the alternative

, the petitioner a

sserts that this appeal presents three q

uestions of first imp

ression: Does the c

ited statute apply

only to pro se petitions or also to petitions drafted and signed by co unsel; would oath or affirmation satisfy the statutory requ ire men ts a nd; ass umi ng su ch o ath or af fir mat ion is a lwa ys required, what remedy does its absence invoke?

Analysis

Under Tennessee Code Annotated, effective in May 1995, “[t]he petition [for post-conviction relief] and any amended petition shall be verified under oath.” Tenn. Code Ann. § 40-30- 204(e). However, the defendant’s original pro se peti tion was filed in Ma rch 1995, before

that statute became effective, and the

law at that time did not require a verification by oath. Panels of this Court, in decisions cited by the parties, hold that law prior to Ma

y 1995 establishes not only the requirements

for petitions file

d before that dat

e but also for ame

ndme nts , filed after that date, for thos e petitions. See Wright v. State , 987 S.W.2d 26, 28-29 ( Tenn. 1999); Joe Natha n Person v

. Stateof Tennessee , No. 02C01-9806-CC-00175, Tenn. Crim. App. filed Mar. 15, 1999, at Jackson); Gaile K. Owens v. State , No. 0 2C 01-9806-CR-00182 (Tenn. Crim. App. filed Sept. 1, 1999, at Jackson); Sylvester Smi

th v. State
, No. 02C0 1-9801-CR-00018 (Tenn. Crim. App. filed Dec. 28, 1998, at Jackson); Otha Bomar v. Sta te , 01C01-9607-CR-00325 (Tenn. Crim. App. filed Oct. 30, 1997, at Nashville); Terry D. Barber v. Sta

te , No. 02C01-9508-CC-00210 (Tenn. Crim. App. filed June 28, 1996, at Jackson).-3-

T hese cases do not spec

ifically ad

dress this “relat

ing back” in the

context of the oat h requirement. We conclude, however, that the cited precedent establishes the general

principle that amendments

relate back to a

n original petitio

n, filed before M

ay 1995, and

therefore that

the oath requirement

for these amendments, under the prior statute, are unnecessary. See also Tenn. Code Ann. § 40-30-201, Compilers’ Notes, (The current act “shall govern all petitions for post-conviction relief filed after May 10, 1995, and any motions filed after that date to reopen pet iti ons for postconviction relief which were concluded prior to May 10, 1995.”).

Although our holding disposes of the petitioner’s alte rnative argume

nts, we briefly

address those issues. See Jacobs v. State , 450 S.W.2d 581 (Tenn . 1970). First, und er the plain

language of the statute, we believe that th e requirements a

pply to all petitions, not only those filed pro se. See, e.g. , John Willi a m Evans v. State , No. 03C01-9601-CR-00018 (Tenn. Crim. App., filed Aug. 13, 1997, at Knoxville) (The t rial court prope

rly dismisse d, without a hearing, a pro se petition that was amended by appointed

counsel when the petitioner declined an opportunity to verify the amendment under oath.). R egarding the nature of the required affirmation, the current c ounsel did sign and certify that he had investi

gated all of the facts to determine that they were true and correc

t to the best of his knowle

dge and b

elief. We

concl ude that such affirmation satisfies the verification requirement. Finally, the petitioner queries what is the proper remedy should an oath or affirmation be absent or insuffi

cient. Outright a

nd summary di

smissal is likely

not the better course of action. We note that if a pro s

e petitioner has f

ailed to state a fa

ctual basis

for the alleged grounds for relief, the trial court may allow an amendment. See Tenn. Code Ann. § 40-30-206(d). Opportunity for the petitioner, pro se or represented, to affirm under oath would be appropriate. See Evans , No. 03C01- 9601-CR-00018 (Th e tr ial cou rt e xte nde d op por tun ity f or p eti tio ner t o ve rif y amendmen ts under oath.).

CONCLUSION

We reverse and remand this action to the trial court for further appropriate action.

__________________________________ JOHN EVERETT WILLIAMS, JUDGE