# FILED
September 11, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 31, 1998 SESSION
MARIO BOWSER, ) ) NO. 02C01-9803-CR-00093 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. CAROLYN WADE STATE OF TENN ESSEE, ) BLACKETT, JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : MARIO BOWSER, Pro Se #269851 Cold Creek Correcti onal Facility P.O. Box 1000 Henning, TN 38041 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter GEORGIA BLY

THE FELNER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General MICHAEL H. LEAVITT Assistant

District Attorney

General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

REVERSED AND

REMANDED

JOE G. RILEY, JUDGE2 OPINION

The petitioner, Mario Bow ser, appeals the order of the Shel by County Criminal Court deny

ing his “M otion For Po

st-Convi ction Reli ef Filing To Be Held In Abeyance.”On appeal, he claims that the t rial court abused its discretion in denying the requested relief and maintains that counsel should be appointed with leave to file an am en de d p et it io n. We hold that the trial court erred in not appointi ng counsel to file an amended petition.

I

On January 21 , 1997, p etitione r entered guilty pleas to two (2) counts of aggravated assault, two (2) counts of attempted first degree murder and aggravated perjury. No appeal was taken from petitioner’s convictions. On January 16, 19 98, petitioner filed a “Moti on For Post-Convicti on Relief Filing To Be Held In Abeyance,” r equesting 180 day

s to file a post-convicti on petition “due to the fact heis trying to purc hase records to use as

evidence in postconviction proceeding that wil l show proof-in-facts as stipulated to were erroneous and false upon entering his guilty plea.” Petitio n er further alleged that his guilty pleas in January 1997 were involuntary due to the fact that he re ceived ine ffecti ve assistance of counsel. The trial court found that there i s no provision in Tennessee law which would allow

or mandate the tolling of the statue of limitations for postconvi ction filing, except under narrow, statutorily defined circumstances. Accordingly, the tr

ial court summarily de nied petitioner’s motion.

II

A. In several prior cas

es, this Court has ruled upon similar issues. In Charles Frank Griffin v. State , C.C.A. No. 1161, Hamilt o n County (Tenn. Crim. App. filed3

June 21, 1990, a t Knoxvi lle), the petitioner filed documents similar to the pres ent
case entitled “Petition for Post Conviction Reli ef Filing to be Held in Abeyance” and “Motion forAdditional Time for Filing of Post-Conviction Relief.” However, in those documents, the petitioner did not alleg e a constitutional viol ation and filed the documents two (2) days after t he expiration of the statute of limitations. This Court uphe ld the tr ial court’s summary dismissal, basing its decision on the petitioner’s failure to allege a constitutiona l violation and t he untimely filing of the pleadings. Charles Frank Griffin v. State , No. 1161, 1990 Tenn. Crim. App. LEX IS 422, at *1-2. In another

case, the petitioner filed a “petit ion for post-conviction relief filing to be held in abeyance” on the da y prior to the expiration of the statute of limitations. Billy Ferrell Wadd ell v. State , C.C.A. No. 03C01-9107-C R-197, Knox County ( Tenn. Crim. App. filed January 28, 1992, at Knoxville). In this document, the petitione r did not directly allege any ground for re l ief but requested additional time to file his petition. Approximately tw o weeks after the petitioner filed this document, he filed
a petition for post -convi ction relie f. This Court concluded that the fir st document “was a sufficient petition to get the appellant’s petition before the court.” Billy Ferrell Waddell v. State , No. 03C01-9107-CR-197, 1992 Tenn. Crim. App. LEXIS 60, at * 1. The Court noted that

Tennessee law favors substance o ver form in post-convi ction matters. Id. The Court then found that the prior document was the petition for postconviction relief, and the second document w as an amendment to the petition. Id. Thus, the Court reversed the tr ial court’s decision de nying relief andremanded for an evidentiary heari ng. Id. Recently, in Earl Crawford, Jr. v. State , C.C.A. No. 03C01-9610-CR-00385, Bra dley County (Tenn. Crim. App. fil ed July 29, 1997, at Knoxv ille), the peti tione r fil ed a similar pleading tw o (2) days prior to the expiration of the statute of limitations. The document alleged no constitutional violations, but clai med that the petitioner

