                                                                                       06/20/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                         Assigned on Briefs March 21, 2018

         JOSEPH KANTRELL NORRIS v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Williamson County
                   No. CR-160292       Joseph Woodruff, Judge
                    ___________________________________

                          No. M2017-01006-CCA-R3-PC
                      ___________________________________


The Petitioner, Joseph Kantrell Norris, appeals from the denial of post-conviction relief
by the Williamson County Circuit Court. In this appeal, he argues that he received
ineffective assistance of counsel. Upon our review, we affirm the judgment of the post-
conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

Matthew J. Crigger, Brentwood, Tennessee for the Petitioner, Joseph Kantrell Norris.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Kim R. Helper, District Attorney General; and Terry Wood, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION

       On December 23, 2011, the homes of Sharon Perkins and Tory Dunlap were
burglarized and robbed by four armed men. State v. Joseph Kantrell Norris, No. M2014-
00857-CCA-R3-CD, 2015 WL 3486968, *1-2 (Tenn. Crim. App. Dec. 16, 2014), no
perm. app. filed. Two weeks prior to the offenses, the Petitioner inquired as to where
Dunlap lived. He had heard Dunlap had cash and wanted to rob him. On the day of the
offense, the Petitioner returned and again inquired about Dunlap, who apparently lived
behind the home of the resident to whom the Petitioner made inquiry. An hour after
being advised of the general area where Dunlap lived, gunshots rang out from Dunlap’s
house. The four men went to Perkins’ home first, who lived adjacent to Dunlap. Even
though Perkins told the men they had the wrong house, the men forced Perkins and her
guests to go to Dunlap’s home. The men held Perkins and her guests confined in the
living room and took their purses and cell phones. When Dunlap ultimately arrived at his
home, he was shot twice in the leg. Deangelo Miller, a co-defendant, later testified that it
was the Petitioner’s idea to rob Dunlap, that the Petitioner gave him a .25 caliber gun,
and that the Petitioner directed the men during the commission of the offenses. Finally,
the Petitioner told Miller later that night, “I fired [Dunlap] up[,]” and divided the
marijuana taken from Dunlap’s home between the men. Id. at *2.

       The Petitioner was subsequently indicted of and plead guilty to various counts of
attempted second degree murder, especially aggravated kidnapping, especially
aggravated burglary, aggravated burglary, aggravated assault, aggravated robbery, and
reckless endangerment. The Petitioner agreed to plead guilty as a Range II offender.
With consecutive alignment, the trial court imposed a within range total effective
sentence of 140 years. The Petitioner appealed, arguing that the sentence was excessive.
After review, this court concluded that the sentence was reasonable and affirmed the trial
court’s judgments. In doing so, we reasoned as follows:

       Having reviewed the record before us, we conclude that the trial court
       clearly stated on the record its reasons for imposing the sentences imposed,
       and all of [the Petitioner’s] sentences are within the appropriate ranges.
       The trial court found three applicable enhancement factors and no
       applicable mitigating factors. The record reflects that the trial court
       considered the purposes and principles of the Sentencing Act. Therefore,
       the trial court’s imposition of the maximum sentences is presumed
       reasonable.

       ....

       In the instant case, the trial court found two statutory factors, either of
       which alone would be sufficient to support the imposition of consecutive
       sentencing. The trial court found that [the Petitioner] was an offender
       whose record of criminal activity was extensive and that [the Petitioner] is a
       dangerous offender whose behavior indicates little or no regard for human
       life and no hesitation about committing a crime in which the risk to human
       life is high. With regard to the court’s finding that [the Petitioner] was a
       “dangerous offender,” the trial court further found that consecutive
       sentences were reasonably related to the severity of the offenses committed
       and were necessary to protect the public from further criminal conduct by
       the [the Petitioner][.] We conclude that the trial court did not abuse its
       discretion in sentencing [the Petitioner]. Accordingly, the judgments of the
       trial court are affirmed.
                                           -2-
Joseph Kantrell Norris, 2015 WL 3486968, at *4-5 (internal citations omitted).

