IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED JULY 31, 1998 SESSION September 11, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk MARIO BOWSER, ) ) NO. 02C01-9803-CR-00093 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. CAROLYN WADE STATE OF TENNESSEE, ) BLACKETT, JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
MARIO BOWSER, Pro Se JOHN KNOX WALKUP #269851 Attorney General and Reporter Cold Creek Correctional Facility P.O. Box 1000 GEORGIA BLYTHE FELNER Henning, TN 38041 Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
MICHAEL H. LEAVITT Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947
OPINION FILED:
REVERSED AND REMANDED
JOE G. RILEY, JUDGE OPINION
The petitioner, Mario Bowser, appeals the order of the Shelby County
Criminal Court denying his “Motion For Post-Conviction Relief Filing To Be Held In
Abeyance.” On appeal, he claims that the trial court abused its discretion in denying
the requested relief and maintains that counsel should be appointed with leave to
file an amended petition. We hold that the trial court erred in not appointing counsel
to file an amended petition.
I
On January 21, 1997, petitioner entered guilty pleas to two (2) counts of
aggravated assault, two (2) counts of attempted first degree murder and aggravated
perjury. No appeal was taken from petitioner’s convictions.
On January 16, 1998, petitioner filed a “Motion For Post-Conviction Relief
Filing To Be Held In Abeyance,” requesting 180 days to file a post-conviction
petition “due to the fact he is trying to purchase records to use as evidence in post-
conviction proceeding that will show proof-in-facts as stipulated to were erroneous
and false upon entering his guilty plea.” Petitioner further alleged that his guilty
pleas in January 1997 were involuntary due to the fact that he received ineffective
assistance of counsel. The trial court found that there is no provision in Tennessee
law which would allow or mandate the tolling of the statue of limitations for post-
conviction filing, except under narrow, statutorily defined circumstances.
Accordingly, the trial court summarily denied petitioner’s motion.
II
A.
In several prior cases, this Court has ruled upon similar issues. In Charles
Frank Griffin v. State, C.C.A. No. 1161, Hamilton County (Tenn. Crim. App. filed
2 June 21, 1990, at Knoxville), the petitioner filed documents similar to the present
case entitled “Petition for Post Conviction Relief Filing to be Held in Abeyance” and
“Motion for Additional Time for Filing of Post-Conviction Relief.” However, in those
documents, the petitioner did not allege a constitutional violation and filed the
documents two (2) days after the expiration of the statute of limitations. This Court
upheld the trial court’s summary dismissal, basing its decision on the petitioner’s
failure to allege a constitutional violation and the untimely filing of the pleadings.
Charles Frank Griffin v. State, No. 1161, 1990 Tenn. Crim. App. LEXIS 422, at *1-2.
In another case, the petitioner filed a “petition for post-conviction relief filing
to be held in abeyance” on the day prior to the expiration of the statute of limitations.
Billy Ferrell Waddell v. State, C.C.A. No. 03C01-9107-CR-197, Knox County (Tenn.
Crim. App. filed January 28, 1992, at Knoxville). In this document, the petitioner did
not directly allege any ground for relief but requested additional time to file his
petition. Approximately two weeks after the petitioner filed this document, he filed
a petition for post-conviction relief. This Court concluded that the first document
“was a sufficient petition to get the appellant’s petition before the court.” Billy Ferrell
Waddell v. State, No. 03C01-9107-CR-197, 1992 Tenn. Crim. App. LEXIS 60, at *1.
The Court noted that Tennessee law favors substance over form in post-conviction
matters. Id. The Court then found that the prior document was the petition for post-
conviction relief, and the second document was an amendment to the petition. Id.
Thus, the Court reversed the trial court’s decision denying relief and remanded for
an evidentiary hearing. Id.
Recently, in Earl Crawford, Jr. v. State, C.C.A. No. 03C01-9610-CR-00385,
Bradley County (Tenn. Crim. App. filed July 29, 1997, at Knoxville), the petitioner
filed a similar pleading two (2) days prior to the expiration of the statute of
limitations. The document alleged no constitutional violations, but claimed that the
petitioner would subsequently file a post-conviction petition “as to the improper and
illegal methods utilized by the state to secure said sentences against petitioner.”
Earl Crawford, Jr. v. State, No. 03C01-9610-CR-00385, 1997 Tenn. Crim. App.
LEXIS 721, at *1. This Court affirmed the trial court’s dismissal of the pleading,
3 holding that the petitioner alleged no facts showing a constitutional abridgement
and, therefore, did not allege a colorable claim upon which to base the petition. Id.
at *2.
