### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs January 24, 2001

JOSEPH A. MAINE v. STATE OF TEN NESSEE

Appeal as of Right from the Circuit Court for Cocke County

No. 25, 599-II Richard R. Vance, Judge

No. E2000- 01813-CCA- R3-PC April 19, 2001

On May 12, 1998, the petitione r, Joseph A. Maine, p

led guilty i

n the Cocke County

Circuit Court to one count of first degree murder and one count of conspiracy to commit first degree murder. The trial court sentenced the petitioner to life imprisonment in the Tennessee Department of Correction for the murder conviction and to twenty-five years i ncarceration in the Department for the conspiracy

conviction. The petitioner filed a pro se petition for post-conviction relief alleging that his convictions were based upon unlawful guilty pleas, that his convictions were based on a violation of the privilege a

gainst self-inc

riminatio n, and that h

is plea counsel wa

s ineffective. T

he postconviction court appointed counsel, and an ame nded petition was filed contending that the petitioner

was misinformed about his release eligibility date. The post-conviction court dismissed the petition for relief without holding an evidentiary hearing, and the pe titi oner appeals that dismissal. Upon review of the record and the parties’ briefs, we reverse the judgment of the post-conviction court and remand thi s case for an e videntiar y hearing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment o

f the Circuit Courtis Reversed and Remanded.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., an d J OSEPH M. T IPTON , J., joined.
Terry E. Hurst, Newport, Tennessee, for the appe llant, Joseph A. Maine.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; Alfred C. Schmutzer, Jr., District Attorney Gener a l; James B. Dunn and Ronald C. Newcomb, Assistant District Attorneys General, for the appellee, State of Tennessee

.
OPINION

I. Factual Backgr

ound On May 12, 1998, the petitioner, Joseph A. Maine, pledguilty in the Cocke County Circuit Court to the first degree m urder of Amy

King and to conspiracy to commit the first degree1 This release el igibili ty date means t

hat the petitioner would serve approximately sixty years i n confinement before becoming eli

gible for rel

ease.

-2- murder of Amy King. The trial court sentenced the petitioner, as a standa rd Range I offender,

to life imprisonmentin the Tennessee Department of Correction for themur der c onv ict ion and to t wen tyfive years incarceration in the Department for the conspiracy conviction. The trial court informed the petitioner that he would be r equired t o serve a minimum of twenty-five yea rs in confinement before becoming eligible for release and advised the petitioner that there were no guarantees that

he would be released at that time. The petitioner informed the trial court that he understood the ter

ms of the guilty plea, and the trial court accepted the g uilty plea.

Su bseq uen tly, the petitioner fil ed a pro se petitio

n for post-convic

tion relief baldly alleging that

his convictions were based upon unlawful guilty pleas, that his convictions were based

on a violation of the privilege against self-in

crimination, and th

at his plea counsel was ineffective. The petitioner offered no facts or argument in support of his claims other than cursory allegations that he “was under to[o] much mental problems.” The post-conviction court appointed counsel, and counsel filed a short amended petition contending that the petitioner wasmisinfor med about his release eligibility date. The

petitioner alleged

that both his plea counsel and the District Attorney General told him that he would be eligible for release after service of twenty -five years of hi s sentence, but “upon arriving in the State [penitentiary] he was informed by the Depar tment of Correcti on[] that his sentencing eligibility date is September 20, 2057.” 1 The post-conviction court dismissed the peti tio n without a hearin g, concluding

that the petitioner

had failed to state

a claim upon which post-conviction relief could be granted. On appeal, the petitioner argues that the

postconviction court erred by dismissing his petition for post-conviction relief without holding an evidentia ry hearing.
II. Analysis

Because the petitioner initiated his post-conviction proceeding after May 10, 1995, he must prove all of his factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). Unless the evidence prepo

nderates otherw

ise, this court is bound by

the postconviction court’s factua

l findings. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). Moreover, the post-conviction c

ourt resolves all q

uest ions pertain

ing to the credibility of witnesses and the weight and val ue t o be att rib ute d to the ir t est imo ny. Black v. St ate , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Accordingly, we may not re-weigh or reevaluate the evidence or substitute our inferences for those drawn by the post-conviction court. Momon v. State , 18 S.W.3 d 152, 156 (Tenn. 1999).

