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Timmons v. State

Court of Criminal Appeals of Tennessee, Knoxville

March 20, 2018

GEORGE TIMMONS
v.
STATE OF TENNESSEE

          Assigned on Briefs January 24, 2018

         Appeal from the Criminal Court for Hamilton County No. 278497 Tom Greenholtz, Judge

         The 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 post-conviction court.

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

          Donna Miller, Chattanooga, Tennessee, for the appellant, George Timmons.

          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 of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         The 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.

         The 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).

         The 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.

         This 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.[1] 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 offender.

         At the 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 ...


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