# FILED

Au gust 13, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE JULY 1996 SESS ION
JOHN WI LLIAM EVANS ) ) C.C.A. NO. 03C01-9601-CR -00018 Appellant ) vs. ) Knox Cri minal ) STATE OF TENNESSEE ) Honorable Mar y Beth Leibow itz ) Appellee ) Post-Conv iction Rel ief

For Appellant : For Appellee: John E. Eldridge Charles W. Burson 606 W. Main Ave., Suite 350 Attorney Gen eral and Repor ter P.O. Box 84 Knoxvil le, TN 37901-008 4 Robin L. Harris Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-049 3 Randall E. Nichols Distric t Attorney General Robert L. Jolley, Jr. Asst. Dist rict Attor ney General City-C ounty Build ing Knoxvil le, TN 37902

OPINION FILE D_____________ AFFIRMED WILLIAM M. DENDER, SPEC IAL JUDGE
OPINION2 On February

15, 1995, the appell ant pled guil ty to agg ravated ass ault, and he was sentenc ed to three years as a Rang e 1 Offender. On June 8, 1995, appellant fil ed a pro se petiti on for post-conv iction rel ief. Attorney John Eldridg e was appoin ted as counsel for appell ant, and he filed an amendment , which w as not veri fied under oath, to the appellant's

petition on Sept ember 7, 1995. A hear ing was held concerni ng the petition on September

11, 1995, and the tr ial judge took the case under advisement. An Order and Findings of Facts and Con clusions of Law, which dismissed appellant's petition w ithout an evi dentiary he aring and w ithout requi ring the St ate to respond, w as filed on September 28, 1995. This is hi s appeal as of ri ght from the judg ment of the trial cour t.

The sole issue i s whether the trial j udge properl y dismiss ed the petition forpostconvicti on relief w ithout an evi dentiary he aring and w ithout requi ring the St ate to respond. The judg ment of the trial court is affirmed.

FACTS
The petition for post -convic tion relief was filed on a form pr omulgated under the law that was in effect before May 10, 199 5, and it asserted two grounds for relief: (1) the involunt ariness of his guilty plea, and (2) ineffective as sistance of counse l. The facts alleged in the orig inal petitio n to support the above gro unds for relief are, "No one would li sten to my si de of the story . No wit ness. Nothingwas dis cuss what was goi ng to happen before the case came up. Was confused about the plea."3 The Post-Conv iction Rel ief Procedure Ac t gover ning this case took effect on May 10, 1995.
Appointed counsel filed an amendment to appel lant's pro s e petition, and t he matter came on to be heard on September 11, 1995. Due to i nadvertence, the 30 day period in w hich the tri al court is required to act had elapsed ; howeve r, appellant ha s not complained, and we do not consider such to be si gnificant in this case. The S tate pointed out that thefacts alleged in the orig inal petitio n as the basis for the alleged grounds were insufficient, and that the amendment was not veri fied under oath. The trial court gave the appellant an opportun ity to verify the amendment under oat h, in order for the amendment to be considere d; but counsel for the appellant, after consultation w ith the appellan t, declined to place the appell ant under oath and ag reed that the court could rule upon t he petition as fil ed. The record r eveals that appellant was under i nvestig ation for first de gree murder in another caseat the time of the hearing on Sep tember 11, 1995, and t hat Attorney Eldridge had also been appoin ted to represent appellant in that matter.

In the wri tten Order and F indings of Fac ts and Conclus ions of Law fil ed by the trial cour t, the court found th at appellant had not complied w ith the Act effective May 10, 1995, and that the petition did not state a f actual basis for the alleged grounds.

ANALYSIS AND HOLDING

Acts 1995, ch. 20 7, § 3, prov ides that such act, whic h repealed the former chapter and enacted the current Post-Conviction Procedure Act, shall govern all petitions for post-convic tion relief fil ed after May 1 0, 1995, and any motions filed after that date to reopen petitions for post-convic tion relief w hich were concluded pri or to4

May 10, 1995.
Portions of T.C.A. § 40 -30-206 are as follows: (d) The petiti on must contain a c lear and speci fic statement of all grounds upon which relief is sought, including full disclosure of the factual basis of tho se grounds. A bare allegation that a constitut ional right has been violated and mere conclusions of law shall not be sufficient to warrant any further pr oceedings. Failure to state a factual basi s for the grou nds alleged shall resul t in immediate dismissal of the petition. If, however, the pet ition was filed pro se, t he judge may enter an order stating that the petitioner

must file an amended peti tion that complies w ith this sec

tion wit hin fifteen (15) day s or the petit ion wil l be dismissed. (e) If a petiti on amended in accor dance with subsection (d ) is incompl ete, the court shall determine w hether the petiti oner is indi gent and in need of counsel. The Court may a ppoint counsel a nd enter a prel iminary or der if necessar

y to secure the fili ng of a complete peti tion. Counsel may file an amended petition within t hirty ( 30) day of appoin tment. (f) Upon rec eipt of a petition in proper form, or upon receipt of an a mended petition, the court shall ex amine the alleg ations of fact in the petition. If the fact s alleged, tak

en as true, fail to show that the petitioner

is entitled to relief or fail to show that th e claims for relief have not b een waived or prev iously det ermined, the petition shall be dismissed. The order of dismissal shall set f orth the court's conc lusio ns of law.
We hold that the facts alleged to support the g rounds for reli ef are insufficient. Counse l had be en app ointed and had filed a n amen dment to the pe tition t o allege additional facts to support the g rounds for reli ef, but the amendment wa s not veri fied under oath. T.C.A. § 40-30-204 (e ) states, "The peti tion and any a mended petition shall be verified under oath ." The appellant was given the opportunity to verify the amendment to the petiti on under oath, but heelected not to do so. The orig inal petition must stand on its ow n, and it fails to state a color able claim for r

elief. In accordance with T.C.A. § 40-30-206 (f) above quoted, the trial court was correct is dismiss ing the pe tition with out an e videntia ry hearing.

In order to dec ide this appeal it is not necessary for us to revi ew the tran script of5

the hearing w here the appellan t pled guil ty to agg ravated ass ault; however, a rev iew thereof leads us to

the conclusi on that appellant' s guilty plea was freely, voluntarily , and knowingly given. He w as also advised that his conviction could be used against h im in the sentencing stage for any future criminal convicti ons; and this pos sibility was specifically

discussed i n relationshi p to the possibi lity that appellant would be indict ed for first degree murder in anot her case w hich was currently under inve stigation.

For the reasons stated herein, th e trial court is affirmed, and the case is remanded to the trial court f or all necessary proceedings not inconsistent with this opinion.

________________________________ W illiam M. De nder, Sp ecial Jud ge

CONCUR:

__________________________________ Joseph B. Jones , Presidi ng Judge

__________________________________ David G. Haye s, Judge