Init ial ly, we note that post-conviction relief “shall be granted when the conviction or sentence is void or voidable because of the abridgment of

any right guaranteed by

the Constitution of Tennessee or the

Co nstitution of the United States.” Tenn. Code Ann. § 40-30-203 (1997). Additionally, Tenn. Code Ann. § 4 0-30-206 (1997) p

rovides: (d) The petition mu st contain a clea r and specific st

atement of all grounds upon which relief is sought, including full disclosure of the-3- factual basis of

those grounds. A bare allegation that a constitutional right has been violated and mere conc lusions of law shall not be sufficient to warr ant an y further proceedings. Failure to state a factual basis for the gr

ounds alleged sh

all res ult in immediate dismissal of the petition. If, however, the petition was filed pro se, the ju dge may enter an order stating that the petitioner must file an amended petition . . . or the petition will be dismissed. (e) If a pet

ition am ended in accord ance with subsec

tion (d) is inc omplete
, the court shall de termine whether

the petitioner is indig ent and in need of counsel. The court may appoint co unse l [and]. . . [c]ounsel may file an amended petition. . . . (f) Upon receipt o f a petition in proper form, or upon receipt of an amended petition, the cour

t shall examine the a

llegations of fa

ct in the peti tion. If the fa

cts alleged, ta

ken as true, fail

to show that th e petitioner is entitled to relief . . . the petition shall be dismissed.

The sole issue before us on appeal is whether the post-convict i on court erred by dismissing the petitioner’s petition for post-conviction relief without holding an evidentia ry hearing. In his pro se petition for post-conviction relief, the petitioner alleged that his convictionswere based upon unlawful guilty pleas, that his convictions were based on a violat ion of the privilege a

gainst self-incrimination, and that his plea counsel was ineffective.

The petitioner offered few facts and no argument in su

pport of his alleg

ations. After considering the merits of the petitioner’s pro s e pe tition and upon finding that the petitioner was indigent and in need of counsel, the post-conviction court appointed counsel to assist the petitioner in drafting an

amended petition that would clarify and specify the petitioner’s arguments. In this one page amended petition,

petitioner’s cou

nsel contends only

that the petitioner

was misinformed about his potential release eligibility date. While the amended petition does a llege limited facts, the amended petition does not cl

early state which argument

(s) for post

-convict ion relief the all

eged facts support. Because the petitions for post-conviction relief have bee

n so poorly dr

afted, it is unclear what the petitioner intended to argue.

The facts contained in the petitions appear to s u pport a claim of involuntary and unknowing guilty

pleas because o

f the misinformatio

n about the petition

er’s release

eligibility date; however, it is unclear if

these facts are also argued to support other allegations. This court has noted that “a failure to

correctly inform the

[petitioner] about pa

role eligibility

dates, without more

, would notbe a basis for post-conviction relief.” Jam es Br ya nt Weston v. State , No. 03C01-9612-CR

00484, 1998 WL 133834, at *1 (Tenn. Crim. App. at Knoxville, March 25, 1998). This is

because “a prisoner has no constitutional right to conditional release prior to expira tion of his sentence.” Luther Robert Brown, I

II v. State , No. E1999-02290-CCA-R3-CD, 2001 WL 177056, at *2 (Tenn. Crim. App. at Knoxville, Febr uary 23, 200 1); see also James R. Miller v. State , No. 03C01-9608- CR-00288, 1997 WL 625282, at *2 n. 2 (Tenn. Crim. App. at Knoxville, October 10, 1997)(stating that “[r ]el ease eli gibi lit y for a fel on e sta bli she s on ly el igi bil ity f or releas e and is not an abso lute-4-

right”). However, as then Judge Paul G. Summers noted, incorrect information concerning the petitioner’s release eligibility date “may be evidence that hi s ple as were involuntary and unknowing.” See Weston , No. 03C01-9612-CR-00484, 1998 WL 133834, at *1.

Consequently, we find that, if the facts fr om the recordand those alleged in the petition for post-convict

ion relief are ta

ken as true, as the

y must be prio

r to dism issal withou t an

ev ident iary

hearing, then the petitioner has presented a colorable claim for post-conviction relief. See Tenn. Code Ann. § 40-30-206(f).

Gen eral ly, upon presentin g a colorable claim for relief, “even when it is unlikely that

a petitioner could a

dequately e

stablish the viola

ti on of his constitution

al rights, the ne

w postconviction st atute contemplates and due process requires that he at least be afforded the opportunity.” Waite v. State , 948 S.W.2d 283, 285 (Tenn. Crim. App. 1997). Therefor e, we reverse the judgment of the post-conviction co urt dismissi ng the petition and remand this case for an evidentiary hearing.

III. Conclusion

Based upon the fo rgo ing , we reverse the post-conviction court’s dismissal of the petition for post-conviction relief and remand this case for an evidentiary hea ring. Uponthe return of the case to the trial court,

counsel of reco

rd shall be allowed to withd

raw, and the tria

l court shall appoint new counsel to represent the petitioner.

___________________________________ NORMA McGEE OGLE, JUDGE