        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 12, 2016

                TORRIANO FLOYD v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Shelby County
                       No. 10-04996    W. Mark Ward, Judge


              No. W2015-02341-CCA-R3-PC – Filed September 16, 2016


The petitioner, Torriano Floyd, appeals the denial of his petition for post-conviction
relief, arguing that the post-conviction court erred in finding that he received effective
assistance of 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 JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Torriano Floyd.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Amy P. Weirich, District Attorney General; and D. Gregory Gilbert, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       The petitioner was convicted by a Shelby County Criminal Court jury of two
counts of robbery and one count of attempted robbery based on his participation in an
armed robbery against three men who were stopped in their vehicle at a Memphis service
station. According to the State’s proof at trial, the perpetrators fired shots at the victims’
vehicle when the victims followed them after the robbery in an attempt to get their
license plate number. State v. Torriano Floyd, No. W2013-00323-CCA-R3-CD, 2013
WL 6281880, at *1-5 (Tenn. Crim. App. Dec. 3, 2013), perm. app. denied (Tenn. May
29, 2014). The petitioner was sentenced by the trial court as a Range I offender to
consecutive six-year sentences for each of the robbery convictions and to a concurrent
sentence of four years for the attempted robbery conviction, for a total effective sentence
of twelve years at thirty percent in the Department of Correction. Id. This court affirmed
the convictions and sentences on direct appeal, and our supreme court denied his
application for permission to appeal. Id. at *1.

        On February 23, 2015, the petitioner filed a pro se petition for post-conviction
relief in which he raised several claims, including ineffective assistance of trial and
appellate counsel. Following the appointment of post-conviction counsel, he filed an
amended petition in which he alleged that appellate counsel provided ineffective
assistance for failing to address or argue on direct appeal the length of the sentences he
received for the offenses. Although the petitioner alleged numerous instances of
ineffective assistance of trial counsel in his pro se petition, he confines himself on appeal
to the above issue. Accordingly, we will summarize only that portion of the evidentiary
hearing that is pertinent to the issue raised on appeal.

       At the evidentiary hearing, appellate counsel, who was appointed to represent the
petitioner on appeal, testified that he raised two issues on direct appeal: the sufficiency
of the evidence and the order of consecutive sentencing. He said he purposefully did not
raise as an issue the fact that the petitioner was sentenced to the maximum sentence for
each conviction because, in his opinion, that issue was not as meritorious as the issue of
whether the trial court abused its discretion by ordering consecutive sentences. He
explained that the trial court made “an extremely lengthy and detailed” record, which
counsel characterized as “one of the stronger records” he had seen, in support of the
enhanced sentences.

      During his direct and cross-examination testimony, the petitioner complained
about his trial counsel, the trial judge, his post-conviction counsel, and the fact that the
jury was allowed to correct its verdict from attempted aggravated robbery to attempted
robbery. He said nothing relevant about the issue on appeal.

                                       ANALYSIS

       The petitioner contends that appellate counsel provided ineffective assistance by
waiving the issue of whether the length of his sentences was excessive and instead
focusing his argument on the trial court’s imposition of partial consecutive sentences. In
support, he cites the following portion of our direct appeal opinion:

               [The petitioner] introduces his argument by stating that “[n]either the
       sentencing at the high end of the range nor consecutive sentencing were
       justified by the actual proof at sentencing or derived at trial.” However,
       [the petitioner] advances no argument addressing the impropriety of the
       length of his sentences and includes no references to the record supporting
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       such. He focuses his argument on the trial court’s imposing partial
       consecutive sentences. Pursuant to Tennessee Court of Criminal Appeals
       Rule 10(b), this court treats as waived those issues that are unsupported by
       authorities, argument, or references to the record. See also Tenn. R. App.
       P. 27(a)(7)(A). As such, he has waived consideration of the length of his
       sentences, and we will address sentence alignment only.

Id. at *8.

       The petitioner argues that appellate counsel’s failure to argue the issue of the
length of the sentences, “a contested issue at the sentencing hearing,” “was an error
which deprived [him] of a fair sentence.” The State responds by arguing that the
petitioner has failed to overcome the strong presumption that appellate counsel exercised
reasonable professional judgment when he made the strategic decision to focus on the
order of consecutive sentencing rather than the length of the sentences. We agree with
the State.

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). 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); State v. Burns, 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 (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
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      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.

        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 professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690,
and may not second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadequate preparation. See Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). 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. The same principles apply in
determining the effectiveness of trial and appellate counsel. Campbell v. State, 904
S.W.2d 594, 596 (Tenn. 1995).

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

        The post-conviction court made the following findings of fact and conclusions of
law with respect to the petitioner’s argument regarding the alleged ineffective assistance
of his appellate counsel:

             Petitioner contends that appellate counsel was “ineffective” in
      failing to challenge the length of his sentences on appeal. Appellate
      counsel testified that he did not raise that issue because he found it to have
      no merit. This court agrees. There was absolutely no chance that [the
      petitioner] could have prevailed on this issue on appeal. Petitioner failed to
      carry his burden of proof as to both “deficient performance” and
      “prejudice” on this issue.

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        The record fully supports the findings and conclusions of the post-conviction
court. “The determination of which issues to raise on appeal is generally within appellate
counsel’s sound discretion.” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004).
Appellate counsel offered a reasonable explanation for why he believed there was no
merit in challenging the length of the sentences and why he instead concentrated on the
trial court’s order of partial consecutive sentences. The petitioner has not, thus, met his
burden of showing that appellate counsel was deficient for not arguing the issue on
appeal. Moreover, the petitioner has also not met his burden of showing that he was
prejudiced as a result of counsel’s alleged deficiency in this regard. As the State points
out, in light of our supreme court’s decision in State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012), the trial court’s application of enhancement and mitigating factors to determine
the length of the sentences was presumptively reasonable absent an abuse of discretion.

                                    CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court denying the petition for post-conviction relief.


                                                _________________________________
                                                ALAN E. GLENN, JUDGE




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