State v. Smith, 43
| Decision Date | 01 July 1991 |
| Docket Number | No. 43,43 |
| Citation | 814 S.W.2d 45 |
| Parties | STATE of Tennessee, Plaintiff-Appellant, v. Harold Vernon SMITH, Defendant-Appellee. 814 S.W.2d 45 |
| Court | Tennessee Supreme Court |
Charles W. Burson, Atty. Gen. & Reporter, James W. Milam, Asst. Atty. Gen., Nashville, for plaintiff-appellant.
James R. Mercer, Greeneville, for defendant-appellee.
This case presents an appeal by the State from the decision of the Court of Criminal Appeals reversing the trial court's dismissal of appellee's fourth petition for post-conviction relief and remanding the case to the Criminal Court of Greene County for a hearing on the petition. The trial court had dismissed the petition upon finding substantial compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and waiver of the grounds asserted for relief. The State has appealed only the issue of waiver. The record supports the trial court's dismissal of the petition.
The appellee-petitioner is serving a life sentence on an habitual criminal conviction rendered in the Criminal Court of Hawkins County in 1981. Three of the convictions supporting the habitual criminal conviction were based on pleas of guilty entered in the Criminal Court of Greene County in January 1971.
Appellee filed his first post-conviction petition in October 1971 in the Criminal Court of Greene County, attacking one of the January 1971 convictions on the grounds of double jeopardy. That petition was dismissed without the appointment of counsel or an evidentiary hearing. The second petition filed in October 1986 in the Criminal Court of Greene County, attacked the habitual criminal conviction in Hawkins County on the grounds that petitioner's counsel was ineffective because he did not attack the underlying convictions in the habitual criminal proceedings. Dismissal of that petition was affirmed with the observation that the underlying convictions were not subject to collateral attack in the habitual criminal trial. Dismissal of the third petition for post-conviction relief, which was filed in the Criminal Court of Hawkins County in August 1987, also was affirmed by the Court of Criminal Appeals because it was found to be an attack on the habitual criminal conviction rather than the underlying felony convictions.
This fourth petition presently before the Court charges that petitioner did not knowingly and voluntarily waive his constitutional rights when he entered pleas of guilty to felony charges in the Criminal Court of Greene County in 1971 and that judgments of conviction thereon violate the constitutional requirements of Boykin, 395 U.S. at 238, 89 S.Ct. 1709. The petition, as initially filed pro se, did not state any reason why the Boykin issues were not raised in a prior petition. After the appointment of counsel to represent petitioner, the petition still was not amended to allege any reason why the grounds now asserted were not previously raised. The trial court found that the right to assert those grounds had been waived. The Court of Criminal Appeals reversed, holding that the record does not show compliance with the requirements set forth in Swanson v. State, 749 S.W.2d 731 (Tenn.1988), and remanded the case to the trial court with instructions that the petition be amended to show why the grounds now asserted were not presented previously and for an evidentiary hearing on waiver, if necessary. The court also suggested an evidentiary hearing on whether the pleas of guilty were knowing and voluntary.
The State, in insisting that the grounds now asserted have been waived, relies only upon the 1971 petition filed in the Criminal Court of Greene County and not on the two subsequent petitions, both of which attacked directly the habitual criminal conviction rather than the predicate convictions. The State acknowledges that based on the Court's decision in State v. Prince, 781 S.W.2d 846 (Tenn.1989), failure to include in the second or third petitions an attack on the facially valid judgments does not raise a rebuttable presumption that the right to challenge the underlying convictions entered on pleas of guilty in Greene County is waived. The issue before the Court, therefore, is whether the Boykin grounds were waived when not asserted in the 1971 petition.
The Court recently, in State v. Neal, 810 S.W.2d 131 (1991), reviewed the procedure whereby pleas of guilty may be accepted and also the procedure for asserting, both on direct appeal and in post-conviction proceedings, claims that guilty pleas were not knowingly and voluntarily entered. The Court stated in Neal:
In a case where the erroneous omission [to warn a defendant of his constitutional rights] is the basis for relief under a post-conviction petition, the defendant-petitioner must allege and prove the omission,....
810 S.W.2d at 139 (emphasis added). The obligation that the petitioner "allege and prove" grounds for relief includes compliance with the procedural requirements of the Post-Conviction Procedure Act, T.C.A. Secs. 40-30-101 to -124, including those regarding waiver. Section 40-30-104 provides in part,
(a) The petition shall briefly and clearly state:
....
(8) Any appeals and all other applications for relief previously filed including the date decided, the court, the grounds asserted and the result;
....
(10) Facts establishing the grounds on which the claim for relief is based, whether they have been previously presented to any court and, if not, why not.
The Act makes allowance for the need of legal advice in the preparation of a petition asserting a colorable claim. Section 40-30-107 provides:
No petition for relief shall be dismissed for failure to follow the prescribed form or procedure until after the judge has given the petitioner reasonable opportunity, with the aid of counsel, to file an amended petition.
The statute contemplates that after counsel has been appointed the petition will be amended, if necessary, so that when the petition is heard all grounds on which the petitioner may rely will be before the court. Section 40-30-115 provides that the trial court "may freely allow amendments and shall require amendments needed to achieve substantial justice and a full and fair hearing of all available grounds for relief." However, the statute makes clear that the limiting effect of Sec. 40-30-112 must be considered in determining "all available grounds for relief." That section provides:
(b)(1) A ground for relief is "waived" if the petitioner knowingly and understandingly failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented.
(2) There is a rebuttable presumption that a ground for relief not raised in any such proceeding which was held was waived.
These sections, considered together, mean that when a petition for post-conviction relief does not allege facts showing that the grounds asserted for relief were not waived in a prior proceeding in which they could have been presented, the petition does not present a colorable claim for relief and is subject to being dismissed without a hearing.
The question now is whether the petition should be dismissed because it does not state a colorable claim for relief or whether the case should be remanded for determination on its merits. The Court of Criminal Appeals noted that counsel did not amend the petition and directed that on remand the petition be amended "to show why these issues [asserting failure to comply with Boykin, 395 U.S. at 238, 89 S.Ct. at 1709] were not previously raised and for compliance with the procedures set forth in Swanson ." The posture of this case is substantially different from that of Swanson, in which this Court affirmed the Court of Criminal Appeals' decision that the case be remanded for appointment of counsel and an evidentiary hearing. Both the present case and Swanson began with a pro se petition. However, in Swanson the pro se petition undertook to explain why the ground asserted could not have been presented in a prior petition. Additionally, after the trial court summarily sustained the State's motion to dismiss, the petitioner filed a motion to reconsider, in which he requested the appointment of counsel and an opportunity to amend the petition. This Court affirmed the Court of Criminal Appeals' reversal of the dismissal, holding that the trial court, under the circumstances of the case, should not have dismissed the petition without the appointment of counsel or an evidentiary hearing.
The pro se petition in this case obviously was prepared by someone familiar with the procedural and substantive requirements...
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