would subsequently

file a post-convictionpetition “as to the improper and i llegal me thods utilized by the state to secure said sentences against petitioner.” Earl Cra wf ord, Jr. v. State , No. 03C01-9610-CR-00385, 1997 Tenn. Crim. App. LEXIS 721, at *1. This Court affirmed the tri al court’s dismissal of th e pleading,4

holding that the petiti oner alleged no f acts showing a c onstitutional abridgement and, therefore, did not

allege a colorable cl aim upon which to base the petiti on. Id. at *2. B. When a post-conviction petition alleges a colorable claim for relief, it should not be dismissed upon technical grounds but should be heard on its meri ts. Allen
v. State , 854 S.W.2d 873, 87 5 (Tenn. 1993). This is especially true regarding pro se petitions. Id. Indeed,
a pro se petition under the Act is “ held to less stringent standards than formal pleadings drafted by law yers, and the test is w

hether it appears beyond doubt thatthe [petitioner] can prove no set of facts in support of his claim which would entitle him to relief.” Baxter v. Rose , 523 S.W.2d 930, 939 (Tenn. 1975) (citation omitted). Furthermore, when a colorable claim is pre sented in a pro

se petition, dismissal w

ithout appointment of counsel to draft a competent petition is rarely proper. Id. See also Mayes v. State , 671 S.W.2d 857, 858 (Tenn. Crim. App. 1984). If the availability of relief cannot be conclusiv ely determined from a pro se

petition a nd the a ccompanying records, the petitioner must be given the aid of counsel . T.C.A. §§ 40-30-104, 40-30-107, 40-30- 115. . . As the Court of Criminal Appeals stated in Stat e v . Butler , 6 70 S.W.2d 241 (Tenn. Cr. App. 1984), “the assis tance of counsel is necessary to aid both the petit ioner and the courts in bringing this matter to a proper conclusion.” Id. , at 243. Swanson v. State , 749 S.W.2d 731, 73 4 (Tenn. 1988). C. This Court recognizes that the presentpetition is controlled by the 1995 PostConviction Procedure Act (Tenn. Code Ann. § 40-30-201, et. seq) and the a bove
cases were decided under the pr ior Act (Tenn. Code Ann. § 40-3 0-101, et. seq). The current statute, Tenn. Code Ann. § 40-30-206(d), r equires a petition for

postconviction relief to be “clear and specific . . . including full disclosure of the factual basis of[the] g rounds. . . If, however, the petitio n was filed pro se, the jud ge may enter an order stating that the peti tioner must file an amended petition that complies with this section within fifteen (15) days or the petition will be dismissed.” The trial court may appoint counsel to file an amended petition. Tenn. Code Ann. § 40-30
- 206(e). Although the petition in this case i s styled as a motion and r equests leave to subsequently file a pe tition f or post-c onvi ction relief, we conclude this pro se5

pleading suffici ently alleges a colorable cl aim for relief under the 1995 Act. The pleading specifically alleg es an involuntary gui lty plea and ineffective ass istance of counsel. The pleading states, in pertinent part:

Petitioner

contemplates filing a petiti on for post-conviction reli ef challenging the inv

oluntariness of his guilt y plea entered on 1-21-97 wherein he was rendered i neffe ctive assistance of counsel when court appo inted cou nsel refused to investig ate the facts of the case to be in an i nformed position to properly prepare an adequate defense to the case that would place the State’s evidence throug h an adversarial testing process in violati on of the Sixth and Fourteenth Amendments to the U nited Stat es Constitution and Articl e I, § 8 and 9 of the Tennessee Constitution. Petitioner contends th at he was forced, pressured, and intimidated into entering his guilty plea. D. We acknowledge that the trial court was correct in its determination that the Post-ConvictionProcedure Act of 1995 does not author ize tolling

the s tatute of limitationsupon requ est of a p etitione r. However, f avoring sub stance o ver form, we do not construe the motion narrowly. The alle ga tions in the pleading sufficiently allege constitutional violations to warrant the appoi ntment of couns el . We , theref ore, remand this case to the trial court for appointment of counsel and th e filing of an amended petition.

JOE G. RILEY, JUDGE CONCUR:

PAUL G. SUMM ERS, JUDGE

DAVID G. HA

YES, JUDGE