            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                      FILED
                                 AT KNOXVILLE                      September 9, 1999

                                                                   Cecil Crowson, Jr.
                               JULY 1999 SESSION                   Appellate C ourt
                                                                       Clerk



MICHAEL TODD DRINNON,           *     C.C.A. # 03C01-9808-CC-00305

      Appellant,                *     HAMBLEN COUNTY

VS.                             *     Hon. Ben K. Wexler, Judge

STATE OF TENNESSEE,             *     (Post-Conviction)

      Appellee.                 *




For Appellant:                        For Appellee:

W. Douglas Collins, Attorney          Paul G. Summers
Evans & Beier, LLP                    Attorney General and Reporter
P.O. Box 1754
Morristown, TN 37816                  Marvin S. Blair, Jr.
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      John Dugger and Victor Vaughn
                                      Assistant District Attorneys General
                                      419 Allison Street
                                      Morristown, TN 37814




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The petitioner, Michael Todd Drinnon, appeals the trial court's denial of

his petition for post-conviction relief. In this appeal of right, the single issue

presented for our review is whether the petitioner was denied the effective

assistance of counsel at trial. We affirm the judgment of the trial court.



              On April 26, 1996, the petitioner was convicted of driving under the

influence and driving on a revoked license. The trial court imposed an eleven-

month, twenty-nine day sentence with a fifty percent release eligibility date for

driving under the influence, second offense, and ordered a concurrent, forty-five day

sentence for driving on a revoked license. Fines totaled $1,500.00. This court

affirmed on direct appeal. State v. Michael Drinnon, No. 03C01-9611-CR-00431

(Tenn. Crim. App., at Knoxville, Dec. 18, 1998). Application for permission to

appeal to the supreme court was denied on April 20, 1998.



              On June 18, 1998, the petitioner filed a petition for post-conviction

relief alleging, among other things, the ineffective assistance of counsel at trial. In

particular, the petitioner claimed that there were inadequacies in the investigation

and evaluation of the case and that his trial counsel failed to properly communicate.

At the conclusion of the evidentiary hearing, which included the testimony of the

petitioner and that of his trial counsel, Clifton Barnes, the trial court fully accredited

the position of the state. In its ruling, the trial court rejected each of the following

arguments:

              (1) that counsel was insufficient for the failure to file
              motions to suppress the police videotape of the
              investigatory stop and subsequent arrest;

              (2) that counsel was ineffective for having advised and
              encouraged the petitioner to testify on his own behalf
              without the benefit of a psychological evaluation and
              despite a "mental disability" on the part of petitioner and

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              "chronic brain syndrome disorders"; and

              (3) that counsel was ineffective by the failure to
              introduce evidence of mitigating factors at the sentencing
              hearing.



              In order for the petitioner to be granted relief on grounds of the

ineffective assistance of counsel, he must establish that the advice given or the

services rendered were not within the range of competence demanded of attorneys

in criminal cases and that, but for his counsel's deficient performance, the results of

his trial would have been different. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975);

Strickland v. Washington, 466 U.S. 668 (1984). This court may not second-guess

tactical and strategic choices unless those choices were uninformed and due to

inadequate preparation. Hellard v. State, 629 S.W.2d 4 (Tenn. 1982). Counsel may

not be deemed to have been ineffective merely because a different procedure or

strategy might have produced a different result. Williams v. State, 599 S.W.2d 276

(Tenn. Crim. App. 1980).



              At the evidentiary hearing, the petitioner must prove his allegations by

clear and convincing evidence in order to qualify for relief. Tenn. Code Ann. § 40-

30-210(f). On appeal, the burden is on the petitioner to show that the evidence at

the hearing preponderated against the findings of the trial judge. Clenny v. State,

576 S.W.2d 12 (Tenn. Crim. App. 1978). Otherwise, the findings of fact made by

the trial court are conclusive. Graves v. State, 512 S.W.2d 603 (Tenn. Crim. App.

1973).



              In this instance, the burden was on the petitioner not only to establish

deficiency in performance but also prejudice in result. Here, the petitioner has been

obviously unable to establish how or why he would have prevailed had he


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challenged the propriety of the investigatory stop or the admissibility of the

videotape of his arrest. The defendant has also failed to establish how a

psychological evaluation would have served to benefit his cause. Furthermore, the

petitioner has been unable to suggest how his cause would have been better served

had he not taken the stand to testify in his own behalf. That strategy appears to

have been sound under the circumstances and is not subject to second-guess.

Finally, the failure to introduce evidence of the defendant's disabilities and medical

records at the sentencing hearing was not deemed important by the trial judge who

imposed the sentence. The petitioner did have a prior criminal history. The record

indicates that the trial judge was aware of physical problems suffered by the

petitioner prior to the imposition of sentence, which by all appearances falls within

the statutory guidelines. In fact, the jury concluded that he was guilty of driving

under the influence of narcotic pain medication prescribed by a physician, not

alcohol impairment. Parenthetically, the defendant, at trial, hardly contested the

charge of driving on a revoked license.



              In our view, the petitioner has failed to demonstrate that the evidence

presented at the evidentiary hearing preponderates against the findings and

conclusions made by the trial court.



              Accordingly, we affirm the judgment of the trial court.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge




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CONCUR:



_____________________________
David H. Welles, Judge



_____________________________
Joe G. Riley, Judge




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