1 Becau se the D efen dan t r e ceive d consec uti ve sent ences, none longe r tha n eight years , he was eli gibl e for altern ative se nten cing

. See Tenn. Co de An n. § 40-35-3 03(a). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on

Briefs M arch 19, 2002
CUMECUS R. CATES v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Knox County No. 72267 Mary Beth Leibowitz, Judge

No. E2001-01408-CCA-R3-PC June 13, 2002

Pursuant to a plea agreem ent, the Pe

titioner p led guilty t

o four felony drug offenses and received an effectivesentenc e of sixte en year s. After a hearing, the trial court ordered the sentence to be served in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, which the trial cou

rt dismisse d without a

hearing for fail ure to sta te a colorable claim. Concluding that the Petitioner stated a colorable claim, we reverse and remand for a hearing. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t Rever sed and Remanded

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined. Cumecus R. Cates, Wartburg, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Renee W . Turner, Assistant Attorney Genera l; Randall E. Nichols, District Attorney General; and S. Jo Helm, A ssistant D istrict At torney General , for the Appellee, State of Tennessee.
OPINION

I. Procedural Background

On August 7, 2000, the Petitioner, Cumecus R. Cates, entered guilty pleas to four felony drug offense s, receiving an effective sentence of sixteen ye ars. The manner of service of the sentence was to be determined by the trial court after a sentenc ing hearing. 1 Following a sentencing hearing on September

28, 2000, the trial court ordered that the sentences be served in the Tennessee Depar tment-2-

of Correction. On March 9, 2001, the Petitioner filed a petition for post-conviction relief, in which he alleged that his “[c]onviction was based on [an] unlaw fully induced guilty plea, or guilty plea involunta rily entered without

understanding of the nature and consequences of the plea ”; and that he was de nied eff ective a ssistance

of counse

l. Included in the petition is the following: My court-appointed

[a]ttor ney . . . vi sited me w

hile I wa s in the Blount C ounty Jail
on an unrel ated matt

er. I not only had th

e four c lass B felo ny cocaine charges pending against me, but I also had a Robbery charg e in Knox C ounty (to which I assert my innocence). In this Robbery charge, I have a very soli d alibi. W

hen my [a]ttorney came to

visit me in

the Blount County Jail, he told me that he had spoken t o my alibi wit

ness and t hat his tes timony woul d not be suf ficient t o get me a

notguilty verdict

on the Robb ery cha

rge. He further advised m

e that I mu st d ecide t o take the sixteen (16) year plea agree ment right away, or the State would force the issue and go ahead to tr

ia l on t he Robbery charge. In other words, take the plea agreem ent, or face the fac t that I have a good chance of being found guilty of a charge that I did n ot commit. [My attorney] was adamant that regard less of my g

uilt
or innocence, I did not need to go to trial on the robber y charge. He made me feel as if I ha d no choic e other t

han acc epting thissixteen y ear ple a agree ment.
As it turns out , I did agr

ee to the sixteen y ear ple a agree

ment. But, only a very short time thereafter, I found out that [my attorney] never di d contact my alibi witness. In fact, my alibi witness had been trying to contact [my attorney] for weeks. My alibi witness is prepa

red to of fer a sw orn aff

idavit a ttesting to this fact. After thinking about it, I realized that [my attorney] totally mislead [sic] me. He never had any idea what my alibi wit

ness had to say. Had he went [sic] to see the witness, instead of simply lying to me, he would have seen that I was not guilty. Since I do not know about the intricacies of the law, I did not understand that I have a n absolute

right to have my defense vigorously pursued by my defense counse l. Now that I am in the Statepenitentiary, I have access to the law books. They ha ve shown me that my right to ef fective assistance of counsel was violated. Further, I now know that a plea agreement

made invo luntarily

or unknow ingly, is inv alid under the Constitutions of the United States and Tennessee respectively.

Another reason I feel I

was mislead [sic] into taking this sixteen year plea agreement is that I was told by [my attorney] and the Assistant District Attorney that the office of the District Attorney would not oppose probation for me in the case. W

hen [my attorney] told me that if I pled to th e charg es, the pr osecutio n would not

oppose probation, it more or less said to me, “if I take the pl e a, then I will get probation.” The very next day after I took the open plea, the prosecu tion filed a motion to o

ppose probation. Of course by then, I had already ta ken the plea, so I figured

I was stuck withit. Well, that is just another way I feel I was tricked. After taking the p lea, I found out that my

case had been transferre d to adifferent Assistant District Attorney-3-

. . . who also happened to be theviolent crimes prosecutor. Since it was transferred to her, the deal fell flat. The only problem . . . is that [my attorney] never informed
me of this. On the day of my probation hearing, [my attorney] was unpre pared. He had informed me that the hearing would be p ostponed b ecause I had pending char

ges. Of course, it was not p ostponed. We wer e force d to go through wit h the hearing. Since I had been informed by my [a]ttorney that the hea ring would be put

off, I di d nothave my character witnesses there to testify on my behalf. My wife, my mother and other friends and fami ly planned o n testifyi ng for me . But since [my attorney] informed me that there would be no hearing, no one was there. I have also found out that the balif f of the c ourt was t

alking to th

e Judge a bout me prior to the hearing. This baliff a

nd I have some hist

ory together , and I feel that he may have exerte d
some undue influence on the Judge, which resulted in prejudice against me receiving probation.
Moreover, I feel th at [my att orney], my attorney through all of this, did not do his job
as m y defense counsel. I feel that if not for his bad advic e and intention a l misrepresentation of the facts to me, I would have proceeded to trial on this matter. Please consider this matter for an evidentiary hearing, at which I would offer

proof of all that I have said here today.

