IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 13, 2010 Session

RODNEY M. BUTLER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Madison County

No. C09-144 Donald H. Allen, Judge

No. W2009-02183-CCA-R3-PC - Filed March 28, 2011

Petitioner, Rodney M. Butler, appeals pro se after the Madison County Circuit Court

summarily dismissed his post-conviction petition seeking relief from his guilty plea to

driving under the influence, fourth offense, a Class E felony, for which he received a threeyear sentence with a 35 percent release eligibility. We conclude that Petitioner should have

been afforded an evidentiary hearing, and for the reasons stated herein, we reverse the

judgment of the post-conviction court and remand this matter for further proceedings

consistent with this opinion.

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

Judgment of the Circuit Court Reversed and Remanded

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Rodney M. Butler, Jackson, Tennessee, Pro Se.

Robert E. Cooper,Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; James G. (Jerry) Woodall, District Attorney General; and Alfred L. (Al) Earls,

Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

The record before us is sparse at best. Not included in the record on appeal are the

judgment of conviction, a transcript from the guilty plea hearing, or a transcript from

proceedings in the post-conviction court, at which the court apparently heard legal

arguments, but no evidence, on August 17, 2009. What is included in the record are

Petitioner’s pro se petition for post-conviction relief, the State’s response and motion to
dismiss, Petitioner’s motion for the post-conviction court’s recusal, Petitioner’s motion for

discovery and production of documents related to his 1992 and 1993 DUI convictions, the

written order denying post-conviction relief, and an affidavit from the clerk of the trial court

stating that the documents related to Petitioner’s 1992 and 1993 convictions as well as other

requested documents had not been filed with the clerk’s office.

The State contends that Petitioner has waived the issues on appeal because he has

failed to provide a record that conveys “a fair, accurate and complete account of what

transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b).

We disagree. However sparse, we are able to discern from the record what occurred at the

trial court level.

According to the pro se post-conviction petition and the trial court’s “preliminary

order” dismissing the petition, Petitioner pled guilty on May 15, 2008, to the offense which

is the subject of the post-conviction proceedings. Both documents indicate that Petitioner

was represented by counsel at the time he pled guilty. On May 15, 2009, Petitioner filed his

pro se petition for post-conviction relief. Six days later, on May 21, 2009, an Assistant

District Attorney filed a pleading designated as “State’s Response and Motion to Dismiss.”

Generally, the State’s response denied that Petitioner was entitled to relief, but the response

failed to list any specific factual ground for the trial court to dismiss the petition without an

evidentiary hearing. In part, the State asserted that,

The State denies the allegations of the petition and demands

strict proof thereof.

The State will rely upon waiver and previous determination of

the issues. T.C.A. § 40-30-102 et. seq.

The State will rely upon all applicable statutes of limitations.

T.C.A. § 40-30-102 et. seq.

Later in its response, the State asserted that it “objects to the broad generalizations of

deficient performance. The petitioner is sand bagging in an attempt to obtain a trial by

ambush. The petitioner has not made any assertion of fact to support his claims.”

While the pro se petition is typewritten, the spacing, or lack thereof, of letters and

words throughout the document presents a slight challenge in reading it. However, the

properly sworn petition states that the proceedings concern a DUI conviction in Madison

County Circuit Court in case no. 08-16 on May 15, 2008. It alleges Petitioner received a

sentence of three years, clearly implying the conviction was for felony DUI. The petition

-2-
states that Petitioner was represented in the felony DUI proceedings by an assistant public

defender for the 26 Judicial District.

th

Within the petition, it is specifically alleged that “Petitioner believes that he was

denied effective assistance of counsel. . . .” Although scattered throughout the petition, and

arguably not presented with the best organizational skills, Petitioner alleges various failures

by his attorney that can be generally categorized as follows:

(a) Counsel did nothing to prepare a sufficient defense prior

to the negotiated plea agreement;

(b) Counsel implicitly failed to file and present pretrial

motions requested by Petitioner, and failed to investigate

facts that could have negated or greatly mitigated

Petitioner’s culpability;

(c) Counsel refused to present a constitutional challenge to

the State’s use of Petitioner’s prior DUI convictions;

Petitioner also asserts constitutional grounds for relief which are independent of

allegations of ineffective assistance of counsel. Petitioner furthermore asserts facts in

support of his argument that these grounds are not waived or previously determined pursuant

to Tennessee Code Annotated section 40-30-106. Petitioner also filed a motion for discovery

from the State and for Judge Donald Allen to recuse himself. On September 1, 2009, the trial

court clerk filed an order of the post-conviction court, Judge Allen, designated “Preliminary

