IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 8, 2013

MARCUS NORWOOD v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 09-06261 James Beasley, Jr., Judge

No. W2012-00754-CCA-R3-PC – Filed March 13, 2013

Petitioner, Marcus Norwood, entered an Alford plea to second degree murder in Shelby

County in October of 2010, with an agreed sentence of twenty-five years. Subsequently,

Petitioner filed a petition for post-conviction relief in which he alleged that he received

ineffective assistance of counsel which adversely affected his decision to enter a guilty plea.

The post-conviction court denied relief. Petitioner appealed. After a review of the evidence,

we conclude that Petitioner has failed to establish that counsel’s performance was deficient

or that the voluntariness of the guilty plea was affected by the actions of counsel.

Accordingly, the judgment of the post-conviction court is affirmed.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which THOMAS T. WOODALL and

D. KELLY THOMAS, JR., JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Marcus Norwood.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel E. Willis, Assistant Attorney

General; Amy P. Weirich, District Attorney General, and Stacy McEndree, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

Petitioner was indicted by the Shelby County Grand Jury in September of 2009 for

first degree murder. In October of 2010, Petitioner entered an Alford plea to the murder of

Earnest Jackson in exchange for a second degree murder conviction and a twenty-five year

sentence.
On June 9, 2011, Petitioner filed a pro se petition for post-conviction relief. In the

petition, he alleged that he received ineffective assistance of counsel. Specifically, Petitioner

complained that trial counsel failed to: (1) see if there was evidence against Petitioner prior

to the indictment; and (2) investigate Petitioner’s criminal history prior to his guilty plea

listing him as a violent offender. After counsel was appointed, an amended petition was

filed, listing the following grounds for relief: (1) ineffective assistance of counsel due to

counsel’s failure to investigate the case, communicate with Petitioner, and prepare for trial;

and (2) Petitioner’s guilty plea was involuntary.

The trial court held a hearing on the petition. At the hearing, the transcript of the

guilty plea hearing was admitted as an exhibit. The transcript listed the factual basis for

Petitioner’s plea as follows:

[O]n [December] 16 of 2008, officers of the Memphis Police Department

th

were called to the University Cabana Apartments here in Shelby County.

When they arrived, they found [the victim] in that apartment building in

Apartment Number 5. He had suffered five stab injuries, which resulted in his

death and a shell casing on the scene indic[a]ted that he had had a weapon

fired at him. Within the hour, officers were contacted by [Petitioner’s] friends

and family members stating that he wished to turn himself in. He did turn

himself in.

He gave a statement to the police indicating that he had gone to the

apartment complex, an argument had ensued between him and the victim, . .

. . [Petitioner’s] version of events was that there was a struggle at which point

the victim, . . . , was stabbed. For the record, [the victim] suffered five stab

injuries and [Petitioner] had no injuries at the time the police took his

statement one hour after [the victim’s] death.

Trial counsel explained, at the guilty plea hearing, that Petitioner felt it was in his

“best interest at his age” to enter the guilty plea. The trial court questioned Petitioner

thoroughly prior to the entry of the plea. The plea was accepted by the trial court.

At the post-conviction hearing, trial counsel testified that at the time he represented

Petitioner he had more than ten years of experience as an assistant public defender. He was

appointed to represent Petitioner, requested discovery, and provided Petitioner with a copy

of the documents. Trial counsel assessed the case and surmised that one of the largest

obstacles would be overcoming Petitioner’s confession. Trial counsel anticipated going to

trial on the first degree murder charge but Petitioner asked trial counsel to explore a plea

-2-
agreement. The prosecutor agreed to a guilty plea to second degree murder with a twentyfive year sentence.

When trial counsel first informed Petitioner about the plea offer, Petitioner was

“reluctant” because he thought that twenty-five years was too long and he should get “around

ten years” for the crime. Trial counsel explained to Petitioner that if they got a trial date set

in the case “there was no more possibility of a deal.” Trial counsel opined that Petitioner was

“in denial” about the severity of the charge and did not think it was even remotely possible

for Petitioner to get a deal that would lead to a mere ten years in jail when someone died as

a result of Petitioner’s actions. Trial counsel “thought the deal was good.” Petitioner gave

trial counsel permission to discuss the deal with his family; Petitioner’s mother encouraged

him to take the plea agreement.

As part of the trial process and negotiations of the plea agreement, trial counsel met

with Petitioner several times. These included at least five visits at the jail and about six times

in court. Petitioner explained the facts to trial counsel, claiming that he went to talk to his

ex-girlfriend and was confronted by the victim. When they got into an argument, the victim

grabbed a knife. Petitioner claimed that he got the knife away and stabbed the victim. When

the victim came toward Petitioner, Petitioner took out his gun and shot the floor.

