             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                     Assigned on Briefs April 19, 2005

                     ANTHONY NORFLEET v. STATE OF TENNESSEE

                        Direct Appeal from the Criminal Court for Shelby County
                                   No. P-27666    J. C. McLin, Judge



                           No. W2004-01293-CCA-MR3-PC - Filed May 6, 2005


The petitioner, Anthony Norfleet, appeals the denial of his petition for post-conviction relief from
his aggravated robbery conviction, arguing that the post-conviction court erred in finding he received
effective assistance of trial counsel. Following our review, we affirm the denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOSEPH
M. TIPTON , J., joined.

Robert C. Brooks, Memphis, Tennessee, for the appellant, Anthony Norfleet.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                       OPINION

                                                         FACTS

        The petitioner was convicted by a Shelby County Criminal Court jury of aggravated robbery,
a Class B felony, based on his participation in an armed robbery of a Memphis Krispy Kreme donut
store in September 1998. His conviction was affirmed by this court on direct appeal and our
supreme court denied his application for permission to appeal. See State v. Anthony Norfleet, No.
W2000-02229-CCA-R3-CD, 2002 WL 1482666, at *1 (Tenn. Crim. App. Feb. 8, 2002), perm. to
appeal denied (Tenn. Sept. 9, 2002).1 The direct appeal opinion reveals that the Krispy Kreme
employee who was the victim of the robbery identified the petitioner as the armed robber who



         1
             Our supreme court designated this court’s opinion as not for citation. W e cite it for background information
only.
accosted him. Id. at *2. Further, one of the petitioner’s codefendants, a Krispy Kreme employee
who planned the robbery with a third codefendant, testified against the petitioner at his trial. Id.

        The petitioner subsequently filed a pro se petition for habeas corpus relief, which the post-
conviction court treated as a post-conviction petition. Among other claims, the petitioner alleged
ineffective assistance of counsel based on counsel’s failure to call character witnesses to testify at
the petitioner’s trial and that the trial court erred in refusing to accept the guilty plea the petitioner
sought to enter before the trial. On appeal to this court, however, the only issue the petitioner raises
is whether trial counsel was ineffective for failing to cite State v. Williams, 851 S.W.2d 828 (Tenn.
Crim. App. 1992), in support of counsel’s argument that the trial court abused its discretion in
refusing the petitioner’s guilty plea. Accordingly, our summary of the evidentiary hearing testimony
will include only those portions relevant to the petitioner’s claim of ineffective assistance of counsel.

         The petitioner testified he had been prepared to plead guilty to aggravated robbery in
exchange for a sentence of twelve years at 45%. However, the trial court would not accept the plea
because the petitioner refused to acknowledge that he had used a weapon in the offense. The
petitioner then proceeded to trial, where he was convicted of aggravated robbery and sentenced to
thirty years at 60%. The petitioner said he gave trial counsel a list of witnesses who could have
testified about his character and employment history. He acknowledged, however, that counsel told
him that his lengthy criminal record, which included multiple convictions for theft, burglary, and
aggravated robbery, could be brought out by the State if he attempted to introduce evidence to prove
his good character. The petitioner testified that trial counsel discussed the case with him and said
that “as far as [he] was concerned, [trial counsel] did a good job.”

         Trial counsel testified he represented the petitioner at trial and assisted one of the attorneys
in his office on the direct appeal, where they raised a number of issues, including whether the trial
court erred in rejecting the defendant’s plea. He acknowledged they failed to cite the Williams case
in their appellate brief and readily conceded that the case, in which this court recognized that “a strict
policy against the acceptance of any plea in which the defendant refuses to acknowledge his guilt,
absent any other sound basis for rejection, may cross the line of discretionary propriety,” 851 S.W.2d
at 832, would have been relevant to their issue. Trial counsel said, however, that although they
“missed” the Williams case, they “cited a number of other cases” that addressed the trial court’s
abuse of discretion in the rejection of a guilty plea.