      The Petitioner filed a pro se petition for post-conviction relief on April 27, 2016,
arguing, inter alia, that he received ineffective assistance of trial counsel. The post-
conviction court entered a preliminary order appointing counsel. On August 11, 2016,
through appointed counsel, the Petitioner filed an amended petition claiming trial counsel
rendered deficient performance by failing to introduce mitigating proof of the Petitioner’s
mental health during the sentencing hearing.

        At the March 30, 2017 post-conviction hearing, both the Petitioner and trial
counsel testified. The Petitioner testified that he grew up in Nashville and had a “rough”
childhood. During his childhood, he spent time in Vanderbilt Children’s psychiatric
ward. He was sexually harassed by his mother’s boyfriends and grew up having to watch
them beat his mother. He received his special education diploma in 1998 while
incarcerated. The Petitioner had worked several short-term jobs but had trouble keeping
them due to his “mental issues.” The Petitioner said that he experienced mental issues all
his life and first received mental health treatment at age eight. He described his episodes
as “blank out spasms,” during which he cannot “feel nothing, hear nothing, [or] see
nothing . . . .” The Petitioner was suicidal in the past and was given mental health
treatment while incarcerated for prior convictions. At the hearing, the Petitioner said he
had not taken his “psych medicine in three days so . . . [he] [was] kind of in and out.” He
was currently prescribed medication for paranoid schizophrenia, homicidal and suicidal
thoughts, depression, and seizures. On cross-examination, the Petitioner admitted he had
an extensive criminal history. He also admitted that he had received mental health
treatment while incarcerated for “hearing voices and seeing things.” When confronted
with the fact that no doctor had actually given him a mental health diagnosis, the
Petitioner said “I been told that since I was eight years old from Vanderbilt Child.” None
of the medical records listed an actual diagnosis.

       Without offering a witness to explain the import of the following records, the
Petitioner offered the following exhibits to the hearing: Exhibit 3: Mental Health
Cooperative Progress Notes dated May 7, 2008 (three pages); Exhibit 4: Middle
Tennessee Mental Health Discharge Summary dated June 12, 2009 (four pages); and
Exhibit 5: Southern Health Partners Inmate Sick Call Slip (collection of various dates)
(approximately 85 pages).

       Trial counsel, a veteran criminal defense attorney with over 100 jury trials of
experience, had previously dealt with people with mental health issues and referred them
to the mental health department for evaluation when necessary. She did not refer the
Petitioner for an evaluation because (1) he was “adamant almost to the very end that he
was mistakenly arrested;” and (2) she could not simultaneously pursue a mental health
                                           -3-
defense and a defense of “I didn’t do it.” She was aware however that the Petitioner had
some psychological issues, took medication while in jail, and suffered from a very rough
childhood. Prior to sentencing, she tried to obtain the Petitioner’s mental health records
from one facility, but they were too old. She chose not to introduce records from another
facility at sentencing because there was no clear diagnosis of schizophrenia. Although
bipolar disorder and depression were mentioned in the records, she did not consider them
to be “serious enough mental health issue[s] [] to rule the day.” In addition, there was
language about anger and anger management, and she was afraid that presenting those
records would do as much harm as good.

       One of trial counsel’s biggest fears was consecutive sentencing because, in her
experience, the sentencing judge was “tough” and “not very sympathetic[.]” Counsel
believed presenting the records would justify consecutive sentencing according to case
law. Nevertheless, at the sentencing hearing, counsel argued two other mitigating
factors: (1) that the Petitioner had admitted to guilt, and (2) that the kidnapped victims
were unharmed and ultimately released. Trial counsel spent a “great deal of time”
researching the case and had a banker’s box full of information. She had the case for
over a year and discussed it at length with the Petitioner. She hired a private investigator,
interviewed three key witnesses, and filed a successful motion to suppress evidence. She
was prepared to go to trial and tried to persuade the Petitioner to continue with the trial
instead of entering guilty pleas.