Trial counsel thought the possibility of getting convicted of a lesser included offense

at trial was slim and that the self-defense theory advanced by Petitioner was weak. Trial

counsel was also concerned about potential testimony by Petitioner’s ex-girlfriend about their

history of domestic violence. Trial counsel admitted that he stopped interviewing witnesses

in preparation for trial when plea negotiations became imminent.

Petitioner testified about his dissatisfaction with trial counsel’s representation. He

thought that the properstrategy was one of self-defense but admitted that it would be difficult

under the circumstances. The day prior to the guilty plea, Petitioner sent trial counsel a letter

in which he claimed that twenty-five years was “more time” than he “deserve[s]” for the

crime but that he would accept the plea agreement because it was in his best interest.” He

asked trial counsel “to sign under the Alford plea.” Petitioner felt that trial counsel did not

put any effort into his case and claimed that he pleaded guilty because he did not have a

choice. Petitioner thought that he should have gotten “manslaughter at the worst.”

Petitioner claimed that trial counsel met with him three times at the jail and twice in

court prior to the plea. Further, he claimed that trial counsel never talked about lesser

included offenses or the possibility of a plea. Petitioner also stated that he received discovery

but that trial counsel did not review the packet with him. Petitioner claimed that the only

advice trial counsel gave him was to take the plea deal. Petitioner denied that it was his idea

-3-
to seek a plea deal. Petitioner thought that twenty-five years was “too much time” and that

he even asked trial counsel to remove himself from his case.

On the day of the plea agreement, trial counsel met with Petitioner and reviewed the

plea. Petitioner was described as somewhat hostile, and stated that his attorney did not “give

a damn” about him. Petitioner claimed he “didn’t have [anybody] to really try to help me for

a defense, so [he] just gave in and signed.”

Arcaya Love, Petitioner’s ex-girlfriend, testified at the hearing. She did not recall

being interviewed by police or by trial counsel. She could not recall a lot of the details

surrounding the incident because she had since been involved in an auto accident in which

she sustained a serious head injury. Ms. Love was able to recall various incidents of

domestic violence, one in particular during which Petitioner attacked her when he learned

she was pregnant with the victim’s child. Petitioner attacked her in an attempt to cause her

to miscarry. Petitioner was trying to reconcile with Ms. Love at the time that the victim was

killed. Ms. Love testified that Petitioner had changed and that she was not afraid of him.

She admitted that he was the father of her children.

At the conclusion of the proof, the post-conviction court accredited the testimony of

trial counsel and found that Petitioner failed to prove the allegations of ineffective assistance

of counsel and/or an involuntary guilty plea by clear and convincing evidence. Specifically,

the post-conviction court stated that there was “nothing to indicate . . . that [trial counsel]

didn’t thoroughly confer with [Petitioner] and discuss[ ] these issues with him, advise[ ] him

of what the potential of what was going to happen. . . .” The post-conviction court was:

not convinced, based upon everything . . . that [trial counsel] had failed to do

his job, to adequately advise and investigate this case, to adequately tell

[Petitioner] what his potential punishment would be, should he be convicted.

What the likelihood of conviction [w]as. What the likelihood of acquittal was.

What the likelihood of a reduced charge was.

. . . .

But, it is what it is and in this case it was a second degree murder, which is a

very serious violent offense and I find that [Petitioner] freely and voluntarily

entered his guilty plea with full knowledge of what to anticipate what could

happen to him if he went to trial, the rights he was willing to give up.

I don’t find that he was coerced in any way to enter this guilty plea. I

don’t find that [trial counsel’s] efforts on his behalf were deficient in any way.

-4-
I don’t find that [Petitioner] was inadequately represented by [trial counsel].

I find that just the opposite is true. [Trial counsel] was able to secure for him

an offer much less than life in prison and I think [Petitioner] accepted that

reality for what it was, as much as he didn’t like it and as much as he still

doesn’t like it.

But, I think that he understood what he was doing when he took it and

I don’t find anything in there that indicates that he had anything other than just

regrets that he had to do that much time.

So I find that [the trial court], thoroughly, interviewed [Petitioner] and

thoroughly went over all of his rights, including discussions on lesser included

offenses, everything that [Petitioner] was entitled to. And I find that

[Petitioner] freely and voluntarily entered that plea, based upon that being his

desire, his wish and not based upon any deficiencies by [trial counsel], or any

lack of representation by [trial counsel] . . . .

Petitioner filed a timely notice of appeal of the denial of post-conviction relief.