        Trial counsel testified that the defendant had appeared before the trial court on several
occasions to plead guilty only to change his mind at the last minute. He said he “almost believe[d]”
that the trial court “had finally gotten enough . . . of [the petitioner’s] see-sawing.” He further
testified, however, that the trial court gave a number of reasons for its refusal to accept the plea,
including the fact that it did not find the petitioner credible and that there was no factual basis to
support the plea. Trial counsel additionally believed that the trial court was concerned that the
petitioner was attempting to set the stage for a later argument that his plea was involuntary. He
testified that the petitioner refused to acknowledge to the court that he had used a gun and at the
same time expressed his dissatisfaction with counsel’s representation, which caused the trial court


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to feel that he was “setting [trial counsel] up for a habeas [sic] on that [trial counsel] forced him into
pleading.” Trial counsel stated he could not recall any character witnesses the petitioner mentioned,
but he did remember the petitioner’s having expressed a desire for the jury to learn that he was “a
good person.” He said he explained to the petitioner that there was no way he could get that
information to the jury without having his extensive criminal record brought out at trial.

       On April 23, 2004, the post-conviction court entered an order denying the petition for post-
conviction relief. Among other things, the court found that the petitioner had not met his burden of
demonstrating by clear and convincing evidence that he was denied the effective assistance of
counsel.

                                              ANALYSIS

         The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court’s application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a
presumption of correctness given only to the post-conviction court’s findings of fact. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

        First, the defendant must show that counsel’s performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

       The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing


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professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

         The petitioner contends on appeal that the post-conviction court erred in finding he received
effective assistance of counsel. Specifically, he argues that trial counsel provided ineffective
assistance by his failure to cite State v. Williams in support of his argument that the trial court
abused its discretion by rejecting his guilty plea. However, our review of the appellate brief trial
counsel submitted on direct appeal, which was introduced as an exhibit to the evidentiary hearing,
reveals that although counsel did not discuss the case in any detail or rely on it for his argument, he
did, in fact, cite Williams in his argument on the issue and that he included the case in his table of
authorities. Furthermore, the argument he provided on the issue in his brief is extensive, well-
written and supported by reference to numerous relevant federal and Tennessee cases.

         We also note that our reading of Williams does not find it to be as supportive a case for the
petitioner’s position as he appears to believe it to be. In that case, this court concluded that although
a “strict policy” of rejecting a guilty plea when a defendant refuses to acknowledge his guilt “may
cross the line” into an abuse of discretion, there is no error in a trial court’s rejection of a guilty plea
“[s]o long as a reasonable basis exists” for the decision. Id. at 832. This court explained that a trial
court’s concern that a defendant’s answers during the plea colloquy indicate a lack of voluntariness
in the plea may form an adequate basis for its rejection:

        In addition to the nature of the circumstances and the defendant’s denial of any
        involvement in a crime, the trial court stated that had it approved the plea, it would
        be an invitation for a post-conviction relief petition on the issue of voluntariness --
        that is, he pled guilty just because his lawyer told him to do so.

                ....

                Our review of the record suggests that the trial court did not abuse its
        discretion. Implicit is the trial court’s finding that the plea was not entirely voluntary.
        When the defendant maintains his innocence, the trial court must take special care
        to determine whether the guilty plea is the result of a rational calculation. So long
        as a reasonable basis exists for the exercise of the discretion to reject the Alford plea,
        there is no error.

Id. at 831-32 (citation omitted).

        Given trial counsel’s testimony that the trial court in the case at bar expressed concern that
the petitioner was attempting to set the stage for a later post-conviction petition claiming his guilty
plea was involuntary, similar to the defendant in Williams, trial counsel was no doubt prudent not


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to rely too heavily on the case in his argument on the issue. We conclude, therefore, that the
petitioner has not shown that trial counsel provided ineffective assistance by failing to cite or rely
on the Williams case in his argument on the guilty plea issue.

                                          CONCLUSION

        We conclude that the petitioner has shown neither a deficiency in counsel’s representation
nor prejudice to his case as a result of counsel’s alleged deficiency. Accordingly, we affirm the
denial of the petition for post-conviction relief.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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