State of Tennessee v. Christina Kay Deering

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE v. CHRISTINA KAY DEERING

Appeal from the Circuit Court for Jefferson County

No. 21985 O. Duane Slone, Judge

No. E2009-01572-CCA-R3-PC - Filed May 11, 2010

The petitioner, Christina Kay Deering, appeals from the Jefferson County Circuit Court’s

dismissal of a petition for post-conviction relief filed on her behalf by her mother, Melissa

Deering. The State has moved to have this court summarily affirm the dismissal pursuant to

Rule 20 of the Rules of the Court of Criminal Appeals. We grant the motion and affirm the

order of dismissal pursuant to Rule 20.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD

W ITT, J R. and D. K ELLY T HOMAS, J R., J.J., joined.

Christina Deering, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney

General, for the appellee, State of Tennessee.

MEMORANDUM OPINION

On November 26, 2008, the petitioner’s mother, Melissa Deering, filed a

petition for post-conviction relief on behalf of the petitioner, and without the benefit of

counsel, which was neither signed nor verified by the petitioner. The petition challenged the

petitioner’s convictions for driving under the influence (DUI) and domestic assault.

According to the petition, the petitioner pled guilty to these offenses as a result of ineffective

assistance on the part of her court-appointed trial counsel. The petition asserts that the

petitioner suffers from panic attacks, claustrophobia and severe and chronic depression. The

petition also states: “Christina does not comprehend much.”

The post-conviction court dismissed the petition on grounds that the

petitioner’s mother lacked standing to file the petition on the petitioner’s behalf. The

petitioner timely filed a Notice of Appeal from the post-conviction court’s dismissal of the

petition. The Notice of Appeal is signed by the petitioner.

The State argues that this court should summarily affirm the order of dismissal

for several reasons. First, the petition was neither signed nor verified by the petitioner as

required by Tenn. Code Ann. § 40-30-104(d). Second, the petition contained no allegation

that the petitioner was unable or incapable of signing or verifying the allegations made in the

petition such that the petition could be filed on her behalf by her mother. Third, the petition

does not indicate that the petitioner was assisted by a licensed attorney in drafting the

petition. Instead, the petition clearly indicates that it was filed on the petitioner’s behalf by

her mother, who is not a licensed attorney.

In a response to the State’s motion, which was signed by the petitioner but

clearly prepared by her mother, the petitioner concedes that her mother is not a licensed

attorney. However, the response asserts that both the petitioner and her mother were misled

by the Board of Professional Responsibility into believing that it was not necessary to have

an attorney file the petition on behalf of the petitioner because an attorney would be

appointed to represent her after the petition was filed, if she was indigent.

The Post-Conviction Procedure Act of 1995 provides that a petition for post-

conviction relief may only be filed by “a person in custody under a sentence of a court of this

state.” Tenn. Code Ann. § 40-30-102(a). The petition must be signed and verified by the

petitioner under oath. See Tenn. Code Ann. § 40-30-104(d). A petition may be filed without

the benefit of an attorney; however, if the petitioner obtains drafting assistance or advice

regarding the filing of the petition, he or she must provide the name of the licensed attorney

providing such assistance or advice in the petition. See Tenn. Code Ann. § 40-30-104(f).

The petition in this case was not filed by the petitioner, nor was it signed or

verified by her.1 Instead, the petition was drafted and filed by the petitioner’s mother, an

individual who is not licensed to practice law. The State concedes in the motion for

1

We note that the petitioner filed a document, after the post-conviction court dismissed the petition

but before she filed her Notice of Appeal, entitled “Pauper’s Oath” in which attested under oath that she was

“justly entitled to [the] relief sought, to the best of her belief.” We cannot accept this sworn statement as a

cure to the lack of verification in the petition because this document is not a verification of the truthfulness

of the statements made by the petitioner’s mother in the petition. Cf. Charles Montague v. State, No. E2000-

01330-CCA-R3-PC, slip op. at 2-3 (Tenn. Crim. App., Knoxville, Sept. 4, 2001) (concluding that swearing

to having knowledge of the allegations contained within a petition for post-conviction was insufficient to

satisfy the requirement that the petitioner swear to the truthfulness of the allegations in the petition).

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summary affirmance that, in accordance with the statute, a judge may provide a pro se

petitioner with leave to amend a defective petition before dismissing it based on the defects.

See Tenn. Code Ann. § 40-30-106(d). The State also concedes that it is generally considered

an abuse of discretion for a post-conviction court to summarily dismiss a petition, without

granting leave to amend, solely on the basis that it is not verified under oath. See, e.g., Jerry

Timberlake v. State, No. W2008-000370-CCA-R3-PC, slip op. at 3-4 (Tenn. Crim. App.,

Jackson, Feb. 5, 2009). However, as the State asserts in its motion, the lack of verification

was not the only or most glaring defect present in this case.

The petition was filed and signed by a non-lawyer, on behalf of the petitioner,

without any assertion that the petitioner was mentally incompetent at the time the petition

was filed. While a petition for post-conviction relief may be filed by a “next friend” on

behalf of a petitioner who has not signed the petition or verified its allegations under oath,

such a petition cannot be considered unless it makes a prima facie showing of the petitioner’s

“present mental incompetency ‘by attaching to the petition affidavits, depositions, medical

reports, or other credible evidence that contain specific factual allegations showing the

petitioner’s incompetence.’” Holton v. State, 201 S.W.3d 626, 634 (Tenn. 2006). “Mere

assertions or allegations of past or present mental incompetency are not sufficient.” Id.

The petition in this case contains allegations about the petitioner’s poor mental

health and limited mental capacity. However, it neither alleged nor demonstrated through

any attached documentation that the petitioner was mentally incompetent at the time the

petition was filed. As such, the petition was properly dismissed by the post-conviction court.

See id. at 636 (dismissing “next friend” petitions for post-conviction relief, which had neither

been signed nor verified by the capital petitioners on whose behalf they had been filed,

because said petitions failed to establish a proper basis upon which the proceedings could be

initiated by the “next friend”). The State’s motion is therefore granted and the order

dismissing the petition for post-conviction relief is summarily affirmed. This disposition

renders moot all pending motions filed by the petitioner.

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NORMA MCGEE OGLE, JUDGE

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