On May 15, 2001, the post-con viction c ourt ente

red an or der dismis sing the pe

tition forpostconviction relief for “failure to assert a c olorable claim.” See Ten n. R. Sup. Ct. 28, § 2( H). This conclusi on by the p ost-conviction court was ba sed upon th e followi ng finding s of fac t: That the complaint of

the petitione

r compla ins about t

he servi ces of hi s attorne

y in matters unrelat

ed to the case s upon whic

h he has f iled his post-con

viction pe tition[;] that case is still pending before this Court. Thus he has alleged no issues regarding failure of his atto

rney with regard to the fou

r (4) ca ses upon w

hich the p etition is filed. Further

he claims that he was promised probation and upon examination of the post-conviction petition [the Petitioner] clearly understood that he had a sixteen (16) year agreem ent and th at the Cour

t allowed him to apply

for Intensive Probation and Community

Alterna tives to Pri son Progra

m and alte rnative relief. It is also clear

that he had major

charges pending in Knox County, which he still has pending, and that he also had drug charges pending in Sullivan County, Tennessee. The Courts made it a point to the defendant to understand that there was no promise of

probation [and] that the Court would make the decision. [The Petitioner] did not receive probation
as a result of which he continues to complain about a plea agreement which did not turn out the way he expected.

II. Analysis

Tennessee Code Ann otated § 40 -30-206( d) provid es as fol lows: A pe

tition forpostconviction relief-4-

must contain a clear a

nd s pecific

statemen t of all gr

ounds upon

which re

lief is sought, including

full dis closur e of the factual basis of those grounds. A bare allegati on that a

constitutional right has been violated and mere conclusions of law shallnotbe sufficient to warrant any further proc eedings. Failure to state a factual basis for the grounds alleged shall res ult in immed

iatedismissal of the petition. If, however, the petition was filed pro se, the judge may enter an order stating that the petitioner must file an amended petition that complies with this section within fifteen (15) days or the petition will be dismissed. This Court has held that

bare allegations that counsel failed to interview witnesses, failed to discover evidence not disclosed by the prosecution, and failed to make proper objections during the trial do notsufficiently set

forth a factual basis for a claim of ineffec tive assistance of counsel. See Pewitt v. State 1 S.W.3d 674, 676 (Tenn. Crim. App. 1999).

As the State

points out in its brief, a petitioner’s grounds for relief must be specific and the petitioner mus t set forth facts that establish a “colorable claim.” Tenn. R. Sup. Ct 28, § 2(H)

. A colorab le claim is de

fined as a claim “ that, if

taken astrue, in

the light most favorable to petitioner, would entitle petitioner

to relief under the Post-Conviction Procedure Act.” Id. Furthermore, when
no colorab le claim is pr

esented or implied , it is not ne cessar y to appoint counsel. See Swanson v. State , 749 S.W.2d 731, 734 (Tenn. 1988).

After a careful review of the petition for post-conviction relief, we must respectfully disagree withthe trial court’s conclusionthat no colorable claim is presented in the petition. The Petitioner alleges ineffective assistance of counsel and specifically alleges that counsel misrepresented to the Petitioner tha t counsel

h ad interviewed an alibi witness and found the witness’s testimony to be unconvincing. Although th e alibi witn ess was n ot in volved in any of the four cases to which the Petitioner pled guilty, the Petitioner alleges that his decision to accept a plea in the four drug ca ses was directly

related to his attor

ney’s mi srepresen tations pertaining to the alibi witness and the disposition of the case in which the alibi witness’s testimony would have been critical.
Next, the Petitioner alleges that his attorney told him if the Petitioner entere d guilty ple as in th e drug cases, the district attorney would not oppose probation. Our review of the record

of th e s en tencing hearing reveals that Assistant District Attorney General He lm vigorously opposed probation. Petitioner

also alle ges inef

fective repres entation

by his coun sel prio r to and a t the sentenci n g hearing in that counsel told the Petitioner that the hearing would be postponed, which caused the Petitioner to be without numerous character witnesses. Finally, the Petitioner avers that butfor the in

effec tiveness of his cou

nsel, Petitioner wo

uldhave pro ceeded

to trial on “this matter.”

Our review indicates that the Petitioner has stated a colorable c laim. We thus conclude that the trial cou

rt erre d in dismissing the petition without an evidentiary hearing. Theref ore, this case must be remanded to the trial court for appo intment of counsel and for an evidentiary hearing. Whether the asse rtions mad

e by the Pe

titi oner ar e credible or whether they have a ny merit are determinations to be made by the trial court after the evidentiar y hearing.-5- ___________________________________ ROBERT W. WEDEMEYER, JUDGE