B.
When a post-conviction petition alleges a colorable claim for relief, it should
not be dismissed upon technical grounds but should be heard on its merits. Allen
v. State, 854 S.W.2d 873, 875 (Tenn. 1993). This is especially true regarding pro
se petitions. Id. Indeed,
a pro se petition under the Act is “held to less stringent standards than formal pleadings drafted by lawyers, and 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.” Baxter v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975) (citation omitted). Furthermore, when a colorable claim is presented in a pro se petition, dismissal without appointment of counsel to draft a competent petition is rarely proper. Id. See also Mayes v. State, 671 S.W.2d 857, 858 (Tenn. Crim. App. 1984). If the availability of relief cannot be conclusively determined from a pro se petition and the accompanying records, the petitioner must be given the aid of counsel. T.C.A. §§ 40-30-104, 40-30-107, 40-30-115. . . As the Court of Criminal Appeals stated in State v. Butler, 670 S.W.2d 241 (Tenn. Cr. App. 1984), “the assistance of counsel is necessary to aid both the petitioner and the courts in bringing this matter to a proper conclusion.” Id., at 243.
Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988).
C.
This Court recognizes that the present petition is controlled by the 1995 Post-
Conviction Procedure Act (Tenn. Code Ann. § 40-30-201, et. seq) and the above
cases were decided under the prior Act (Tenn. Code Ann. § 40-30-101, et. seq).
The current statute, Tenn. Code Ann. § 40-30-206
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED JULY 31, 1998 SESSION September 11, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk MARIO BOWSER, ) ) NO. 02C01-9803-CR-00093 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. CAROLYN WADE STATE OF TENNESSEE, ) BLACKETT, JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
MARIO BOWSER, Pro Se JOHN KNOX WALKUP #269851 Attorney General and Reporter Cold Creek Correctional Facility P.O. Box 1000 GEORGIA BLYTHE FELNER Henning, TN 38041 Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
MICHAEL H. LEAVITT Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947
OPINION FILED:
REVERSED AND REMANDED
JOE G. RILEY, JUDGE OPINION
The petitioner, Mario Bowser, appeals the order of the Shelby County
Criminal Court denying his “Motion For Post-Conviction Relief Filing To Be Held In
Abeyance.” On appeal, he claims that the trial court abused its discretion in denying
the requested relief and maintains that counsel should be appointed with leave to
file an amended petition. We hold that the trial court erred in not appointing counsel
to file an amended petition.
I
On January 21, 1997, petitioner entered guilty pleas to two (2) counts of
aggravated assault, two (2) counts of attempted first degree murder and aggravated
perjury. No appeal was taken from petitioner’s convictions.
On January 16, 1998, petitioner filed a “Motion For Post-Conviction Relief
Filing To Be Held In Abeyance,” requesting 180 days to file a post-conviction
petition “due to the fact he is trying to purchase records to use as evidence in post-
conviction proceeding that will show proof-in-facts as stipulated to were erroneous
and false upon entering his guilty plea.” Petitioner further alleged that his guilty
pleas in January 1997 were involuntary due to the fact that he received ineffective
assistance of counsel. The trial court found that there is no provision in Tennessee
law which would allow or mandate the tolling of the statue of limitations for post-
conviction filing, except under narrow, statutorily defined circumstances.
Accordingly, the trial court summarily denied petitioner’s motion.
II
A.
In several prior cases, this Court has ruled upon similar issues. In Charles
Frank Griffin v. State, C.C.A. No. 1161, Hamilton County (Tenn. Crim. App. filed
2 June 21, 1990, at Knoxville), the petitioner filed documents similar to the present
case entitled “Petition for Post Conviction Relief Filing to be Held in Abeyance” and
“Motion for Additional Time for Filing of Post-Conviction Relief.” However, in those
documents, the petitioner did not allege a constitutional violation and filed the
documents two (2) days after the expiration of the statute of limitations. This Court
upheld the trial court’s summary dismissal, basing its decision on the petitioner’s
failure to allege a constitutional violation and the untimely filing of the pleadings.
Charles Frank Griffin v. State, No. 1161, 1990 Tenn. Crim. App. LEXIS 422, at *1-2.
In another case, the petitioner filed a “petition for post-conviction relief filing
to be held in abeyance” on the day prior to the expiration of the statute of limitations.
Billy Ferrell Waddell v. State, C.C.A. No. 03C01-9107-CR-197, Knox County (Tenn.
