Summary
In Collins, the trial court took "judicial notice of the [qualifications of trial counsel] and the properly executed [w]aivers of the [d]efendant."
Summary of this case from Charlton v. StateOpinion
No. 01C01-9603-CR-00120.
March 13, 1997.
WILSON COUNTY, HON. BOBBY CAPERS, JUDGE.
For the Appellant:
B. KEITH WILLIAMS.
For the Appellee:
CHARLES W. BURSON, Attorney General and Reporter, LISA A. NAYLOR, Assistant Attorney General, TOM P. THOMPSON, JR., District Attorney General, DAVID DURHAM, Assistant District Attorney General.
REVERSED AND REMANDED.
OPINION
The appellant, Garry E. Collins, appeals the trial court's dismissal of his petition for post-conviction relief. Petitioner is serving a life sentence for the offense of first degree felony murder. The petition for post-conviction relief was summarily dismissed without a hearing. We reverse and remand to the trial court for appointment of counsel and an opportunity to amend the petition.
I
In his pro se petition for post-conviction relief, Collins requested that his guilty plea to first degree felony murder be set aside. He specifically alleged that the guilty plea was involuntary, and he was denied effective assistance of counsel. In support of his contention that the guilty plea was involuntary, he alleged that when the trial court accepted his plea, he was not informed that he would be waiving fundamental constitutional rights such as the right to a jury trial, the right not to incriminate himself, the right to an attorney at every critical stage of the proceedings and the right to confront and cross-examine witnesses against him. Collins further asserted that he was denied effective assistance of counsel because his appointed counsel failed to advise him of the above-mentioned rights. The trial court summarily dismissed the petition taking ". . . judicial notice of the cirriculum (sic) vitae of the four (4) appointed counsel for the Defendant, and the properly executed Waivers of the Defendant . . ." The trial court relied on T.C.A. § 40-30-106(d).
II
This case is controlled by the Post-Conviction Procedure Act of 1995. It provides, in part:
[t]he petition 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. Failure to state a factual basis for the grounds alleged shall result in immediate dismissal of the petition. . . .
Collins' allegations relating to the voluntariness of his guilty plea and ineffective assistance of counsel state both a legal and factual basis which, if true, would entitle him to relief. The court may not take judicial notice of the qualifications of defense counsel and the contents of the waiver so as to conclusively determine the petition has no merit. Therefore, the petition should not have been dismissed pursuant to T.C.A. § 40-30-206(d). Counsel should be appointed to file an amended petition pursuant to T.C.A. § 40-30-206(e).
The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.
___________________________ JOE G. RILEY, JUDGE
CONCUR:
_____________________________________________________ JOHN H. PEAY, JUDGE
_____________________________________________________ JERRY L. SMITH, JUDGE