Dorothy Denise Cross v. State of Tennessee ( 2016 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    Assigned on Briefs September 20, 2016
    DOROTHY DENISE CROSS v. STATE OF TENNESSEE
    Appeal from the Criminal Court for Knox County
    No. 105657    Bob R. McGee, Judge
    No. E2016-00104-CCA-R3-PC – Filed October 19, 2016
    The petitioner, Dorothy Denise Cross, appeals the Knox County Criminal Court‟s
    summary dismissal of her petition for post-conviction relief. The State concedes that the
    post-conviction court erred in summarily dismissing the petition. Following our review,
    we reverse the judgment of the post-conviction court and remand for an evidentiary
    hearing.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
    and Remanded for Evidentiary Hearing
    ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
    P.J., and ROBERT H. MONTGOMERY, JR., J., joined.
    J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Dorothy Denise Cross.
    Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
    Attorney General; Charme P. Allen, District Attorney General; and Nathaniel R. Ogle,
    Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    FACTS
    The petitioner was convicted of four counts of misdemeanor assault, which the
    trial court merged into a single count and sentenced the petitioner to eleven months,
    twenty-nine days on supervised probation. This court affirmed the petitioner‟s conviction
    and sentence on direct appeal. State v. Dorothy Denise Cross, No. E2013-02133-CCA-
    R3-CD, 
    2014 WL 4748337
    , at *1 (Tenn. Crim. App. Sept. 25, 2014).
    On June 15, 2015, the petitioner filed a pro se petition for post-conviction relief,
    alleging various claims of ineffective assistance of trial counsel. Following the
    appointment of counsel, two amended petitions were filed. In her second amended
    petition filed on November 13, 2015, the petitioner alleged that trial counsel was
    ineffective for not seeking a continuance due to the petitioner‟s mental state at the time of
    trial. The petitioner claimed that her “distressed mental and emotional state likely
    influenced the jury‟s perception of her credibility in a way detrimental to her defense”
    and that if trial counsel had sought and obtained a continuance, she would have received
    a more favorable outcome.
    The post-conviction court summarily dismissed the petition on December 16,
    1
    2015, finding:
    [T]here‟s no allegation that [the petitioner‟s] behavior was in any way so
    grossly distorted that the attorney should have noticed something was
    wrong with her . . . . There‟s no evidence that . . . the attorney knew that
    she was in any stress or that he should have known that she was in distress,
    or that a continuance would have been granted had he sought one.
    Thereafter, the petitioner filed a timely appeal to this court.
    ANALYSIS
    The petitioner argues that the post-conviction court erred in summarily dismissing
    her petition because trial counsel was ineffective for not seeking a continuance of the trial
    to allow the petitioner to be “less mentally and emotionally distressed” so that she “would
    have been better able to calmly communicate her recollection of the events to the jury, at
    a later date when she was not as distressed.” The State concedes that the court erred in
    summarily dismissing the petition for post-conviction relief. We review the post-
    conviction court‟s dismissal of the petition, as an issue of law, de novo on the record
    without a presumption of correctness. See Burnett v. State, 
    92 S.W.3d 403
    , 406 (Tenn.
    2002).
    Section 40-30-106 of the Post-Conviction Procedure Act provides in pertinent
    part:
    (d) The 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
    1
    After the petitioner filed her second amended petition, the State filed a motion to dismiss the
    petition, which the post-conviction court dismissed after hearing arguments of counsel.
    2
    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. If, however, the
    petition was filed pro se, the judge may enter an order stating that the
    petitioner must file an amended petition that complies with this section
    within fifteen (15) days or the petition will be dismissed.
    (e) If a petition amended in accordance with subsection (d) is
    incomplete, the court shall determine whether the petitioner is indigent and
    in need of counsel. The court may appoint counsel and enter a preliminary
    order if necessary to secure the filing of a complete petition. Counsel may
    file an amended petition within thirty (30) days of appointment.
    (f) Upon receipt of a petition in proper form, or upon receipt of an
    amended petition, the court shall examine the allegations of fact in the
    petition. If the facts alleged, taken as true, fail to show that the petitioner is
    entitled to relief or fail to show that the claims for relief have not been
    waived or previously determined, the petition shall be dismissed. The order
    of dismissal shall set forth the court‟s conclusions of law.
    Tenn. Code Ann. § 40-30-106(d)-(f). A petition presents a “colorable claim,” sufficient
    to withstand summary dismissal, when the facts alleged, “„taken as true‟” and “„in the
    light most favorable to [the] petitioner‟” would entitle the petitioner to relief under the
    Post-Conviction Procedure Act. Arnold v. State, 
    143 S.W.3d 784
    , 786 (Tenn. 2004)
    (quoting Tenn. Sup. Ct. R. 28, § 2(H)).
    In her second amended petition, the petitioner asserted that she was denied the
    effective assistance of counsel because “had trial counsel sought and obtained a
    continuance for the [p]etitioner to recover mentally and emotionally before proceeding to
    trial, there is a material likelihood that her testimony would have been perceived more
    credibl[e] by the jury and that she would have received a more favorable outcome.” In
    the light most favorable to the petitioner, the allegations in her petition state a colorable
    claim for post-conviction relief. Therefore, the post-conviction court erred in summarily
    dismissing the petition.
    CONCLUSION
    Based upon the foregoing, we reverse the judgment of the post-conviction court
    3
    and remand the case for an evidentiary hearing.
    _________________________________
    ALAN E. GLENN, JUDGE
    4
    

Document Info

Docket Number: E2016-00104-CCA-R3-PC

Judges: Judge Alan E. Glenn

Filed Date: 10/19/2016

Precedential Status: Precedential

Modified Date: 10/20/2016