                                                                                         05/09/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 21, 2017

           GWENDOLYN HAGERMAN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sullivan County
                       No. C65178 James F. Goodwin, Judge
                      ___________________________________

                            No. E2016-01555-CCA-R3-PC
                       ___________________________________


Petitioner, Gwendolyn Hagerman, was convicted of five counts of rape of a child and
sentenced to an effective sentence of sixty years. Subsequently, she sought post-
conviction relief on the basis of ineffective assistance of counsel. The post-conviction
court denied relief and dismissed the petition. Petitioner appealed. After a review, we
affirm the denial of post-conviction relief.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.

Kenneth E. Hill, Kingsport, Tennessee, for the appellant, Gwendolyn Hagerman.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Teresa Nelson,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

       In October of 2009, the Sullivan County Grand Jury indicted Petitioner on ten
counts of rape of a child and one count of statutory rape involving her then-girlfriend’s
daughter. In September of 2010, the Sullivan County Grand Jury issued a superseding
presentment against Petitioner for six counts of rape of a child. On the first day of trial,
the State moved to dismiss count six of the presentment. The proof at trial painted a story
of Petitioner’s sexual abuse of the victim, whom she referred to as “Baby Girl,”
beginning just prior the victim’s twelfth birthday. At the conclusion of the proof,
Petitioner was found guilty of five counts of rape of a child. See State v. Gwendolyn
Hagerman, No. E2011-002233-CCA-R3-CD, 2013 WL 2445364, at *1-28 (Tenn. Crim.
App. June 4, 2013), perm. app. granted (Tenn. Nov. 13, 2013).

       The trial court initially sentenced Petitioner to twenty-five years for each
conviction and ordered partial consecutive sentencing for a total effective sentence of
seventy-five years at 100% service. The trial court later resentenced Petitioner to twenty
years on each count with partial consecutive sentencing for a total effective sentence of
sixty years at 100%. The reason behind the resentencing is not entirely clear from the
record; however, it appears that Petitioner’s sentences were modified to the presumptive
length of twenty years under the law applicable to the crimes at the time. See T.C.A. §
40-35-210(c) (2003) (amended 2005); Blakely v. Washington, 542 U.S. 296, 305 (2004).

       On direct appeal, Petitioner challenged the sufficiency of the evidence and her
sentence. Additionally, she argued that there was a material variance between the
presentment, bill of particulars, election of offenses, and the proof; that the trial court
erred in denying a motion to dismiss; and that the trial court erred by refusing to conduct
an in camera review of the Department of Children’s Services records pertaining to the
victim. This Court denied relief and affirmed the judgments of the trial court.
Gwendolyn Hagerman, 2013 WL 2445364, at *1. The Tennessee Supreme Court granted
permission to appeal and issued an order remanding the case to this Court “with direction
to order the parties to supplement the appellate record with the victim’s Department of
Children’s Services records, which were sealed and filed with the trial court, and to
reconsider the case.” State v. Gwendolyn Hagerman, No. E2011-00233-SC-R11-CD
(Tenn. Nov. 13, 2013) (order). On remand, this Court reviewed the sealed records and
again affirmed the convictions. State v. Gwendolyn Hagerman, No. E2011-00233-CCA-
R3-CD, 2013 WL 6729912, at *1 (Tenn. Crim. App. Dec. 19, 2013), perm. app. denied
(Tenn. July 11, 2014).

        On June 26, 2015, Petitioner filed a timely pro se petition for post-conviction
relief. In the petition, she presented various allegations of ineffective assistance of trial
counsel, argued that her sentence was cruel and unusual, and challenged allegedly biased
statements made by the trial court regarding her sexual orientation. In addition to post-
conviction relief, Petitioner included a motion for correction of an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1.

       The post-conviction court entered a preliminary order, finding that Petitioner
stated a colorable claim with respect to several allegations of ineffective assistance of
counsel. The post-conviction court appointed counsel and an amended petition was filed
raising additional grounds for relief. At the outset of the hearing on the petition for post-
conviction relief, Petitioner waived all issues raised in the petition except for the
allegation that trial counsel was ineffective for failing to timely convey plea offers to
Petitioner prior to trial.
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                         Testimony at the Post-Conviction Hearing

        Petitioner testified that trial counsel was retained to represent her at trial and
repeatedly cancelled meetings leading up to trial. Petitioner estimated that trial counsel
cancelled and failed to reschedule twelve meetings. Additionally, Petitioner insisted that
trial counsel did not review discovery, discuss plea negotiations, or explain the difference
between concurrent and consecutive sentencing.