       In a written order denying relief, the post-conviction court found that the
Petitioner suffered from health issues; however, there was not sufficient proof to
adequately determine the degree of his mental illness. The court found the Petitioner
appeared credible and intelligent during the post-conviction hearing. However, the court
determined that, “[trial counsel] articulated many sound reasons in support of her
decision to not put forth proof regarding [the Petitioner’s] mental health issues. [Trial
counsel] was very familiar with the facts of [the Petitioner’s] case. She was adequately
prepared to represent him at both his trial and sentencing hearing.” The court concluded
that “due to the overwhelming number of applicable enhancement factors, [the Petitioner]
cannot prove he was prejudiced by [trial counsel’s] decision not to present evidence of
his mental health . . . .” It is from this written order that the Petitioner timely appeals.

                                       ANALYSIS

       The Petitioner argues that trial counsel was deficient in failing to produce
mitigating evidence of his mental illness at the sentencing hearing. The State argues, and
we agree, that the Petitioner failed to demonstrate that trial counsel was deficient in her
performance or that her alleged deficiency prejudiced his sentence.

                                            -4-
       In reaching our conclusion, we are guided by the following well-established law
pertaining to post-conviction relief. Post-conviction relief is only warranted when a
petitioner establishes that his or her conviction or sentence is void or voidable because of
an abridgement of a constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme
Court has held:

       A post-conviction court’s findings of fact are conclusive on appeal unless
       the evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of
       their testimony are matters for the trial court to resolve.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (citations and internal quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);
Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
Evidence is considered clear and convincing when there is no serious or substantial doubt
about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Felts, 354 S.W.3d at 276 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “[A] failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”
and “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). This court
reviews a claim of ineffective assistance of counsel, which is a mixed question of law and
fact, under a de novo standard with no presumption of correctness. Smith v. State, 357
S.W.3d 322, 336 (Tenn. 2011).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence establishes that his attorney’s conduct fell below “an objective
standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d at
369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). Prejudice arising therefrom is demonstrated once the petitioner establishes “‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Id. at 370 (quoting Strickland, 466 U.S. at 694).
                                           -5-
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. The petitioner must show that “counsel’s
deficient performance was of such a degree that it deprived him of a fair trial and called
into question the reliability of the outcome.” Mobley v. State, 397 S.W.3d 70, 81 (Tenn.
2013) (citation and internal quotation marks omitted). A reasonable probability of being
found guilty of a lesser charge satisfies the prejudice prong. Id.

       We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential 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) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set
of detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding
how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However,
we note that this “‘deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).

        The Petitioner argues that trial counsel was deficient in her performance by failing
to introduce mitigating evidence of his mental illness or to humanize him in any way.
Specifically, the Petitioner asserts that when evidence of mental illness is provided, it can
show that mental illness contributed to the criminal conduct and rehabilitation becomes
more likely because mental illness can be treated. While this may generally be true, in
this case, trial counsel thoroughly researched the Petitioner’s medical health records, and
there was no definite mental health diagnosis. As such, trial counsel’s reasons for not
introducing the records at sentencing were well informed and will not be second guessed
by this court. Moreover, the Petitioner agreed to be sentenced as a Range II offender and
received a within range sentence, albeit with consecutive alignment. The Petitioner has
failed to show how the admission of non-specific mental health records as a mitigating
factor would have altered the consecutive nature of his sentence. See State v. Baker, 751
S.W.2d 154, 166-67 (Tenn. Crim. App. 1987) (noting that “the procedure for imposing
consecutive sentences is prescribed in T.C.A. § 40-35-210(e) . . . [and] [t]he mitigating
and enhancement factors set forth in T.C.A. § 40-35-110-111 are involved in the range
and duration of a specific sentence for an offense and not with the determination of
whether they shall be served consecutively or concurrently”). Accordingly, the record
supports the determination of the post-conviction court. Because the Petitioner has failed
to demonstrate deficient performance or prejudice arising therefrom, he is not entitled to
relief.




                                            -6-
                                CONCLUSION

      Based upon the foregoing reasoning and analysis, the judgment of the post-
conviction court is affirmed.



                                       ____________________________________
                                       CAMILLE R. MCMULLEN, JUDGE




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