### IN THE SUPREME COURT OF TENNESS EE AT JACKSON April 2, 2002 Session
TERRANC E B. BURNETT v. S TATE OF TENNESSEE Appeal by pe rmissio n from the Court of Cr

iminal App eals Circuit Court for Lauderdale County No. 6484-A Joseph H. Walker, III, Judge

No. W2000-01954-SC-R11-PC - Filed December 30, 2002

Terrance Burnett, appellant, pleaded guilty to two counts of

felony mur

der, two counts of attempted first degree murder, and one count of especially

aggravat ed bu rg la ry. He received se nt ences of

li fe wi th ou t t he po ss ib il it y of pa ro le , t we nt y yea rs , a nd ei gh t ye ar s, re sp ec ti ve ly. One year la

ter, Burnett filed a petition for post- conviction relief alleging sever al constitutional violations that he c laimed en titled him to

relief f rom the a

bove judg

ments. After hav ing appointed counsel, the trial court dis missed the

petitio n without having conducted an evidentiary hearin g. The Court

of Crimina

l Appealsaffirmed the judgment. On a ppeal to t

his Court , Burnet tcontends that the trial court erred in dismissing his petition with out an evidentiary hearin g. For

the rea sons discussed herein, we are of the opinion that the trial court a cted in a manner consistent with the provisions of the Post-Conviction Proce du re Act of 1995. Accordingly , the judgment of the trial court and the Court of Criminal Appeals is affirmed. Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Crim inal Appeals Affirmed
A DOLPHO A. B IRCH , J R ., J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., E. R IL EY A NDERSON , J ANICE M. H OLDER , and W IL LI AM M. B ARKER , JJ., joined.
Shana Mc Coy -Johnson, So merville , Tennes see, for the appe llant, Te rrance Burnet t.
Paul G. Summers , Att or ne y General and Reporter; Michael E. Moore, Solicitor Gene ral; and Mark E. Davidson, Assistant Attorney General, for the appellee, State of Te nnessee.1 Although the trial co urt cap tioned its order as “findings of fact and conclus ions of law, ” we note t

hat t he order contai ns only conclus ions of law.

-2-

OPINION
I. Facts and Procedural History
On October

6, 1997, B urnett wa s i ndicted on two counts of felony murde r, two counts of attempted first degree murde r, one count of especially aggravated burg

lary, and one

count of aggravated

assault. Th e trial court appointed counsel to represent Burnett, and the State filed a Notice of Intent to Seek the Death Pena l ty . On Januar

y 22 , 1999, asa result o f nego tiations w ith the State and the advice of c ounsel, Burnett pleaded guilty to two counts of felony murde r, two counts of a tt emp ted fir st deg ree mu rde r, a nd o ne c oun t o f es pec ial ly agg rav ate d bu rgl ary. In exch ange for his pleas , the trial court sentenced Burnett to life imprisonment without the possibility of parole, twenty years, a nd eight ye ars, respectively

. On January 21, 2000, Burne tt filed a petition for post-con vic tion relief. He alleged: (1) that his pleas were unlawfully induced or involuntarily ente red without an understanding of the nature and consequences of the pleas; (2) that h e did not receive the effective assistanc e of counsel; and (3) “other grounds” not included in the petition but provide d in a me morandum attache d theret

o. This mem

orandum i s as follow s: January 22, 1999, the last day bef ore the trial, the d efenda nt’s counsel and mitigation specialist vis ited the defendant at the La uderdale County, Te

nnessee jail with a TV and video cassette recor de r machine and play

ed a tape of the 20/20 special he reco rded t he nigh t before January 22. I t was a special of a

n inmate awaiting the Lethal I

njection on Death

Ro w. The show talked about the in ma te [’ s] la st da ys, la st ho ur s, la st me al s, an d l as t t im e w it h f am il y. A fter 19 months of leading the defendant on, the defenda nt’s defe nse tea m showedtheir true defens e strateg y, u sing coe

rcion, te rror, in ducemen

t, and subt

le or bl at an t t hr ea ts , t he y induced the defendant to plead guilty . So the plea was not willingl y and intelligently

ma d e becau se of the

method used to obtain

it and so the plea is involuntary bec ause it was unl awfully induced with an unqualified Death Pe nalty case co unsel.
The trial court

a ppointed c ounsel to r

eprese nt Burne tt and gr anted ad ditional time within which to file an

amended

petition; n o ame ndmen t was file d. The court also o rdered that a transcript of the guilty

plea submission hearing be prepared.
On July 31, 2000, the t rial court dismissed Burnett’s petition without an evidentiary hearin g. The cour

t n oted that it had thoroughly r eviewed the transcript of the guilty plea submission hearing before ruling . I n it s dismissal order, the court made the following con clusion s of law: 1 (1) that the petitioner had been accura tely informed by

