             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE               FILED
                                MAY 1997 SESSION
                                                              September 18, 1997

                                                               Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
DARRELL E. HELTON,              )
                                )      No. 03-C-01-9608-CR-00320
      APPELLANT,                )
                                )      Hawkins County
v.                              )
                                )      James E. Beckner, Judge
STATE OF TENNESSEE,             )
                                )      (Post-Conviction)
      APPELLEE.                 )




FOR THE APPELLANT:                     FOR THE APPELLEE:

Gerald T. Eidson                       John Knox Walkup
205 Highway 66 South                   Attorney General & Reporter
Rogersville, TN 37857                  500 Charlotte Avenue
                                       Nashville, TN 37243-0497

                                       Janis L. Turner
                                       Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       C. Berkeley Bell, Jr.
                                       District Attorney General
                                       109 South Main Street, Suite 501
                                       Greeneville, TN 37743

                                       J. Douglas Godbee
                                       Assistant District Attorney General
                                       Hawkins County Courthouse
                                       Rogersville, TN 37857




OPINION FILED: ______________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION



                                         1
       The appellant, Darrell E. Helton (petitioner), appeals as of right from a judgment of

the trial court dismissing his suit for post-conviction relief following an evidentiary hearing.

In this Court, the petitioner contends he was denied his constitutional right to the effective

assistance of counsel because counsel failed to brief an issue in this Court on direct

appeal. After a thorough review of the record, the briefs submitted by the parties, and the

law governing the issue presented for review, it is the opinion of this Court that the

judgment of the trial court should be affirmed.

        The petitioner was convicted of aggravated child abuse. The trial court sentenced

the petitioner to confinement for twelve (12) years in the Department of Correction. This

court affirmed the petitioner’s conviction and sentence. Donna Bailey and Darrell Eugene

Helton v. State, Hawkins County No.03-C-01-9207-CR-00266, 1993 WL 480428 (Tenn.

Crim. App., Knoxville, November 22, 1993). The supreme court denied the petitioner’s

application for permission to appeal on April 4, 1994.

       Counsel for the petitioner filed a motion for a change of venue. It appears the

motion was predicated upon “some pretrial publicity.” Counsel argued the motion. The

trial court took the motion under advisement to see if a fair and impartial jury could be

selected to decide the guilt of the petitioner. Concluding that a fair and impartial jury was

impaneled, the trial court dismissed the motion for a change of venue.

       The attorney who represented the petitioner testified on behalf of the state during

the evidentiary hearing. He testified there were three major issues which had merit. While

he did not believe the defendant would be granted relief on the change of venue issue, he

nevertheless placed the issue in the brief at the last moment. According to this Court’s

opinion, counsel failed to brief the issue. This Court held the issue had been waived. See

Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. Rule 10.

       The constitutional right to the effective assistance of counsel extends to the

representation of an accused in the appellate courts. Evitts v. Lucey, 469 U.S. 387, 105

S.Ct. 830, 83 L.Ed.2d 821 (1985). As the United States Supreme Court said in Evitts:


              [N]ominal representation on an appeal as of right . . . does not
              suffice to render the proceedings constitutionally adequate; a
              party whose counsel is unable to provide effective
              representation is in no better position than one who has no
              counsel at all.


                                               2
469 U.S. at 396, 105 S.Ct. at 836, 83 L.Ed.2d at 830. In other words, appellate counsel

must function as an advocate and actively promote the client’s position by scrutinizing the

record for error and by presenting legal arguments favorable to the accused. See Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Mylar v. Alabama, 671

F.2d 1299 (11th Cir. 1982), reh’g denied en banc, 677 F.2d 117 (11th Cir. 1982), cert.

denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983).

       Before a petitioner is entitled to relief based upon the ineffective assistance of

counsel, he must establish by a preponderance of the evidence (a) counsel made errors

so serious that counsel was not functioning as counsel guaranteed by the Sixth

Amendment to the United States Constitution and Article I, § 9 of the Tennessee

Constitution and (b) counsel’s errors were so serious as to deprive the defendant of his or

her appeal as of right or a serious issue raised in the appellate court. See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Porterfield v. State,

897 S.W.2d 672, 677 (Tenn. 1995); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). In this

case, the petitioner established counsel erroneously failed to support the issue regarding

a change of venue with an argument. However, the petitioner has failed to establish he

was prejudiced by counsel’s error in this regard.




                                   ____________________________________________
                                         JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
      JOSEPH M. TIPTON, JUDGE



______________________________________
       CURWOOD WITT, JUDGE




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