Troy Lynn Fox v. State of Tennessee ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville September 15, 2015
TROY LYNN FOX v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Wilson County
No. 09-CR-523 John D. Wootten, Jr., Judge
No. M2015-00249-CCA-R3-PC – Filed December 10, 2015
The Petitioner, Troy Lynn Fox, appeals the Wilson County Criminal Court‟s summary
dismissal of his petition for post-conviction relief from his conviction of first degree
premeditated murder and resulting sentence of life in the Department of Correction. On
appeal, he contends that his petition states a colorable claim for relief under the Post-
Conviction Procedure Act, thus entitling him to counsel and to an evidentiary hearing.
The State concedes that the trial court erred. Based upon the record and the parties‟
briefs, we agree with the Petitioner and the State, reverse the trial court‟s order
dismissing the petition, and remand this case to the trial court for the appointment of
counsel and an evidentiary hearing.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN,
and D. KELLY THOMAS, JR., JJ., joined.
Troy Lynn Fox, Pro se.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Tom P. Thompson, Jr., District Attorney General; and Brian Fuller, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In September 2011, a Wilson County Criminal Court Jury convicted the Petitioner
of first degree premeditated murder for beating and strangling his wife to death. State v.
Troy Lynn Fox, No. M2013-00579-CCA-R3CD, 2014 WL 820573, at *1, 4 (Tenn. Crim.
App. at Nashville, Feb. 28, 2014). On direct appeal of his conviction, the Petitioner
raised the following issues:
(1) whether the evidence was sufficient to sustain his
conviction; (2) whether the trial court erred by admitting
certain photographs into evidence-one, a photograph of the
murder victim that was taken while she was alive and, two,
multiple photographs of the crime scene and of the victim‟s
injuries, taken both at the scene and during the autopsy; (3)
whether the trial court erred by failing to conduct a jury-out
hearing prior to the admission of several photographs of the
victim taken at the crime scene and by describing those
photographs as “gross” in front of the jury; (4) whether the
trial court erred by requiring the Defendant to cross-examine
the victim‟s mother during the State‟s case-in-chief rather
than allowing the Defendant to recall her as a defense
witness; (5) whether the trial court erred by prohibiting the
Defendant from further development of the couple‟s social,
family, and marital history; (6) whether the trial court
committed reversible error in its instruction to the jury on the
impeachment of a witness; and (7) whether the trial court
demonstrated judicial bias against the Defendant.
Id. at *1. This court affirmed the Petitioner‟s conviction.
The Petitioner did not file an application for permission to appeal to our supreme
court but filed a timely pro se petition for post-conviction relief. In the petition, he
alleged that he received the ineffective assistance of trial counsel in that counsel failed to
file proper pretrial motions, such as a motion to suppress or motion for change of venue;
failed to object to the State‟s multiple requests for a continuance, which resulted in his
trial being rescheduled three times; failed to give all discovery materials to the Petitioner
or discuss a defense strategy with him; failed to interview and call witnesses at trial such
as the couple‟s marriage and fertility counselors and the Petitioner‟s stepmother; failed to
investigate all possible defenses; failed to prepare for trial adequately and meet with the
Petitioner; instructed the Petitioner to familiarize himself with “the Hearsay chapter from
Tennessee Rules of Evidence” because the Petitioner “had more time on [his] hands
than” counsel; failed to cross-examine the medical examiner about multiple inaccuracies
in the victim‟s autopsy report; failed to object to inadmissible evidence, such as a “life
photo” of the victim, and an incorrect jury instruction; forced the Petitioner to sign a
document relieving counsel of liability if the Petitioner testified; failed to recall two State
-2-
witness for the defense; and failed to request a mistrial during the State‟s cross-
examination of the Petitioner and closing arguments.
In a written order, the post-conviction court stated that it had “reviewed portions
of the record including the opinion of the Court of Criminal Appeals where in the
conviction was affirmed in all respects.” The court noted that the Petitioner “has outlined
seven pages of „facts detailing the denial of effective assistance of counsel‟” but found
that his assertions had been previously determined or were not “factually sufficient to
support a determination of ineffective assistance of counsel.” The court concluded that
the petition failed to state a colorable claim and dismissed it without the appointment of
counsel or an evidentiary hearing.
II. Analysis
The Petitioner contends, and the State concedes, that the post-conviction court
erred by summarily dismissing the petition for post-conviction relief. We agree.
The Post-Conviction Procedure Act provides that a petition for relief “must
contain a clear and specific statement of all grounds upon which relief is sought,
including full disclosure of the factual basis of those grounds. A bare allegation that a
constitutional right has been violated and mere conclusions of law shall not be sufficient
to warrant any further proceedings.” Tenn. Code Ann. § 40-30-106(d). The post-
conviction court shall dismiss a petition if it fails to state a colorable claim. See Tenn.
Code Ann. § 40-30-106(f). A colorable claim is defined as “a claim, in a petition for
post-conviction relief, that, if taken as true, in the light most favorable to petitioner,
would entitle petitioner to relief under the Post-Conviction Procedure Act.” Tenn. Sup.
Ct. R. 28, § 2(H). A post-conviction court‟s decision to summarily dismiss a petition for
post-conviction relief is reviewed de novo as a question of law. See Burnett v. State, 92
S.W.3d 403, 406 (Tenn. 2002).
Initially, we note that pro se petitions often are inartfully drafted and that pro se
petitioners are not held to the same stringent drafting standards as attorneys. See Gable
v. State, 836 S.W.2d 558, 559-60 (Tenn. 1992) (citing Swanson v. State, 749 S.W.2d
731, 734 (Tenn. 1988)). With that in mind, we believe the petition makes allegations
that, if taken as true, would establish a claim for relief based upon the ineffective
assistance of counsel. For example, the petition alleges that trial counsel failed to prepare
the Petitioner for his trial testimony; failed to file a motion to suppress his interview with
Wilson County detectives; and failed to interview and call witnesses that would have
testified regarding the victim‟s abuse of the Petitioner and their oldest child. Moreover,
most of the issues underlying the Petitioner‟s ineffective assistance of counsel claim were
never raised on direct appeal. Therefore, we conclude that the petition states a colorable
-3-
claim for relief that entitles the Petitioner to the appointment of counsel, the amendment
of the petition, and an evidentiary hearing.
III. Conclusion
Based upon the record and the parties‟ briefs, we reverse the judgment of the post-
conviction court and remand this case for further proceedings consistent with this
opinion.
_________________________________
NORMA MCGEE OGLE, JUDGE
-4-