his attorneys and-3-

knew what he was doing when he entered his plea; (2) that the petitioner could not have been prejudiced

by any alleged de fi ciency of

trial counsel; (3) that the petitioner knowingly and voluntar ily pleaded guilty ; and (4) that the p etition fa iled to all ege fa

cts suffi cient to e

nti tle th e petitioner to relief . Based on the abo ve, the tr

ial cour t conclud ed that the alleg ati ons did no t merit an evidentiary

hearing and dismissed the petition.
On August 8, 2000, Burnett filed a notice of ap peal in the Court of Criminal Appeals and shortly therea fter fil ed two af

fidavits. On appea

l, the Court of

Criminal A

ppeals r efused t o consider the affidavits because the trial court had bee n without jurisdiction w hen the a ffidavit s were filed. In considering whether Burnett was entitled to an evi de nt ia ry hearing, the intermed iatecourt co ncluded t

hat his pe

tit ion “cont a ined only bare a llegations of violations of constitutional rights and mere conclusions of law without presenting facts which, taken as true, would cause his pleas to be unknowing and involuntary.” Thus, the interme diate court affirmed the trial court’s judgment.
On appeal to this court, B urnett contends that he was entitled to an evidentiary hearing be cause his pet ition alleged facts sufficient to state a colorable claim. Therefore, he asserts, the trial court er

r ed in dismissing his petition. We granted this appeal to examine the procedure for determining when a pet ition merits an evidentiary hea ring under the 1995 Post-Conviction Procedure Act.
II . Standard of Review
Becau se the issue before us is a question of law, our review is de n ovo. Stat e v. Fields , 40 S.W.3d 450, 457 (Tenn. 2001).
II I. An aly sis
We begin by

reviewing the relev a nt sections of the Post-Conviction Procedure Act of 1995. A post-co nvic tion p roceeding is commenced by the filing of a petition for post-conviction relief with the clerk of the court in which the convi ction occurred. Tenn. Code Ann. § 40-30- 204(a) (1997). T

he petitio n must cont

ain a cle ar and sp ecific s tatement o f all grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. Te nn. Code Ann. § 40- 30-206(d ) (1997) . A bare

all egation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any

further proceedings. Id. Ad di ti on al ly, failure

to state a

factu al ba sis for the

ground s alleg ed shall r

esult in immediate dismissal of the petition. Id.
The 1995 Post-Conviction Procedure Act details the review process that prec edes the trial court’s gran ting of an evidenti ary hearing . First, t

he trial c ourt cons iders the petition to determine whether the petition asserts a co l orable c laim. A co lorable claim is de

fined in Supreme Court Rule 28 § 2(h) as “a claim that, if taken as true, in the ligh t most favorable to the petitioner, would entitle petitioner to relief unde r th e Post-Conviction Procedure Act.” Therefore, if the fa

cts alleg ed, take

n as true , fail to show that the petitione r is entitl ed to relief, or-4-

in other words, fail to state a colorab le claim , the petition shall be dismissed. See Tenn. Code Ann. § 40-30-2 06(f) ( 1997). B y itsrefusa l to dismi ss Burnett’s petition at this stage, the trial court apparently

concluded that the petition stated a colorable claim. Progressing to the next stage of the review process, the trial co ur t m ay a fford an indigent pro se petitioner the opportunity to have c ounsel ap pointed a nd to amend the petition, if neces sa ry. Tenn. Code Ann. § 40-30-207(b)(1) (1997). I f, after consulting with the petitioner, co unsel de clines to amend the petition, written notice that an amended petition will not be filed must be provided to the court. Tenn. Code Ann. § 40-30-207(b)(2) (1997) . In the instant case, this protocol was followed precisely . Ha vin g deter mined tha

t the petit

ion stated

a colora ble claim and was not thereby

subject to immed iate dismi ssal, the trial cou rt appoin ted couns el to repr esentBur nett and allowed time to amend the petition. Counsel subsequently g ave notice that no amended petition would be filed.
In the final stage of the pro cess preceding an evidentiary hearing, the trial court reviews the entire record, including the petition, the State’s response, a nd any other f

i les and records bef o re it. If, on reviewing the se documents, the court determines conclusively that the petitioner is not entitled to relief, the petition shall be dismissed. Tenn. Code Ann. § 40-30-209(a) (1997). After having thoroug hly examined th

e recor d, which included B urnett’sorigin al pro se petition, accompany

ing memorandum, and guilty plea transcript, the t

ri al court concluded that Bu

rnett was not entitled to r elief. As a result, the trial court dismissed the petition without having conducted an evidentiary

hearing.
Burnet tappealed to the Cou

rt of Criminal Appe als. Afte r th e notice of

appeal was filed, he sou ght to introduce to the court two affidavits not previously entered into the record. The interm ediate

court found that the trial court was without jurisdiction to accept the affidavits. As a consequ ence, th

