Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs March 21, 2017
from the Criminal Court for Sullivan County No. C65178 James
F. Goodwin, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Kenneth E. Hill, Kingsport, Tennessee, for the appellant,
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
Timothy L. Easter, J., delivered the opinion of the court, in
which John Everett Williams and J. Ross Dyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE
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).
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,
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).
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.
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
at the ...