# FILED
October 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY 1997 SESSION

WILLIAM JOSEPH HAYES, ) ) C.C.A. NO. 01C 01-9608-CC-00351 Appellant, ) ) WILLIAMSON COUNTY VS. ) ) HON. HENRY DENMARK BELL, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
WILLIAM JOSEPH HAYES, pro se JOHN KNOX WALKUP Turney Center Industrial Prison Attorney General & Repor ter Unit 4-B Route 1, Turney Center PET ER M . CO UGH LAN Only, TN 37140-9709 Asst. Attorney General 450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 JOSEPH D. BAU GH District Attorney General P. O. Box 937 Franklin, TN 37065

OPINION FILED:____________________

REVERSED AND

REMANDED JOHN H. PEAY, Judge2 O P I N I O N

The petitioner pled guilty to one count of solicitation to commit first-degree murder and was sentencedpursuant to a plea-bargai n as a Range I standard offender to eight years incarceration in the Tenness ee Department of Correction. Ju dgment was entered on August 25, 1994. On May 3, 1996, the peti tioner filed for

post-conviction rel ief alleging that he had pled guilty as a result of ineffective assistance of counsel. Th e court below summarily dismissed the petition on the grounds that “measured against the court record, the petition for

post conviction relief is without merit.” The petitioner now appeals, claiming that he was

entitled to a hearing

on his post-convicti on claims. We agree and reverse and rema nd this matter f or an evidentiary he aring.

Upon receipt of a petitionfor post-conviction relief, “the court shall

examine the allegations of fact in the petition. If the facts alleged, taken as true , fail to show that the petitioner is entitled to relief or fail to show that the cl aims for relief have not been waived or

previ ously d etermin ed, the petition shall be dismis

sed.” T. C.A. § 40-30-206 (f) (Supp. 1996) (emphasis ad ded). In the instant case, the petitioner alleged that he received ineffective assistance of counsel and that he was thereby coerced into pleading guilty. In support of his claims, he a lleged, among other things, that his attorneys fail ed to represent him properly as follows:

1. Failed to enter his plea in accordance with his wishes; 2. D isregarded his suggestions for the “development of or aggressive pursu it of any viable defenses;” 3. Refused to file a motion for psychological evaluations; 4. Refused to contact witnesses; 5. Failed to respond to repeated communications; 6. Informed him that the only responsibili t y to him “was not3 a defense which sh all prevail at tri al, but to get [him] the best deal (i.e., plea bargain), nor, for that matter, to have the jury find [him] innocent,nor no verdict due to the insufficiency of the evidence beyond a reasonable doubt t o sustain a conviction of g uilt;” and 7. Told him that his religion -- Wicca -- was on tria l, not his crime. As a result of these failures, the petitioner contends, he “was coerced by them and their missleading advise of prevailing in the Appellate Cour

ts o f the State of Tennessee, to accept a plea.”

In reviewing the pe

titi oner’s allegations, the court bel ow examined other matters contained in the record of the State’s case against th e petitioner and decided that the petitioner ’s allegations wer e without merit. We commend the court below for attempting to save the State the tim e, mo ney and resources req uired to provide the petitioner

with a hearing. However, in doing so, the court below overlooked its statutory duty to take as truethe al legat ions contained in the petition , without regard to other matters contained in the record. Taken as true, the petitioner’s allegations state a claim forrel ief. Accordingly, even if every single allegation is proved false, the petitioner i s entitled to a he aring.

The judgment below is reversed and this matter is re manded for an evidentiary hearing

in accordance with the Post-Conviction Proc edure Act, T.C.A. § 40-30-201 et. seq. (Supp. 1996).

_______________________________ JOHN H. PEAY, Judge4

CONCUR:

______________________________ WILLIA M M. BARKER, Judge

______________________________ JERRY L. SMITH, Jud ge