Order (No Colorable Claim).” Apparently legal arguments, but no evidence, were heard in

court on August 17, 2009. The entire body of the order is as follows:

PRELIMINARY ORDER

(NO COLORABLE CLAIM)

After examination of the petitioner’s “Post Conviction

Petition for Relief from Sentence or Conviction,” filed May 15,

2009, and after examination of the State’s response to such

Motion filed May 21, 2009, and after examination of the files,

records, transcripts, and correspondence relating to the judgment

under attack, and after arguments heard in this matter on August

17 , 2009, this court finds as follows:

th

-3-
(1) the petitioner’s “Motion for Recusal” is

denied, based upon his arguments that he

has “no problem” with this Judge hearing

this matter.

(2) The petitioner’s “Motion for Discovery

and Production” is granted, and agreed to

by the State.

(3) The Petition shall be dismissed for failure

to assert a colorable claim based on the

following findings of fact and conclusions

of law:

(a) The petition fails to include

allegations of facts to

support his claim of

ineffective assistance of

counsel.

(b) The Court has previously

ruled that the petitioner’s

guilty plea in this case was

“ f r e e l y , v o l u n t a r i l y ,

knowingly and intelligently

entered,” on May 15 , 2008,

th

and that the defendant stated

under oath at the time of his

guilty plea that he was

“ s a tisfi e d ” w it h h is

attorney’s representation.

(c) The petition raises an issue

that has been previously

determined by this Court or

has previously been waived.

(d) The petition fails to include

allegations of facts that the

petitioner was prejudice[d]

-4-
by de f ense counsel’s

performance.

As to the post-conviction court’s four reasons for summarily dismissing the petition

without an evidentiary hearing, we have set forth above what we conclude are at least

minimally sufficient factual allegations of ineffective assistance of counsel in order to avoid

summary dismissal. The trial court did not specify the issue “that has been previously

determined by this Court or has previously been waived,” therefore, that is not a valid reason

for summary dismissal. Apparently, the post-conviction court accepted Petitioner’s guilty

plea, and in that proceeding determined the plea was freely, voluntarily, knowingly, and

intelligently entered. While this determination at the time of the guilty plea is required in

order to accept the plea, see Tenn. R. Crim. P. 11(b); see also Lane v. State, 316 S.W.3d 555

(Tenn. 2010), that alone has never been grounds to conclusively determine that a postconviction petition must be summarily dismissed. Also, Petitioner’s statement under oath

at the guilty plea hearing that he was “satisfied” with his attorney’s representation, while

perhaps compelling evidence contrary to testimony of deficient representation in a postconviction hearing, does not equate to a legal determination that counsel rendered

constitutionally effective assistance of counsel. At the time of a guilty plea, a defendant who

knows not better, might be “satisfied” with his or her counsel’s representation, and later

discover that the representation was constitutionally ineffective.

As to the final reason given by the post-conviction court, Rule 28, § 5(E)(3) of the

Rules of the Supreme Court of Tennessee, provides that each petition for post-conviction

relief must contain “each and every error that Petitioner asserts as a ground for relief,

including a description of how petitioner was prejudiced by the error(s).” Petitioner alleges

in his petition that the offense for which he was convicted should have not been more serious

than a misdemeanor, rather than the felony to which he pled guilty. Again, at a minimum,

this is sufficient to satisfy Rule 28, § 5(E)(3).

Rule 28 §5(D) of the Rules of the Supreme Court of Tennessee states in part that

“[t]he petition for post-conviction relief shall be substantially in the form set forth in the

appendix [to Rule 28].” The appendix provides that the form “shall be available . . . to any

potential petitioner in the office of the clerk of court for any court of record with criminal

jurisdiction.” Tenn. S.Ct. R.28, Appendix A. Upon remand, Petitioner should be given the

opportunity allowed by statute to file an amended petition that is in the form set forth in the

appendix to Rule 28. See Tenn. Code Ann. § 40-30-107.

Based upon our analysis, we conclude that the judgment of the post-conviction court

summarily dismissing the petition should be reversed, and that this case must be remanded

for further proceedings consistent with this opinion, including an evidentiary hearing.

-5-
CONCLUSION

We reverse the post-conviction-conviction court’s order dismissing the petition, and

remand this matter for appointment of counsel if required, an opportunity to amend the

petition by filing it in the proper form, and for other proceedings, including an evidentiary

hearing, as required by law.

__________________________________

THOMAS T. WOODALL, JUDGE

-6-