Billy Dean Sizemore v. State of Tennessee
M2016-02531-CCA-R3-PC
| Tenn. Crim. App. | Sep 26, 2017Background
- Billy Dean Sizemore was convicted by a Lewis County jury for delivery of a Schedule II controlled substance and sentenced as a persistent offender to 14 years; convictions affirmed on direct appeal and discretionary review denied.
- Undercover buy: confidential informants Dale and Kelly Potter arranged a recorded buy; agents equipped Mr. Potter with a transmitter/recorder and provided buy money; two morphine pills were recovered and tested as morphine.
- At trial the Potters testified they purchased two 60-mg morphine pills from Sizemore for $40; agents testified to their role and recovery of pills; credibility issues and informant payments were explored at trial.
- Petitioner filed a pro se post-conviction petition alleging ineffective assistance of counsel (primarily failure re: Rule 404(b) limiting instruction and failure to raise it post-trial/on appeal) and due process errors; counsel later appointed and amended the petition.
- The post-conviction court summarily dismissed the petition without an evidentiary hearing, finding the petitioner failed to prove allegations by clear and convincing evidence; the court had earlier found the petition colorable when appointing counsel.
- The State conceded the post-conviction court erred in summarily dismissing; the Court of Criminal Appeals reversed and remanded for an evidentiary hearing.
Issues
| Issue | Sizemore's Argument | State's Argument | Held |
|---|---|---|---|
| Whether post-conviction petition should have been summarily dismissed | Petition alleged colorable ineffective-assistance claim (trial counsel failed to request limiting instruction under Rule 404(b) and failed to raise it later); therefore entitled to evidentiary hearing | Post-conviction court found petitioner did not prove allegations and dismissed without hearing | Reversed — petitioner alleged facts which, taken as true, presented a colorable claim requiring an evidentiary hearing |
| Proper standard for summary dismissal of post-conviction petitions | Petition meets Howell colorable-claim standard; merits should be addressed at hearing | Post-conviction court applied clear-and-convincing standard at preliminary stage and dismissed | Court held applying clear-and-convincing proof at the preliminary stage is improper; only colorable-claim standard applies to survive dismissal |
| Whether the preliminary appointment of counsel affected dismissal | Appointment indicated court previously found a colorable claim; petitioner relied on that process to proceed to hearing | State argued ultimate lack of proof justified dismissal | Court noted appointment counsels that a colorable claim existed and that success on the merits is not required at preliminary stage |
| Whether failure to hold evidentiary hearing was harmless | Petitioner argued he was entitled to develop evidence and prove ineffective assistance at hearing | State conceded error in summary dismissal | Court remanded for evidentiary hearing to allow petitioner to prove allegations by clear and convincing evidence |
Key Cases Cited
- Howell v. State, 151 S.W.3d 450 (Tenn. 2004) (defines "colorable claim" standard and procedure for post-conviction hearings)
- Arnold v. State, 143 S.W.3d 784 (Tenn. 2004) (articulates that petition facts taken as true and viewed favorably determine whether petition survives summary dismissal)
- Burnett v. State, 92 S.W.3d 403 (Tenn. 2002) (standard of review for post-conviction court’s dismissal is de novo on the record)
- Charlton v. State, 987 S.W.2d 862 (Tenn. Crim. App.) (preliminary stage is not for adjudication of disputed facts; evidentiary hearing required when a colorable claim is alleged)