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

Briefs A ugust 6, 2002
MONTEZ A NTUAN ADA MS v. STATE OF TE NNESSEE
Appeal from the Circuit Court for Madison County No. C-99-28 Clayburn Peeples, Judge

No. W2001-02488-CCA-R3-PC - F iled January 9, 2003

The petit ione r Mon tez Antua n Adams, a

ppeals the Madison

County Circuit Cou

rt’s den ial of his petition for

post-con viction re lief. He contendsthat the tr

ial cour t improper

ly determin ed that he did notsufficiently alleg e fac ts to suppor t one of hi s claims a nd imprope

rly struck the claim f

rom his amended petition. We remand the case for another evidenti ary

hearing in order for the p etitioner

to present evidence regarding

the dismissed claim and for the trial court to mak e appro priat e find ings of fact consistent with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Revers ed, Case Remanded

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined.

A. Russell

Lar son, Jackso n, Tenne ssee, fo r the app ellant, Mo ntez Antua n Adams.

Paul G. Summers, Attorney Gene ral and Reporter; Renee W. T urner, A ssistant A

ttorney Genera l; James G. Woodall, District Attorney Gener al; and Alfred L. Ear

ls, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

This case relates to the petitioner and his two codefe

ndant’s s hooting a

nd killing the victim during a burglary

of the victim’s home in September 1996. The record reflects that all three defenda nts were charged with seve ral crimes, including first degree felony murder , and tried together. In a pretrial hea ring, the defendants’ attorney s asked the trial court to instruct the jury on lesser included offenses of felony murder, but the trial court refused. A jury convicted the defenda nts of fel ony murde r, esp ecial ly aggravate d burgl a ry , conspir acy to commit e special ly aggravated

burglary , and theft of property valued more than five hundred dollars, and the trial court sentenced the petiti oner as a

Range I I off ender to life, twe nty ye ars, eig

ht y ears, a

nd four y ears, re sp ec ti ve ly. The trial court ordered that the latter three sentence s run concurrently to each other but-2-

consecu tively to the life sentence. The petitioner’s trial attorney also represented him on a ppeal

. The attorne

y di d not raise

the lesser included offenses issue, and this court affirme d the petitioner’s convictions for felony mur der, conspiracy , and theft. See M ontez Antua n Adams v. State , No. 02C01-9709-CC-00352, Madison County (Tenn. Crim. App. Sept. 1, 1998 ), app. denied (Tenn. Apr. 5, 1999). Ho wever, this cour t m odified th e petitioner’s conviction for especially aggravated burg

lary to aggravated burglary and r esentenced him to ten y ears for that conviction.

The petitioner filed a pro se pe tit ion for post-conviction relief, which was amended by appointed counsel. In the petition, t he petitione r raises several ineffective a ssistance of counsel claims. Relative to the petitioner’s issue in this appeal, paragraph se ven of the amended petition states tha t
it was clearly

ineffective on behalf of

the trial counsel t o not protect him from trial courts creating a jury charge whi ch did not comply withthe laws of t he State of Tennessee and did not protect the constitutional rights of the Petitioner.

At the evidentiary he aring, but before any witnesses testified, the petitioner’s attorney explained

to the trial court that the jury instructions we re improper b ecause they di d not include any lesser included offenses of felony murder. The state asked the trial court to strike parag raph seven from the petition because the petitioner failed to specify

why the jury char ge was improper and, therefor e, “did not state the specific facts that support the claim.” See

Tenn. Code Ann. § 40-30-20 6(d); see also Tenn. Code Ann. § 40-30-204(e) (providing that the petition must “include allegations of fact supporting each claim for relief”). The trial court

agree d with

the state, struck paragraph seve n from the petiti on, and or

dered th e petitioner to pro ceed with his rema ining cl aims.

The petitioner’s trial attorney testified at

the evidentiary he aring. He said that he had been practicing law since 1989 and that he had been doing def ense work seven years at the time of the petitioner ’s trial in Ap

ril 1997. H e also sa

id that the

defense ’s theor

y of the case was that th e petitioner was not guilty of f

elony murder because he had dissociated himself from the burg lary when the victim was killed. Despite the trial court’s ruling that it would not consider the issue of in effective assistanc e of coun sel with r egard to imprope

r jury instructi ons, the pe

titioner b riefly cross-examined his trial attorney as to why the jury was not instructed on le sser included offenses of felony murder . The attorney acknowledged that at the t ime o f the petitioner’s trial, he was familiar with the concept of lesser included offense s. He said

that it wa s his prac tice to file a pretrial motion request

ing that a jury be instructed on a

ll lesser included offenses and that he filed such a motion in this case. He said that during a pretria l hearing, the trialcourt determined that it was not going to charge any

lesser included offenses of felony murder. He testified

that the d efense would have welcome d jury instructions on lesser included of fenses because if the jury had found the petitioner guilty of a le sser included offense of felony murder, he would ha ve recei ved a shorter sentence. He said, though, that he di d not spend a grea t deal of time trying to per suade the trial court to instruct the jury on

lesser included offenses. The petitioner did not question the attorney regarding the attorney’ s failure to raise the issue on appeal of the petitioner’s convictions.-3-