Crim. App. filed January 28, 1992, at Knoxville). In this document, the petitioner did
not directly allege any ground for relief but requested additional time to file his
petition. Approximately two weeks after the petitioner filed this document, he filed
a petition for post-conviction relief. This Court concluded that the first document
“was a sufficient petition to get the appellant’s petition before the court.” Billy Ferrell
Waddell v. State, No. 03C01-9107-CR-197, 1992 Tenn. Crim. App. LEXIS 60, at *1.
The Court noted that Tennessee law favors substance over form in post-conviction
matters. Id. The Court then found that the prior document was the petition for post-
conviction relief, and the second document was an amendment to the petition. Id.
Thus, the Court reversed the trial court’s decision denying relief and remanded for
an evidentiary hearing. Id.
Recently, in Earl Crawford, Jr. v. State, C.C.A. No. 03C01-9610-CR-00385,
Bradley County (Tenn. Crim. App. filed July 29, 1997, at Knoxville), the petitioner
filed a similar pleading two (2) days prior to the expiration of the statute of
limitations. The document alleged no constitutional violations, but claimed that the
petitioner would subsequently file a post-conviction petition “as to the improper and
illegal methods utilized by the state to secure said sentences against petitioner.”
Earl Crawford, Jr. v. State, No. 03C01-9610-CR-00385, 1997 Tenn. Crim. App.
LEXIS 721, at *1. This Court affirmed the trial court’s dismissal of the pleading,
3 holding that the petitioner alleged no facts showing a constitutional abridgement
and, therefore, did not allege a colorable claim upon which to base the petition. Id.
at *2.
B.
When a post-conviction petition alleges a colorable claim for relief, it should
not be dismissed upon technical grounds but should be heard on its merits. Allen
v. State, 854 S.W.2d 873, 875 (Tenn. 1993). This is especially true regarding pro
se petitions. Id. Indeed,
a pro se petition under the Act is “held to less stringent standards than formal pleadings drafted by lawyers, and 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.” Baxter v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975) (citation omitted). Furthermore, when a colorable claim is presented in a pro se petition, dismissal without appointment of counsel to draft a competent petition is rarely proper. Id. See also Mayes v. State, 671 S.W.2d 857, 858 (Tenn. Crim. App. 1984). If the availability of relief cannot be conclusively determined from a pro se petition and the accompanying records, the petitioner must be given the aid of counsel. T.C.A. §§ 40-30-104, 40-30-107, 40-30-115. . . As the Court of Criminal Appeals stated in State v. Butler, 670 S.W.2d 241 (Tenn. Cr. App. 1984), “the assistance of counsel is necessary to aid both the petitioner and the courts in bringing this matter to a proper conclusion.” Id., at 243.
Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988).
C.
This Court recognizes that the present petition is controlled by the 1995 Post-
Conviction Procedure Act (Tenn. Code Ann. § 40-30-201, et. seq) and the above
cases were decided under the prior Act (Tenn. Code Ann. § 40-30-101, et. seq).
The current statute, Tenn. Code Ann. § 40-30-206(d), requires a petition for post-
conviction relief to be “clear and specific . . . including full disclosure of the factual
basis of [the] grounds. . . 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.” The trial
court may appoint counsel to file an amended petition. Tenn. Code Ann. § 40-30-
206(e).
Although the petition in this case is styled as a motion and requests leave to
subsequently file a petition for post-conviction relief, we conclude this pro se
4 pleading sufficiently alleges a colorable claim for relief under the 1995 Act. The
pleading specifically alleges an involuntary guilty plea and ineffective assistance of
counsel. The pleading states, in pertinent part:
Petitioner contemplates filing a petition for post-conviction relief challenging the involuntariness of his guilty plea entered on 1-21-97 wherein he was rendered ineffective assistance of counsel when court appointed counsel refused to investigate the facts of the case to be in an informed position to properly prepare an adequate defense to the case that would place the State’s evidence through an adversarial testing process in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 8 and 9 of the Tennessee Constitution. Petitioner contends that he was forced, pressured, and intimidated into entering his guilty plea.
D.
We acknowledge that the trial court was correct in its determination that the
Post-Conviction Procedure Act of 1995 does not authorize tolling the statute of
limitations upon request of a petitioner. However, favoring substance over form, we
do not construe the motion narrowly. The allegations in the pleading sufficiently
allege constitutional violations to warrant the appointment of counsel. We,
therefore, remand this case to the trial court for appointment of counsel and the
filing of an amended petition.
JOE G. RILEY, JUDGE
CONCUR:
PAUL G. SUMMERS, JUDGE
DAVID G. HAYES, JUDGE