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Hagerman v. State

Court of Criminal Appeals of Tennessee, Knoxville

May 9, 2017

GWENDOLYN HAGERMAN
v.
STATE OF TENNESSEE

          Assigned on Briefs March 21, 2017

         Appeal from the Criminal Court for Sullivan County No. C65178 James F. Goodwin, Judge

         Petitioner, Gwendolyn Hagerman, was convicted of five counts of rape of a child and sentenced to an effective sentence of sixty years. Subsequently, she sought post-conviction relief on the basis of ineffective assistance of counsel. The post-conviction court denied relief and dismissed the petition. Petitioner appealed. After a review, we affirm the denial of post-conviction relief.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Kenneth E. Hill, Kingsport, Tennessee, for the appellant, Gwendolyn Hagerman.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Barry P. Staubus, District Attorney General; and Teresa Nelson, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which John Everett Williams and J. Ross Dyer, JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         In October of 2009, the Sullivan County Grand Jury indicted Petitioner on ten counts of rape of a child and one count of statutory rape involving her then-girlfriend's daughter. In September of 2010, the Sullivan County Grand Jury issued a superseding presentment against Petitioner for six counts of rape of a child. On the first day of trial, the State moved to dismiss count six of the presentment. The proof at trial painted a story of Petitioner's sexual abuse of the victim, whom she referred to as "Baby Girl, " beginning just prior the victim's twelfth birthday. At the conclusion of the proof, Petitioner was found guilty of five counts of rape of a child. See State v. Gwendolyn Hagerman, No. E2011-002233-CCA-R3-CD, 2013 WL 2445364, at *1-28 (Tenn. Crim. App. June 4, 2013), perm. app. granted (Tenn. Nov. 13, 2013).

         The trial court initially sentenced Petitioner to twenty-five years for each conviction and ordered partial consecutive sentencing for a total effective sentence of seventy-five years at 100% service. The trial court later resentenced Petitioner to twenty years on each count with partial consecutive sentencing for a total effective sentence of sixty years at 100%. The reason behind the resentencing is not entirely clear from the record; however, it appears that Petitioner's sentences were modified to the presumptive length of twenty years under the law applicable to the crimes at the time. See T.C.A. § 40-35-210(c) (2003) (amended 2005); Blakely v. Washington, 542 U.S. 296, 305 (2004).

         On direct appeal, Petitioner challenged the sufficiency of the evidence and her sentence. Additionally, she argued that there was a material variance between the presentment, bill of particulars, election of offenses, and the proof; that the trial court erred in denying a motion to dismiss; and that the trial court erred by refusing to conduct an in camera review of the Department of Children's Services records pertaining to the victim. This Court denied relief and affirmed the judgments of the trial court. Gwendolyn Hagerman, 2013 WL 2445364, at *1. The Tennessee Supreme Court granted permission to appeal and issued an order remanding the case to this Court "with direction to order the parties to supplement the appellate record with the victim's Department of Children's Services records, which were sealed and filed with the trial court, and to reconsider the case." State v. Gwendolyn Hagerman, No. E2011-00233-SC-R11-CD (Tenn. Nov. 13, 2013) (order). On remand, this Court reviewed the sealed records and again affirmed the convictions. State v. Gwendolyn Hagerman, No. E2011-00233-CCA-R3-CD, 2013 WL 6729912, at *1 (Tenn. Crim. App. Dec. 19, 2013), perm. app. denied (Tenn. July 11, 2014).

         On June 26, 2015, Petitioner filed a timely pro se petition for post-conviction relief. In the petition, she presented various allegations of ineffective assistance of trial counsel, argued that her sentence was cruel and unusual, and challenged allegedly biased statements made by the trial court regarding her sexual orientation. In addition to post-conviction relief, Petitioner included a motion for correction of an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.

         The post-conviction court entered a preliminary order, finding that Petitioner stated a colorable claim with respect to several allegations of ineffective assistance of counsel. The post-conviction court appointed counsel and an amended petition was filed raising additional grounds for relief. At the outset of the hearing on the petition for post-conviction relief, Petitioner waived all issues raised in the petition except for the allegation that trial counsel was ineffective for failing to timely convey plea offers to Petitioner prior to trial.

         Testimony at the ...


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