The trial court dismissed the petition for post-conviction relief, holdi ng that the petitioner received the effective assistance of counsel at trial. Although the trial court had stated at the evidentiary

hearing that it would not consider the petitioner’s ineffective assistanc e of coun sel claim in paragraph seven, the trial c ourt noted in its order denying post-conviction relief that the petitioner’s attorney aske d the trial court to instruct the jury on lesser included offenses of felony murder and that the trial court refused. I t then stated,

There was no proof

present ed at the post convi ction hea

ring to demonstr ate that the tr

ial judg e was i n error

in making this ruling. .

. . Therefore, because trial counsel did seek lesser-included offenses butwas denied an instruction by the Court, counsel cannot be faulted for the Court’s action. The petitioner had not demonstrated by clear and convincing evidenc e that the trial Cour

t was in er

ror in deciding that lesser -inc luded offenses were not justified under the proof a t trial.

The only issue

the petitioner raises in this appeal is whether the trial court improperly r

efused to consider the ineffective assistance of counsel claim raised in paragra ph seven of his petition. He contends that “there wa s more than sufficient evidence to support the charg e of a lesser included offense and to fa il to do so wa s clear

ly error and amounts to ineffective assistance of counsel by

trial counsel not preserving that issue.” The state does not address the petitioner’s argument that the tria l court improperly struck pa

ragraph seven from his petition. I nstead, the state argues that the trial court properly

denied the petitioner’s petition for post-conviction relief.

In considering whether a post-conviction petition states a colorable claim for relief, the trial court is to take the facts alleged as true. See Tenn. Cod

e Ann. § 40 -35-206(f). “A c olorable claim is a claim . . . that, if taken as true, in the light most favorable to petitioner, would entitle petitioner to relief u nder the Post Convic tion Proce dure Ac t.” Tenn . S. Ct. R. 28 § 2(H). Th e petition must disclose the factual basis for any

grounds for relief, and

a “bare allegation that a constitutional rig ht has been viol ated and

me re conclusions of law shall not be sufficient to warrant any further proceedings.” Tenn. Code Ann. § 40-30-206( d).

Alth ough we view t

he ineff ective a ssistance

of counse

l claim ra ised in pa ragra ph seven to be marginally

sufficient, at best, we believe that the trial court should have allowed the petitioner to pursue the issue. The petition alleged that the petiti oner received the ineffec tive assistance of counsel because

his trial a ttorney failed to protect his constit

utional ri ght to pr

oper jur y in struction s. When the petitioner specified the problem at the beginning of the hearing , the trial court should have given the petitioner leeway to pro ve his cl aim at the evidentiary hearing. Our supreme court has provided the following in its p ost-conviction pro cedura l rules:

If evidence is objected to on the basis that it con cerns issues not raisedin the pet

ition or an swer, the

court ma y a llow amen dments and shalldo so fre ely

when the present ation of th e merits o f the ca

use will-4- otherwis e be subserved. The court sha ll libera lly allow a continuance in the event an amendment is allowed to enable the objecting par

ty to meet the evidence.

Tenn. S. Ct. R. 28, § 8(D)(5). Although the state objected to pursuit of the claim, it d

id not disc lose any prejudic e it would

endure i f the tria

l court a llowed the

claim to be

pursued. We note tha

t despite the trial court’s stating that it wa s striking parag raph sev en from th

e petition , the tria

l court pa rtially
r uled on the issue when it held in its order deny ing post-conviction relief that the attorney did no t render ineffe cti ve assistance of counsel at trial because the attorney requested that the trial court instruct the jury on lesser

included offense s. Howev er, nothi ng was s aid or found regarding whe

ther the petitioner received ineffective a ssistance of counsel on appeal.

At the evidentiary he aring, the petitioner asked his trial attorney on cr

oss-examination a few questions about

whethe r the attorney

had asked the trial court to instruct the jury on the lesser included offenses of

felony murder . However, the petitioner did not ask the attorney why he failed to raise the issue on appeal. Given the fact that the trial c ourt had stated at the beginning of the evidentiary

hearing that it would not consider the claim , we will n ot fault th e petition er’s pos tconviction counsel for not cross-examining the trial attorney further about the issue. Therefore, we remandthe case to the tria l court fo r anothe r eviden tiary hearing in order for the p etitioner

to question his trial attorney as to why the issue of lesser included offenses was not raised on appeal of his convictions and for the entry of findings of fact and conclusions of law.

Based upon the for e going and the record a s a whole, we reverse the judgme nt of the trial court and remand the case for fur ther proceedings consistent with this opinion.

___________________________________ JOSEPH M. TIPTON, JUDGE