Gilbert v. State

• Decision Date: 13 May 2022
• Docket Number: E2021-00737-CCA-R3-PC
• Parties: RONALD WAYNE GILBERT v. STATE OF TENNESSEE
• Court: Tennessee Court of Criminal Appeals

RONALD WAYNE GILBERT v. STATE OF TENNESSEE

No. E2021-00737-CCA-R3-PC

Court of Criminal Appeals of Tennessee, Knoxville

May 13, 2022

Assigned on Briefs April 27, 2022

Appeal from the Circuit Court for Sevier County No. 20805-II James L. Gass, Judge

Following a bench trial, Ronald Wayne Gilbert ("Petitioner") was convicted of especially aggravated kidnapping and aggravated assault, for which he received an effective sentence of thirteen and one-half years' incarceration. This court affirmed Petitioner's convictions on direct appeal. State v. Ronald Wayne Gilbert, No E2017-00396-CCA-R3-CD, 2018 WL 2411835, at *1 (Tenn. Crim App. May 29, 2018), perm. app. denied (Tenn. Sept 13, 2018). Petitioner filed a pro se post-conviction petition and an amended petition following the appointment of counsel. Following a hearing, the post-conviction court denied relief. On appeal, Petitioner argues that he was denied the effective assistance of counsel based on counsel's failure to argue that the evidence was insufficient to sustain his conviction for especially aggravated kidnapping based on State v. White, 362 S.W.3d 559 (Tenn. 2012). Petitioner further argues that his conviction for especially aggravated kidnapping constitutes plain error. After a thorough review of the record and applicable case law, the judgment of the post-conviction court is affirmed.

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

William L. Wheatley, Sevierville, Tennessee, for the appellant, Ronald Wayne Gilbert.

Herbert H. Slatery III, Attorney General and Reporter; Kayleigh Butterfield, Assistant Attorney General; Jimmy B. Dunn, District Attorney General; and Ronald C. Newcomb, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Timothy L. Easter, J. joined.

OPINION

ROBERT L. HOLLOWAY, JR., JUDGE

Factual and Procedural Background

The Sevier County Grand Jury charged Petitioner with two counts of especially aggravated kidnapping, two counts of attempted first degree murder, two counts of aggravated assault, and one count of violating an order of protection. The trial court entered an agreed order severing the first three counts of the presentment from the remaining counts. Petitioner then waived his right to a jury trial, and a bench trial was held before the Honorable Robert E. Lee Davies, Senior Judge, on one count each of especially aggravated kidnapping, attempted first degree murder, and aggravated assault. Ronald Wayne Gilbert, 2018 WL 2411835, at *1.

On direct appeal, this court summarized the proof presented at trial, as follows:

The State's proof at trial showed that [Petitioner] and the victim, Brandi Gilbert, married in 1993 and had three children together. By early March 2015, the family had relocated from California to Cosby, Tennessee. While the family was still residing in California, [Petitioner] struck the victim and one of their sons, and, in 2010, [Petitioner] engaged in the first of several suicide attempts by trying to hang himself in front of the victim. The victim explained that [Petitioner] suffered from progressive multiple sclerosis.

During the first five weeks in which the family had resided in Cosby, [Petitioner] remained secluded in the master bedroom of the family's residence. During the rare occasions that [Petitioner] emerged from the bedroom, he was "really, really vicious and verbally abusive." On the morning of April 18, 2015, [Petitioner] awoke uncharacteristically early and began packing to leave the house. When the victim asked him what he was doing [Petitioner] told her that he was planning to purchase an airplane ticket to fly to California and "kill [their] son's girlfriend." The victim was alarmed, and the couple argued. The argument escalated to a point that [Petitioner] was "so out of control" with "yelling and cussing" that the victim contacted the local domestic violence hotline. [Petitioner] grabbed the telephone and disconnected the call. The hotline called the victim back, and eventually, the victim called 9-1-1, reporting to the operator that [Petitioner] was suicidal and was threatening to kill other people.

After calling 9-1-1, the victim was standing in a doorway of the residence when [Petitioner] "swept [her] feet out from under [her] and dropped down to sit on [her] chest." [Petitioner] placed a knife blade against the victim's throat and said, "I'll cut your f[***]ing throat, and then he ripped [the victim's] shirt up and put the blade to [her] stomach and said, I'll f[***]ing gut you." The victim remained very still and quiet because she "saw [her] death on his face," and she believed that [Petitioner] intended to kill her. While [Petitioner] was holding the knife against the victim's abdomen, he punctured her skin, drawing blood and leaving a small cut.

