      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT NASHVILLE              FILED
                    DECEMBER 1997 SESSION
                                                     January 9, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
                            )
CURTIS ANTHONY MILLER,      )
                            ) C.C.A. No. 01C01-9701-CR-00026
      Appellant,            )
                            ) Davidson County
V.                          )
                            ) Honorable Seth Norman, Judge
                            )
STATE OF TENNESSEE,         ) (Post-Conviction: Ineffective Assistance
                            ) of Counsel)
      Appellee.             )



FOR THE APPELLANT:             FOR THE APPELLEE:

Jennie L. Brown                John Knox Walkup
229 Summit Ridge Drive         Attorney General & Reporter
Nashville, TN 37215
                               Clinton J. Morgan
                               Counsel for the State
                               450 James Robertson Parkway
                               Nashville, TN 37243-0493

                               Victor S. Johnson, III
                               District Attorney General

                               Roger Moore
                               Assistant District Attorney General
                               Washington Square, Suite 500
                               222-2nd Avenue North
                               Nashville, TN 37201-1649




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                      OPINION


       The appellant, Curtis Anthony Miller, appeals the denial of post-conviction

relief. He was convicted of second degree murder in February 1993 and was

sentenced to twenty years in prison. This Court affirmed his conviction in June

1994. In this post-conviction petition, the appellant’s sole issue is that he was

denied effective assistance of counsel. An evidentiary hearing was held on

August 23, 1996, and the appellant was denied post-conviction relief. We affirm.



       The appellant argues that his attorney was ineffective solely because he

failed to call as a witness Carl Miller, the appellant’s brother. The appellant

argues that his brother would have testified that the appellant and the victim,

Johnny Hicks, had argued earlier in the day about a pack of cigarettes. The

appellant maintains that his brother’s testimony would have helped his case,

which was based on self-defense, because his testimony would have been

evidence of the victim as the first aggressor.



       The appellant concedes that he and his attorney got along well and that

he followed his attorney’s advice on issues related to his trial. He admits that he,

Carl, and his attorney discussed whether Carl should testify, and they decided

that he should not because of his felony record. The appellant, however, now

contends that he was prejudiced by this decision not to call his brother at trial.



       The state asserts that the trial court did not err in denying post-conviction

relief. It maintains that Carl Miller’s testimony at the post-conviction hearing

indicated that the argument between the appellant and the victim “did not

amount to anything.” The state also notes that although the trial judge did not

produce written findings of fact and conclusions of law, he pronounced his

findings from the bench. The state argues that this oral pronouncement is

sufficient in light of the appellant’s meritless claim of ineffective assistance of

counsel.

                                          -2-
       To be granted relief on the ground of ineffective assistance of counsel, an

appellant must establish that the advice given or the services rendered were not

within the competence demanded of attorneys in criminal cases and that, but for

counsel’s deficient performance, the result of his or her trial would have been

different. Strickland v. Washington, 466 U.S. 668 (1984). In Tennessee, the

appropriate test is whether counsel’s performance was within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975).



      In post-conviction proceedings, petitioners bear the burden of proving

their allegations by a preponderance of the evidence. Black v. State, 794

S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State, 655 S.W.2d 191,

195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s findings of fact in

post-conviction hearings are conclusive on appeal unless the evidence

preponderates against those findings. Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990); State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983);

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



       First, the attorney’s decision not to call the appellant’s brother was a

strategic decision made apparently with input from the appellant and his brother.

Because the appellant is now unhappy with the outcome of his trial does not

make his attorney’s performance at trial deficient. This issue is without merit.

Second, with regard to the trial court’s pronouncement of its findings from the

bench, Tennessee Code Annotated § 40-30-211(b) (Supp. 1996) requires that

the trial court enter an order or written memorandum regarding findings of fact

and conclusions of law for each ground presented.1 Because the appellant’s


      1
          This statute provides:

                        Upon the final dis position of ever y petition, the court shall
              enter a final order, an d except wher e proceedings for delayed appea l
              are allowed, shall set forth in the order or a written memorandum of
              the case all grounds presented, and shall state the findings of fact
              and conclusions of law with regard to each such ground.

          Tenn. Code Ann. § 40-30-211(b) (Supp. 1996).

                                                -3-
claim of ineffective assistance of counsel is baseless, we find that any error by

the trial court in not reducing its findings to writing in this particular case was

harmless. Tenn. R. Crim. P. 52(a). However, in another case, failure to follow

Tenn. Code Ann. § 40-30-211(b) might not be harmless.



       Accordingly, we affirm the denial of post-conviction relief.




                                          -4-
                                   __________________________________
                                   PAUL G. SUMMERS, Judge


CONCUR:




______________________________
JOSEPH B. JONES, Presiding Judge




______________________________
WILLIAM M. BARKER, Judge




                                   -5-
