David Hartsell v. State of Tennessee ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
DAVID JOHNSON HARTSELL v. STATE OF TENNESSEE
Appeal from the Circuit Court for Washington County
No. 29257 Lynn Brown, Judge
No. E2003-03080-CCA-R3-PC
May 28, 2004
The petitioner, David Johnson Hartsell, appeals the order of the Circuit Court for Washington
County dismissing his post-conviction relief petition. The State has filed a motion requesting that
this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal
Appeals. The petition fails to present a cognizable claim for relief. Accordingly, the State's motion
is granted and the judgment of the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals
NORMA MCGEE OGLE, J, delivered the opinion of the court, in which JOSEPH M. TIPTON AND JAMES
CURWOOD WITT , JJ., joined.
David Johnson Hartsell, Petros, Tennessee, pro se.
Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; and Joe Crumley, District Attorney General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
According to his petition and his brief on appeal, the petitioner was convicted pursuant to
guilty pleas of three counts of felony driving under the influence of an intoxicant and two counts of
failure to appear in court. On May 12, 2003, he received five consecutive one-year sentences. No
direct appeal was apparently taken. On August 12, 2003, the petitioner filed an unsworn petition in
which he requested that the court grant him a hearing and post-conviction relief based only on the
“mitigating facts and circumstances in [his] cases and in his families (sic) life.” In a preliminary
order, the post-conviction court summarily dismissed the petition, finding that it failed to set forth
any verified facts to establish a colorable claim for relief. The court further denied the petitioner’s
motion for appointment of counsel. The instant appeal followed.1
"A clear but patently non-meritorious petition may be dismissed summarily,"without the
appointment of counsel or an evidentiary hearing.” Rickman v. State, 972 S.W. 2d 687, 692-3
(Tenn.Crim.App. 1997), quoting Martucci v. State, 872 S.W.2d 947, 949 (Tenn.Crim.App.1993);
Cureton v. Tollett, 477 S.W.2d 233, 236 (Tenn.Crim.App.1971). A petition sets forth a colorable
claim if it alleges facts showing that the conviction resulted from an abridgment of a constitutional
right and demonstrates that the ground for relief was not previously determined or waived. Rickman,
972 S.W. 2d at 693. See also, Tenn. Code Ann. §40-30-204(e). In the present case, the petitioner
failed to allege in his petition any facts at all in support of his general request for relief from his
convictions and sentences. This court concludes that the trial court properly dismissed the petition.
Accordingly, the state’s motion is granted. The judgment of the post-conviction court is
affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.
_______________________________________
NORMA McGEE OGLE, JUDGE
1
It appears that the notice of appeal is untimely filed. The order of dismissal was filed on October 28, 2003.
Notice of appeal, although signed by the petitioner on November 27, 2003, was not filed until December 15, 2003. There
is no evidence that the notice was delivered to prison authorities for mailing to the trial court clerk's office within the time
fixed for filing and is thereby deemed timely filed. See Tennessee Supreme Court Rule 28(g); Rule 20(g), T.R.A.P.
In view of the petitioner's pro se status and the lack of a motion to dismiss by the state, the court concludes that the filing
of the notice of appeal should be waived in the interest of justice. See Rule 4(a), T.R.A.P.
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