Torres v. State

          Session July 19, 2017

         Appeal from the Circuit Court for Robertson County No. 74CC2-2011-CR-659 William R. Goodman III, Judge

         The 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.

         Tenn. 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.

          H. 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, JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE.

         Petitioner 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, 2012.

         Trial 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.

         In 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 deals."

         Proof at the Post-conviction Hearing

         At the 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.

         Petitioner 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.

         Petitioner 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 ...