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Torres v. State

Court of Criminal Appeals of Tennessee, Nashville

October 9, 2019

GABRIEL C. TORRES
v.
STATE OF TENNESSEE

          Session: May 14, 2019

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

         The Petitioner, Gabriel C. Torres, appeals from the Robertson County Circuit Court's denial of his petition for post-conviction relief from his rape of a child conviction, for which he is serving a twenty-five-year sentence. On appeal, he contends that the post-conviction court erred in denying his claim that trial counsel provided ineffective relative to the communication of guilty plea offers. We affirm the judgment of the post-conviction court.

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

          H. Garth Click, Springfield, Tennessee, for the Appellant, Gabriel C. Torres.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; John W. Carney, Jr.., District Attorney General; Lee Willoughby, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Petitioner was convicted at a jury trial related to his sexual abuse of a child relative. Following the trial, the Petitioner's trial counsel filed an untimely motion for a new trial. The trial court dismissed the motion on the basis that it lacked jurisdiction to consider an untimely motion. Counsel also filed an untimely notice of appeal and a motion to waive the timely filing of the notice of appeal, and this court granted the motion. This court held that, due to the untimeliness of the motion for a new trial, the Petitioner's issue was waived regarding whether the trial court had failed to act as the thirteenth juror. This court considered the Petitioner's challenge to the sufficiency of the evidence on the merits and held that the evidence was sufficient to support the conviction. See State v. Gabriel Torres, No. M2013-00765-CCA-R3-CD, 2014 WL 4113112 (Tenn. Crim. App. Aug. 21, 2014).

         The Petitioner filed a pro se petition for post-conviction relief, in which he alleged that (1) he received the ineffective assistance of trial counsel, (2) the evidence was insufficient to support his conviction, and (3) the trial court failed to act as thirteenth juror. After counsel was appointed, the Petitioner filed an amended petition which alleged that trial counsel had failed to advise him regarding possible plea agreements. See Torres v. State, 543 S.W.3d 141, 142 (Tenn. Crim. App. 2017).

         The post-conviction court conducted a hearing. Previously, this court summarized the hearing's evidence:

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 the ...

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