e intermediate court decl in ed to cons i der the affidavits. And because the affida vits were not before the intermediate cour t, they are not be

fo re us and hav e not been considered.
Burnet tcontendsthat he sta

ted a col orable c laim and w as entitled to an evi d enti ary hearin g. On the other hand, the State contends that the petition was properly dismissed without an evidentiary

hearing. Ample authority supports the State’s contention.
As previously indicat

e d, the Post-Conviction Procedure Act clearly affords the trial court the authority to dismiss a petition without holding an evidentiary hearing, notwithstanding the fact that the pet it io n m ay have survived earlier dismissal. In this respect, the statute tracks pre1995 decisions of this Court. See Swanson v. State , 749 S.W.2d 731, 736 (Tenn. 1988) (holding that when a colorable claim for relief ha s been presented, a hearing may not be nec essary a

fter the petitioner has had the assistance of counsel to amend the petition, by which t he court

ma y then fully eva

luate the merits of

the claim

); see also Gable v. State , 836 S.W.2d 558, 560 (Tenn. 1992) (holding that the trial co urt d id not err in dismissing the petition without an evidentiary hearing where th

e petitioner was g

iven both t

he aid o f counse

l and a re asonable

opportuni

ty to amendthe petition and no amendment was filed ). Therefore, once a petitioner is aff orded the-5-

benefit of counse

l, the t rial cou

rt may evaluat e the cla im and det

ermine w hether t he petitio ner is entitled to relief without holding an evidentiary hearing.
Grounds for post-c onvic tion relie f are lim ited to situ ations whe

re “the convicti on is void or voidable because of the abridge ment of a ny right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-203 (1997). H ere, B urnett alleged that he di d not rec eive the effec ti ve ass istance of counsel because his trial counsel was notdeath penalty c ertified un der Su preme Court Rule 13. He also alleged that his guilty plea was involuntarily and unknowingly entered because trial counsel s howed him a videotape reflecting the fina

l hours of

an inmate

on death row, thereby inducing

him to plead guilty in a distraught and emo t ional state. Taking these allegations as true , and reviewing them in light of the entire record, the trial court properly held that Burnett failed to assert grounds for relief.
In reviewing Burnett’s first claim of inef fective assistance

of coun sel, the two-pronged standardoutlined in Strickland v. Washington , 466 U. S. 668 (19 84), applies. Under Strickland , an allega ti o n of ineffective assistance of counsel must show first that counsel’s pe rformance was deficient and second that the deficient performanc e prejudiced the defense. Id. at 690-94. Burnet tallege s that he d

id not rec eive the

effec tive assis tance of

counsel but fails to a

lle ge any specific facts establishing deficient performanc e or prejudicial effect on the outcome of his case
. The failure to assert these essential elements of the c laim mandates dismissal.
Si mi la rl y, Burnett’s second claim that his plea was involuntari ly an d unknowingly entered must also fail. His allegation that he was sho wn a death penalty videotape on the eve of his trial, which induced him to plead guilty , does not establish grounds for post-conviction relief. Defen se counsel h ad an obli gation t o advise B urnett of

the poten

tial conse quence s that could result if his case went to trial. Counsel chose to sa tisfy this obligation by showing a videotape about a death row inmate awaiting execution. Burne tt does not allege that the videotape was misleading or untrue or that he w as u nl ik el y to fa ce th e d ea th pe na lt y ha d h e n ot pl ea de d g ui lt y. Instead, he alleg es that the videotap e’s gr

aphic accura cy about the c ircumstances he could face by rejecting the p le a of

fer infl uenced his decis ion to acc ept the of fer and plead g uilty . While counsel might have chosen a different method of inf orming Bur nett abou

t the possib le outcom

e of a trial, we do not view the method chosen as unduly coercive to the e xtent that it rendered Burnett’s plea involuntarily entered.
We are of the opinion that the trial cour t co rrectly r

uled on this petition in accordance withboth the 1995 Act and prior decisions of this Court. After determining tha t the alleg ations of the pro se petition, tak e n as true, stated a colorable claim, the trial court appointed c ounsel and providedan opportunity for the pe tition to be amended. After the petition was not am ended, the trial court again considered the ca se, this time reviewing no t o nl y the petition but the entire record. The trial court determined in light of the entire rec ord tha t the allegations, taken as true, had no merit and therefore did not warrant an e videntiary hea

ring. Accordingly , the court dismi sse d the petition. The Court of Criminal Appeals upheld that judgment, and we now affirm.-6- IV. Conclusion
For the foregoing reasons, we affirm t he judgment of the

Court of Cr

iminal App eals. Becau se it appears Burnett is indigent , costs of this appeal are taxed to the appellee, the State of Te nn es se e, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

_______________________________ ADOL PHO A. BI

RCH, JR., JUSTI

CE