       At the hearing, Petitioner was shown a letter from counsel for the State to trial
counsel dated February 16, 2010. In the letter, the State offered a fifteen-year plea deal
specifying that all counts would run concurrently. Petitioner testified that trial counsel
did not show her the letter or give her a copy of the letter prior to trial. She insisted that
had she seen the letter, she would have accepted the plea deal.

        Petitioner further testified that on the morning of trial, trial counsel reported that
the state had offered a ten-year plea deal. According to Petitioner, this was the first time
trial counsel mentioned plea negotiations or a plea offer. When Petitioner expressed her
desire to discuss the offer with her family, she claimed trial counsel exclaimed,
“Whatever,” and left the room. Petitioner testified that she discussed the offer with her
family and decided to accept the offer. When trial counsel returned a minute later, he
informed Petitioner that the deal was no longer ten years but fifteen years. Petitioner
recalled that trial counsel again left the room so that she could discuss the offer with her
family. When he returned, he informed Petitioner, “That’s done, you’re going to trial.”

        Bernice Hagerman, Petitioner’s mother, also testified at the hearing on the post-
conviction petition. Ms. Hagerman accompanied Petitioner to the majority of her pre-
trial appointments with trial counsel. During one of these meetings, trial counsel left the
office momentarily. When trial counsel stepped out of the office, Ms. Hagerman picked
up a piece of paper from trial counsel’s desk, read it, and placed it back on the desk.
According to Ms. Hagerman, the document contained a fifteen-year plea offer from the
State. When trial counsel returned, they discussed the trial but did not discuss the
document. She did not ask trial counsel or Petitioner about the document. Ms.
Hagerman testified that the document she saw on trial counsel’s desk was not the letter
dated February 16, 2010.

         Counsel for the State testified that she sent a letter to trial counsel on February 16,
2010. The letter included a plea offer of fifteen years at 100% with all counts running
concurrently. Counsel for the State recalled providing discovery materials, including a
notice for alibi with the letter containing the plea offer but admitted that she was unaware
if trial counsel shared the plea offer with Petitioner. Counsel for the State did not recall
any other plea offers, verbal or written. On the day of trial, trial counsel presented a
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counter-offer of twenty years, described as “ten plus ten” at the hearing, with a 30%
release eligibility and the option to apply for probation. Counsel for the State rejected the
counter-offer and informed trial counsel that all offers were revoked at that point.
Counsel for the State insisted that no offers were ever accepted by trial counsel.

       Trial counsel testified that, at the time of the hearing, he had been licensed to
practice law in Tennessee for about twenty years. His practice consisted of “a lot” of
criminal law, and he “never had a board complaint founded against” him. Trial counsel
insisted that he met with Petitioner numerous times prior to trial to discuss the case.
Specifically, at one of these meetings, trial counsel recalled giving Petitioner a copy of
the February 16, 2010 letter which contained the fifteen-year plea offer and demand for
an alibi. The two discussed the offer at the meeting. Trial counsel testified that this was
the only offer he received from the State. Trial counsel explained to Petitioner that the
charges she faced at trial had no release eligibility and that the trial court had the
authority to order consecutive sentencing if she was convicted, essentially exposing
Petitioner to a life sentence. Trial counsel responded to the alibi demand in the letter by
providing a copy of an affidavit from a witness identified by Petitioner.

       In preparation for trial, trial counsel hired an investigator to interview witnesses.
Trial counsel also reviewed discovery with Petitioner, including a handwritten letter
purportedly from Petitioner to the victim. Trial counsel recalled “countless hours” of
discussion about the letter as Petitioner continued to maintain her innocence and claimed
that she wrote the letter to her partner. Trial counsel even hired a handwriting expert to
examine the letter. The expert determined that the letter was written solely in Petitioner’s
handwriting, so trial counsel explained that the letter was a “big hurdle” to overcome at
trial.

       Trial counsel testified that he approached the State on the morning of trial with a
counter-offer of twenty years with parole eligibility, served as “ten plus ten.” The State
did not agree to this offer, so trial counsel asked Petitioner if she would be willing to
accept an offer of twenty years. Petitioner “didn’t say yes, didn’t say no,” so the State
revoked the fifteen-year offer and the matter proceeded to trial.

