Weston v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1998 SESSION March 25, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
JAMES BRYANT WESTON, )
) C.C.A. No. 03C01-9612-CR-00484
Appellant, )
) Knox County
V. )
) Honorable Mary Beth Leibowitz, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Thomas G. Slaughter John Knox Walkup
Attorney at Law Attorney General & Reporter
602 S. Gay Street
Suite 600 Marvin E. Clements, Jr.
Knoxville, TN 37902 Assistant Attorney General
Criminal Justice Division
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Robert J. Jolley, Jr.
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED: ___________________
REVERSED AND REMANDED
FOR EVIDENTIARY HEARING
PAUL G. SUMMERS,
Judge
OPINION
James Bryant Weston, the appellant, filed a petition for post-conviction
relief in the Knox County Criminal Court. The court dismissed the petition
without an evidentiary hearing. The issue is whether the trial court erred in
dismissing the petition without holding an evidentiary hearing. We respectfully
reverse the judgment of the trial court.
The appellant pled guilty to felony murder and especially aggravated
robbery. The court sentenced the appellant to life in prison plus 25 years with
the sentences to be served consecutively.
The appellant filed a pro se petition for post-conviction relief. He alleged
ineffective assistance of counsel, double jeopardy, denial of a speedy trial,
“procedural default,” and involuntary and unknowing guilty pleas. After
preliminary consideration, the court found that the petition presented a colorable
claim. See T.C.A. § 40-30-206 (Supp. 1995). The court appointed counsel to
represent the appellant and to file an amended petition. The state was ordered
to file an answer, but we cannot find one in this record.
In the amended petition, the appellant alleged that his guilty pleas were
involuntarily and unknowingly entered based on the ineffectiveness of his
counsel. The appellant alleged that his attorney erroneously advised the
appellant that he would be eligible for parole after serving 30% of a life sentence
based on 60 years. He alleges that he will not be eligible for parole until after he
has served 25 years of his life sentence. The appellant further alleges that, if he
had been informed correctly, he would not have pled guilty. Generally, a failure
to correctly inform the appellant about parole eligibility dates, without more,
would not be a basis for post-conviction relief. Wolley v. State, C.C.A. No.
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01C01-9311-CR-00402 (Tenn. Crim. App. at Nashville, Oct. 20, 1994).
However, it may be evidence that his pleas were involuntary and unknowing.
The appellant alleges that his guilty pleas were involuntary because he
was unduly influenced by his attorney to accept the plea bargain agreement.
The appellant alleges that he told his attorney that he wanted to go to trial. He
alleges that his attorney said that there was no way to fight the case; and that if
the appellant did not take the plea, he would end up on death row. The
appellant persisted on going to trial. The appellant alleges that his attorney had
a death row inmate talk to the appellant about what life is like on death row. He
also alleges that his attorney brought an African-American attorney from
Nashville to talk to the appellant about how to stay off of death row and to
encourage the appellant to take the plea agreement.
The amended petition incorporated the allegations set forth in the
appellant’s pro se petition. The appellant alleged that he was denied the right to
a speedy trial and that he was punished twice for the same crime in violation of
the double jeopardy clause.
After examining the record, the transcript of the guilty plea hearing, and
the appellant’s statement that is attached as an exhibit to the transcript, the court
dismissed the petition for failure to state a colorable claim. See T.C.A. § 40-30-
209(a) (Supp. 1995). The court found that the appellant understood that he was
charged with first degree murder and that the state was seeking the death
penalty. The court further found that the trial court reviewed the plea agreement
with the appellant, and that he fully understood the terms of the agreement. The
court stated that there was no proof in the record, other than bare allegations,
that the appellant was pressured into entering into the plea agreement. The
court held that the appellant’s allegations of a denial of the right to a speedy trial
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and the incorrect information about his parole eligibility date were not grounds for
post-conviction relief.
The trial court dismissed the petition pursuant to Tennessee Code
Annotated § 40-30-209(a) which provides that if, after reviewing the petition, the
response, files, and records, the court determines that the petitioner is entitled to
no relief, the court shall dismiss the petition. The appellant argues that the court
should have held a hearing because the court had previously ruled that his
petition stated a colorable claim. He argues that he has been denied the right to
present evidence to prove the allegations in his petition that state a claim.
“In order to make a claim ‘colorable’ or actionable, the pro se petitioner
must assert a basic theory of relief. This court has defined a ‘colorable’ claim,
under the statutory law in existence prior to the 1995 Act, ‘as one that alleges
facts showing that the conviction resulted from an abridgment of a constitutional
right . . . .’” Waite v. State, 948 S.W.2d 283, 284-85 (Tenn. Crim. App. 1997)
(citations omitted). The test is whether it appears beyond doubt that the
petitioner can prove no set of facts in support of his claim which would entitle him
to relief. See id. at 285. A petition that states a colorable claim for relief is to be
considered on its merits. Id.The appellant ostensibly has stated a colorable claim of whether his guilty
pleas were knowingly and voluntarily entered. If a guilty plea is not voluntary and
knowing, it has been entered in violation of a defendant’s constitutional rights
and is, therefore, voidable. Boykin v. Alabama, 395 U.S. 238 (1969). The
appellant should be allowed to present evidence to prove his allegations of
duress and coercion. It appears that the trial court considered the guilty plea
transcript, including the appellant’s incriminating statement to the police, as
conclusive evidence that the pleas were entered knowingly and voluntarily.
Indeed, the transcript is persuasive evidence. The incriminating statement given
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to police indicates that the appellant was a participant in a robbery during which
a vicitm was murdered. The appellant denied that he was the person who
murdered the victim, but he admitted that he was present during the robbery.
“[E]ven when it is unlikely that a petitioner could adequately establish the
violation of his constitutional rights, the new post-conviction statute contemplates
and due process requires that he at least be afforded the opportunity.” Waite,
948 S.W.2d at 285.
The judgment of the trial court is respectfully reversed. This case is
remanded for an evidentiary hearing on the merits of the appellant’s post-
conviction petition. Such reversal of the judgment is in no way a substantive
determination of the merits of the allegations.
__________________________
PAUL G. SUMMERS, Judge
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CONCUR:
______________________________
JOHN H. PEAY, Judge
______________________________
CORNELIA A. CLARK, Special Judge
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