Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs January 24, 2018
from the Criminal Court for Hamilton County No. 278497 Tom
Petitioner, George Timmons, appeals from the Hamilton County
Criminal Court's denial of his petition for
post-conviction relief. The Petitioner contends that trial
counsel was ineffective (1) for failing to present a defense
based on the Petitioner's "mental instability";
and (2) for failing to properly advise the Petitioner that he
would be sentenced as a repeat violent offender to life
without the possibility of parole upon his conviction at
trial. Discerning no error, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Miller, Chattanooga, Tennessee, for the appellant, George
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas W. Spangler, Assistant Attorney General; M. Neal
Pinkston, District Attorney General; and Bates W. Bryan, Jr.,
Assistant District Attorney General, for the appellee, State
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE
Petitioner was indicted for aggravated domestic assault and
four counts of aggravated rape. State v. George
Timmons, No. E2008-01628-CCA-R3-CD, 2009 WL 4790065, at
*3 (Tenn. Crim. App. Dec. 14, 2009), perm. app.
denied (Tenn. Oct. 16, 2014). Following a jury trial,
the Petitioner was convicted of aggravated domestic assault
and the lesser-included offenses of aggravated sexual
battery, misdemeanor assault, and two counts of rape.
Id. The Petitioner "received an effective
sentence of life without parole as a multiple rapist"
pursuant to Tennessee Code Annotated section 40-35-120.
Id. at *1.
Petitioner and the victim were both homeless and "living
in a wooded area of Chattanooga in a lean-to-tent."
Timmons, 2009 WL 4790065, at *1. The victim
testified at trial that the Petitioner "had beaten and
raped her" during the early morning hours of July 4,
2004. Id. The victim described the Petitioner's
beating her "with his fists" and "a big branch
from a tree." Id. The Petitioner also choked
the victim before ordering her to take off her clothes.
Id. The Petitioner then "'jammed his whole
fist up [her] vagina, ' ordered her to perform oral sex
on him, raped her vaginally with his penis, and ordered her
to perform oral sex on him again before passing out."
Id. (alteration in original).
victim was able to flee and get help after the Petitioner
passed out. Timmons, 2009 WL 4790065, at *1. As a
result of the attack, the victim was hospitalized for four
days and suffered "three cracked ribs, a broken nose,
retinal damage[, ] and a neck injury." Id.
"Photographs documenting the extensive bruising to the
victim's face, torso, and legs were admitted at
trial." Id. at *2. The responding officer
recalled that "the victim had 'stripes on her
skin' that could have been from being beaten with a
stick." Id. The nurse who examined the victim
recalled that "the vaginal examination was very painful
for the victim because there was a lot of bruising along her
pubic area." Id. During subsequent forensic
testing, the Petitioner's "DNA was found from sperm
recovered from the vaginal swabs" taken during the
nurse's examination. Id.
court affirmed the Petitioner's convictions and sentences
on direct appeal. Timmons, 2009 WL 4790065, at *1.
On December 6, 2010, the Petitioner filed a timely pro se
petition for post-conviction relief. The Petitioner was granted a
delayed appeal to our supreme court, and his other
post-conviction claims were held in abeyance. On October 16,
2014, our supreme court declined to review this court's
decision on direct appeal. On June 30, 2016, an amended
petition was filed on the Petitioner's behalf. As
pertinent to our review, the amended petition alleged that
trial counsel was ineffective for failing to present a
defense based on the Petitioner's "mental
instability" and for failing to object to the trial
court's finding that the Petitioner was a repeat violent
post-conviction hearing, the Petitioner maintained that he
"didn't do what they say [he] did" and that the
victim "hurt her own self" when she fell "in
the bushes." The Petitioner claimed that trial counsel
"didn't represent [him] properly" and that
trial counsel "went along with whatever they said and .
. . just didn't help [him] any." The Petitioner
testified that he rejected a plea agreement offer of twelve
years from the State and went to trial because he
"wasn't guilty." However, the Petitioner
claimed that trial counsel never informed him that he could
receive a sentence of life without the possibility of parole