Court of Criminal Appeals of Tennessee, Nashville
GABRIEL C. TORRES
STATE OF TENNESSEE
Session July 19, 2017
from the Circuit Court for Robertson County No.
74CC2-2011-CR-659 William R. Goodman III, Judge
State appeals after the post-conviction court granted
Petitioner, Gabriel C. Torres, post-conviction relief in the
form of a new trial. Because the proper remedy was the grant
of a delayed appeal, we reverse and remand the judgment of
the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Remanded.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; John W. Carney, District
Attorney General; and Lee Willoughby, Assistant District
Attorney General, for the appellant, State of Tennessee.
Garth Click, Springfield, Tennessee, for the appellee,
Gabriel C. Torres.
Timothy L. Easter, J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and John Everett Williams,
TIMOTHY L. EASTER, JUDGE.
was indicted by the Robertson County Grand Jury on three
counts of rape of a child. State v. Gabriel Torres,
No. M2013-00765-CCA-R3-CD, 2014 WL 4113112, at *1 (Tenn.
Crim. App. Aug. 21, 2014), no perm. app. filed.
Shortly before trial, the State dismissed count three of the
indictment. After a jury trial, Petitioner was found guilty
of one count of rape of a child and acquitted of one count of
rape of a child. The trial court sentenced Petitioner to
twenty-five years in incarceration, to be served at 100% as
required by statute. The judgment was entered on December 11,
counsel filed a motion for new trial challenging the
sufficiency of the evidence thirty-one days later on January
11, 2013. Id. at *5. The trial court dismissed the
untimely motion on the basis that it lacked jurisdiction to
rule on the motion. Id. Petitioner filed an untimely
notice of appeal, and asked this Court to waive the timely
filing of the notice of appeal. This Court determined that
the timely filing of the notice of appeal should be waived
and reviewed Petitioner's claim that the evidence was
insufficient. Id. at *6. However, this Court found
Petitioner's claim that the trial court failed to fulfill
its role as the thirteenth juror was waived as a result of
the untimely motion for new trial. Id. at *6.
Ultimately, this Court determined that the evidence was
sufficient to support the conviction for rape of a child.
Id. at *7. Petitioner did not seek permission to
appeal from the Tennessee Supreme Court.
January of 2015, Petitioner filed a timely pro se petition
for post-conviction relief. In the petition, he alleged that
he received ineffective assistance of counsel at trial, that
the evidence was insufficient to support his conviction, and
that the trial court failed to act as thirteenth juror.
Specifically, Petitioner alleged that trial counsel was
ineffective for failing to investigate, failing to consult
with him adequately prior to trial, failing to
"zealously" advocate on his behalf, and failing to
file post-trial motions. Post-conviction counsel was
appointed and an amended petition was filed in which
Petitioner additionally alleged that trial counsel failed to
advise Petitioner of "options with respect to plea
at the Post-conviction Hearing
post-conviction hearing, Petitioner testified that he was an
"illegal" who had been in the United States for
about sixteen years prior to his indictment. Petitioner had
no formal education and claimed he could not read or write.
Additionally, Petitioner claimed that he did not speak
English and that there was an interpreter present each time
he met with trial counsel.
insisted that the State "never made [him] any [plea]
offers when [he] was in jail." Petitioner also testified
that trial counsel never discussed settlement offers with him
prior to trial. In fact, Petitioner stated that "it was
actually right before the trial, the same day as the trial,
when they offered me those four years and one month."
Petitioner claimed that if he "had seen [plea offers],
he would've accepted them." Petitioner was
"ready" to enter a plea but that did not happen.
recalled trial counsel's telling him about the appeal
process but that trial counsel never came to "talk to
[him] at all" about the appeal. Petitioner relied on
other prisoners who told him about the thirty-day time limit
for filing an appeal. Petitioner even had someone call ...