Analysis

Post-conviction Standard of Review

The post-conviction court’s findings of fact are conclusive on appeal unless the

evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

During our review of the issues raised, we will afford those findings of fact the weight of a

jury verdict, and this Court is bound by the post-conviction court’s findings unless the

evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d

572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This

Court may not re-weigh or re-evaluate the evidence, nor substitute its inferences for those

drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.

2001). However, the post-conviction court’s conclusions of law are reviewed under a purely

de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001).

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, the petitioner bears the burden of showing by clear and convincing evidence that

(a) the services rendered by trial counsel were deficient and (b) that the deficient

performance was prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.

1996); see also T.C.A. § 40-30-110(f). In order to demonstrate deficient performance, the

-5-
petitioner must show that the services rendered or the advice given was below “the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). “Because a petitioner must establish both prongs of the test 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.

As noted above, this Court will afford the post-conviction court’s factual findings a

presumption of correctness, rendering them conclusive on appeal unless the record

preponderates against the court’s findings. See id. at 578. However, our supreme court has

“determined that issues of deficient performance by counsel and possible prejudice to the

defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]

is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

Furthermore, on claims of ineffective assistance of counsel, Petitioner is not entitled

to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994). This Court may not second-guess a reasonably-based trial strategy, and we cannot

grant relief based on a sound, but unsuccessful, tactical decision made during the course of

the proceedings. See id. However,such deference to the tactical decisions of counsel applies

only if counsel makes those decisions after adequate preparation for the case. See Cooper

v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Once a guilty plea has been entered, effectiveness of counsel is relevant only to the

extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective

assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently

made. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400

U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the effectiveness of

counsel, Petitioner must demonstrate that counsel’s representation fell below the range of

competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Under

Strickland v. Washington, Petitioner must establish: (1) deficient representation; and (2)

prejudice resulting from the deficiency. 466 U.S. 668, 694 (1984). However, in the context

of a guilty plea, to satisfy the second prong of Strickland, Petitioner must show that “there

is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966

S.W.2d 54, 55 (Tenn. Crim. App. 1997).

When analyzing a guilty plea, we look to the federal standard announced in Boykin

v. Alabama, 395 U.S. 238 (1969), and the State standard set out in State v. Mackey, 553

S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin,

the United States Supreme Court held that there must be an affirmative showing in the trial

-6-
court that a guilty plea was voluntarily and knowingly given before it can be accepted. 395

U.S. at 242. Similarly, our Tennessee Supreme Court in Mackey required an affirmative

showing of a voluntary and knowing guilty plea, namely, that the defendant has been made

aware of the significant consequences of such a plea. Pettus, 986 S.W.2d at 542. The

standard is the same for a “best interest” or Alford plea, that is, “whether the plea represents

a voluntary and intelligent choice among the alternative courses of action open to the

defendant.” Alford, 400 U.S. at 31.

A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,

inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial

court must determine if the guilty plea is “knowing” by questioning the defendant to make

sure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;

Blankenship, 858 S.W.2d at 904.

Petitioner has failed to show that but for trial counsel’s alleged deficiencies, he would

have refused to plead guilty and insisted on going to trial. Petitioner testified that he felt he

had no choice but to take the offer because trial counsel did not “give a damn” about his case.

However, the transcript of the guilty plea hearing reflects that the trial court discussed the

ramifications of the guilty plea with Petitioner. Petitioner was thoroughly questioned by the

trial court to ascertain whether he understood the effects of the plea.

The plea hearing also indicates that Petitioner knew what he was doing, understood

the plea, and agreed that it was what he wanted to do to resolve the case. Petitioner has

failed to show by clear and convincing evidence that he received ineffective assistance of

counsel or that his guilty plea was involuntary. Moreover, Petitioner has failed to prove he

did not understand the consequences of his plea. Trial counsel testified that Petitioner was

the one who wanted to seek a plea deal and that he reviewed the deal with Petitioner prior

to its entry. The post-conviction court accredited the testimony of trial counsel. “[Q]uestions

of credibility of the witnesses, the weight and value of the evidence, and resolution of

conflicts in the evidence are matters entrusted to the trial judge as the trier of fact,” and the

post-conviction court’s credibility determinations are conclusive on appeal unless the

evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We

find no evidence to preponderate against the findings of the post-conviction court. Further,

Petitioner has failed to show that there is a reasonable probability that the proceedings would

have concluded differently had counsel performed as Petitioner now claims he should have.

Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006) (citing Strickland, 466 U.S. at 687). The

evidence does not preponderate against the determination of the post-conviction court.

-7-
Conclusion

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

___________________________________

JERRY L. SMITH, JUDGE

-8-