[Petitioner] then "leaned back" on his heels and started to stand, at which point the couple's 11-year-old son threw himself between [Petitioner] and the victim. The victim screamed for her son to run, and as the victim stood up, she saw [Petitioner] fleeing through the front door and escaping on a bicycle.

Sevier County Sheriff's Department ("SCSD") Deputy Jayson Parton was dispatched to [Petitioner's] residence on April 18, 2015, in response to a domestic situation; Deputy Parton recalled that the call came in "through the domestic hotline" and that the situation involved the suspect's holding the victim at knifepoint. When Deputy Parton arrived at the scene, the victim and her minor son were present, along with Pittman Center Police Department ("PCPD") Officer Todd Myers. Deputy Parton observed that the victim appeared to be upset and scared. While Deputy Parton was interviewing the victim, SCSD Corporal Clint Parton arrived at the scene, and both Deputy Parton and Corporal Parton searched for [Petitioner], who had reportedly fled into the woods near his residence. Deputy Parton eventually took the victim to the residence of nearby neighbors. Before leaving the victim, Deputy Parton photographed the injuries to the victim's right hand and neck. Deputy Parton was equipped with a body camera during his interactions with the victim, and through Deputy Parton's testimony, the State introduced into evidence the video recording taken at the scene. The recording showed, among other things, the victim's intermittent writing of a statement.

Corporal Parton later located [Petitioner] in a nearby barn. [Petitioner] "had a dog collar or dog chain around his neck" and was "threatening to hang himself." [Petitioner] was taken into custody without incident. Officers did not recover a knife from [Petitioner].

With this evidence, the State rested. Following the trial court's denial of [Petitioner's] motion for judgments of acquittal, [Petitioner] elected not to testify and chose to present no proof. Based on this evidence, the trial court convicted [Petitioner] as charged of both especially aggravated kidnapping and aggravated assault, and the court found [Petitioner] not guilty of attempted first degree murder. Following a sentencing hearing, the trial court sentenced [Petitioner] as a mitigated offender to a term of 13 and one-half years' incarceration for the especially aggravated kidnapping conviction, to be served at 100 percent by operation of law and to be served concurrently with [Petitioner's] mitigated sentence of 2.7 years for the aggravated assault conviction.

Id. at *1-2 (footnote omitted). On appeal, Petitioner challenged the trial court's denial of his motion to strike the victim's testimony and his motion to dismiss based upon the failure to preserve certain evidence. Id. at *1. This court affirmed the convictions and sentences but remanded for correction of a clerical error in one of the judgments. Id. at *8. The Tennessee Supreme Court denied permission for further review.

Petitioner subsequently filed a timely pro se petition for post-conviction relief. Following the appointment of counsel, Petitioner filed an amended petition. At a hearing, ^[1]trial counsel testified that she worked as an Assistant Public Defender for the Fourth Judicial District and that she represented Petitioner during his trial and on direct appeal. Trial counsel stated that, before Petitioner's case, she had tried one jury trial. Trial counsel testified that she thoroughly prepared for Petitioner's trial. Regarding her interactions with Petitioner, she explained that she visited Petitioner at the jail many times and that she wrote him between twenty-five and thirty letters detailing her work on the case. She said that she provided Petitioner with discovery and updated Petitioner on her progress both in person and in her letters.

Trial counsel testified that she filed a motion for new trial following the trial court's decision finding Petitioner guilty. Trial counsel agreed that she did not include a potential White issue in the motion for new trial and said that she could not recall her reasoning for that other than, "I remember reading that case at one point, and, to me, it was a jury instruction issue, and it was my assumption that [the trial court] knew about jury instructions and that he understood the law." Trial counsel acknowledged that she did not raise a White issue on appeal. Trial counsel recalled speaking to Petitioner in person about the issues she would raise on appeal and "about the timeline" for the appeal. Trial counsel agreed that the appellate court could have addressed any White issue under a plain error analysis.

Co-counsel testified that he assisted trial counsel in representing Petitioner at trial and on appeal. Co-counsel explained that he became involved in the case...