Charles Montague v. State of Tennessee ( 2001 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 21, 2001
CHARLES MONTAGUE v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Washington County
No. 22708 Lynn W. Brown, Judge
No. E2000-01330-CCA-R3-PC
September 4, 2001
The petitioner appeals from the post-conviction court’s summary dismissal of his post-conviction
relief petition for failing to be properly verified under oath. The issue is whether a petition for post-
conviction relief must be verified under oath and whether the petitioner’s “affidavit and sworn
statement” was sufficient to satisfy that requirement. We conclude that the post-conviction court
was correct in summarily dismissing the petition for failing to be properly verified under oath.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
JAMES CURWOOD WITT, JR., JJ., joined.
Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Charles Montague.
Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General;
Joe C. Crumley, Jr., District Attorney General; and Victor J. Vaughn, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
On August 6, 1996, the petitioner filed a pro-se petition for post-conviction relief. This
petition related to his convictions for possession of cocaine with intent to sell, possession of
marijuana, and possession of drug paraphernalia. The petitioner was originally convicted in 1990
and on appeal, received a new trial. He was again convicted in 1993 and appealed. The petitioner’s
convictions were affirmed on August 29, 1995. The Tennessee Supreme Court then denied his
application for permission to appeal. Therefore, his August 6, 1996, pro-se petition was timely filed.
Also in August of 1996, the petitioner was appointed counsel and an amended petition was
filed. On April 15, 1999, after countless continuances, the post-conviction court summarily
dismissed the petitioner’s petitions for failing to be properly verified. This appeal followed.
Analysis
Under Tennessee Code Annotated section 40-35-204(e), “[t]he petition [for post-conviction
relief] and any amended petition shall be verified under oath.” This provision governs all petitions
filed after May 10, 1995. The petitioner’s petition was filed and amended in August, 1996. As
such, the petition and any amendments required verification under oath. See Tenn. Code Ann. § 40-
35-204(e).
Discussion of verified documents usually arises in the context of analysis of properly
acknowledged documents. In Tennessee, acknowledged documents are ones which have been
notarized by a notary public or acknowledged in the presence of an official. See generally Cohen,
Tennessee Law on Evidence § 9.02[10] (4th ed. 2000). As defined in Black’s Law Dictionary,
“verify” means “[t]o prove to be true; to confirm or establish the truth or truthfulness of.” Black’s
Law Dictionary 1561 (6th ed. 1990). Black’s further explains, as an example of verification, that
“a verified complaint typically has an attached affidavit of plaintiff to the effect that the complaint
is true.” Id. There is no doubt that the essence of a verification is truthfulness of the document’s
contents. As Judge Koch explained in an opinion from the Court of Appeals, “[a]n acknowledgment
establishes the proper execution of the document while a verification establishes the truth of the
document’s contents.” D. T. McCall & Sons v. Seagraves, 796 S.W.2d 457, 463 (Tenn. Ct. App.
1990)(recognizing a distinction in Tennessee between an acknowledgment and a verification); see
also Varner v. Brown, No. 03A01-9405-CV-00171, 1994 WL 666902, at *2 (Tenn. Ct. App.
1994)(discussing the difference between an acknowledged document and a verified document for
purposes of self-authentication pursuant to Rule 902(8) of the Tennessee Rules of Evidence).
In the instant case, the pro se petition was devoid of any verification. However, it did contain
an affidavit and sworn statement which reads as follows:
First being duly sworn, I Charles Montague, do hereby swear that I drafted this Post-
Conviction Petition, and I have knowledge and understanding of the allegations
contained therein. Further affiant saith not.
The affidavit and sworn statement were signed by Charles Montague and sworn to and subscribed
before a notary public. The pro-se petition also contained a “Certificate of Service.” The amended
petition prepared by appointed counsel was devoid of any verification and oath. It was, however,
“Respectfully Submitted,” signed by appointed counsel, and contained a “Certificate of Service.”
The sworn statement in the pro se petition was clearly an acknowledgment that the petitioner
was aware of the contents of the documents, not that he swore to the truthfulness of such statements.
Furthermore, appointed counsel never verified that the contents of the amended petition were truthful
to the best of his knowledge. Thus, the petitioner’s affidavit and sworn statement, as well as his
amended petition, fail to state under oath that the facts contained in the petition are truthful.
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Conclusion
We conclude that merely swearing to having knowledge of the allegations contained in the
petition is insufficient to qualify as a verification under oath. To conclude otherwise would allow
a petitioner to file a petition which knowingly contained frivolous, false, and even perjured
allegations or statements of facts. As such, we affirm the post-conviction court summarily
dismissing the petitioner’s petition for post-conviction relief by finding the petition for post-
conviction relief was not properly verified under oath.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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