       At the conclusion of the hearing, the post-conviction court took the matter under
advisement. In a written order, the post-conviction court recited the history of the case
and summarized the testimony given at the post-conviction hearing. The post-conviction
court noted that Petitioner voluntarily withdrew “all other grounds included in the
petition” with the exception of “ineffective assistance of counsel for failure to timely
convey plea offers.”1 The post-conviction court accredited the testimony of trial counsel

       1
         Because Petitioner waived all other grounds for post-conviction relief at the hearing and does
not address them on appeal, we exclude them from our discussion of the factual background.
                                                 -4-
and counsel for the State and “not that of Petitioner.” The post-conviction court accepted
Ms. Hagerman’s testimony that she saw the letter on trial counsel’s desk but found it
“totally incredible and unbelievable that neither she nor Petitioner discussed the offer
with [trial counsel]” and that Ms. Hagerman “did not discuss with Petitioner the fact that
she saw an offer, and thereby prompting a discussion between [trial counsel] and
Petitioner regarding an offer.” The post-conviction court concluded that Petitioner
“failed to prove by clear and convincing evidence that trial counsel’s performance was
deficient for failure to timely convey favorable plea offers.” In other words, “counsel
was not deficient and there is no reasonable probability of a different result.”

       Petitioner filed a timely notice of appeal.

                                          Analysis

                                   A. Standard of Review

        Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). On appeal, this Court will review the post-conviction court’s
findings of fact “under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court.
Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the weight and
value to be given to testimony, and the factual issues raised by the evidence are to be
resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley, 960
S.W.2d at 578). However, the post-conviction court’s conclusions of law and application
of the law to the facts are reviewed under a purely de novo standard, with no presumption
of correctness. Fields, 40 S.W.3d at 458.

                            B. Ineffective Assistance of Counsel

       On appeal, Petitioner contends that the post-conviction court improperly
determined that trial counsel rendered effective representation at trial. Specifically,
Petitioner points to trial counsel’s “evasive” testimony wherein he “never answered
whether or not he provided advice on acceptance or rejection of a plea offer” and trial
counsel’s “confusion” on the terms of the plea offer. Petitioner insists that she was

                                             -5-
prejudiced because she was never provided with the February 16, 2010 letter containing
the original plea offer. The State disagrees.

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel’s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel’s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a
claim of ineffective assistance of counsel, “failure to prove either deficient performance
or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,
960 S.W.2d at 580. “Indeed, a court need not address the components in any particular
order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-
guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994), even if a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).

                                           -6-
        A defendant is entitled to effective representation during trial as well as during
plea negotiations. Missouri v. Frye, 566 U.S. 133, 142 (2012); Hill v. Lockhart, 474 U.S.
52, 58-59, (1985); Nesbit v. State, 452 S.W.3d 779, 787 (Tenn. 2014). To that end,
counsel for a defendant “has the duty to communicate formal offers from the prosecution
to accept a plea on terms and conditions that may be favorable to the accused.” Frye, 566
U.S. at 145. “A fair trial does not correct trial counsel’s deficient performance in failing
to convey a plea offer because of ‘the reality that criminal justice today is for the most
part a system of pleas, not a system of trials.’” Nesbit, 452 S.W.3d at 787 (quoting Lafler
v. Cooper, 566 U.S. 156, 170 (2012)). In order to establish prejudice, there must be a
reasonable probability that the petitioner would have accepted the plea offer had it been
properly conveyed. State v. Garrison, 40 S.W.3d 426, 431 (Tenn. 2000).

       Petitioner claims on appeal that trial counsel’s “evasive” testimony at the hearing
with regard to the terms of the plea indicated that trial counsel was unable to and in fact
failed to properly explain and convey the plea agreement to Petitioner, rendering the
representation ineffective. However, in its order denying relief, the post-conviction court
accredited the testimony of trial counsel and counsel for the State over that of Petitioner.
Trial counsel testified at the hearing that he discussed the plea offer contained in the letter
from counsel for the State with Petitioner prior to trial. Trial counsel also explained the
possibility of an effective “life sentence” to Petitioner and discussed the damaging
potential of the handwritten letter with Petitioner in preparation for trial. While Petitioner
presented the testimony of her mother to rebut the claim by trial counsel that he discussed
the contents of the letter with Petitioner, the post-conviction court found Ms. Hagerman’s
testimony “incredible and unbelievable.” The post-conviction court assessed the
credibility of the witnesses and determined that trial counsel was the more credible
witness. Momon, 18 S.W.3d at 156. The evidence does not preponderate against this
finding. Consequently, Petitioner is not entitled to relief.

                                         Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                               ____________________________________
                                               TIMOTHY L. EASTER, JUDGE




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