            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE            FILED
                              FEBRUARY 1997 SESSION
                                                              July 30, 1997

                                                        Cecil W. Crowson
TERRY LEE BLANFORD,               *                   Appellate Court Clerk
                                          C.C.A. # 01C01-9605-CR-00222
                                  *
                 Appellant,       *       DAVIDSON COUNTY
VS.                               *
                                  *       Hon. Ann Lacy Johns, Judge
STATE OF TENNESSEE,               *
                                  *       (Post-Conviction)
                 Appellee.        *
                                  *




For Appellant:                            For Appellee:

Mark C. Scruggs                           Charles W. Burson
Attorney at Law                           Attorney General & Reporter
P.O. Box 158932
Nashville, TN 37215-8932                  Lisa A. Naylor
                                          Assistant Attorney General
                                          Criminal Justice Division
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0493

                                          Roger D. Moore
                                          Assistant District Attorney General
                                          Washington Square, Suite 500
                                          222 Second Avenue, North
                                          Nashville, TN 37201-1649




OPINION FILED:




AFFIRMED




GARY R. WADE, JUDGE
                                               OPINION

                 The petitioner, Terry Lee Blanford, appeals from the trial court’s

dismissal of his first petition for post-conviction relief. The single issue presented for

our review is whether the trial court erred by finding that counsel was not ineffective

for failing to pursue the defense of voluntary intoxication.1



                 We find no merit to the issue and affirm the judgment of the trial court.



                 On April 7, 1992, the petitioner pled guilty to felony murder. During a

party at the Kentucky residence of Ronnie Oller and Penny Oller, the petitioner and

the Ollers decided to drive to Tennessee to rob the victim, Dr. Gul Telwar, who had

been their former employer. The petitioner broke into a back window of an office

trailer located on the victim's car lot and waited for the victim to arrive. The Ollers

remained in the car. Upon the victim's arrival about an hour later, there was an

argument over a car title; the petitioner shot the victim eight times, took his billfold

and several car keys, and escaped through the trailer window.



                 Several days later, the petitioner gave a video-taped statement to

police. During a conference with his attorney, the petitioner insisted that because he

was drunk, he did not remember the events surrounding the murder. After

researching the issue, defense counsel decided that intoxication would not be a

plausible defense to the felony murder charge. The petitioner then pled guilty to

felony murder and received a life sentence. There was no direct appeal.



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

        1
          In his appellate brief, the petitioner also mak es reference to the issue of whether the video-
tape d statem ent w as m ade while the he was intoxicated and there fore sho uld ha ve been sup pres sed .
The body of the argument, however, contains a sentence acknowledging that the petitioner was not
impaired by intox ication at the tim e of the statem ent.

                                                    2
ineffective assistance of counsel, he must first establish 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). Second, he

must show that the deficiencies "actually had an adverse effect on the defense."

Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, no relief is warranted. As to guilty pleas, the petitioner must

establish a reasonable probability that, but for the errors of his counsel, he would

not have entered the plea and would have insisted on going to trial. Hill v. Lockhart,

474 U.S. 52, 59 (1985).



              On appeal, the findings of fact made by the trial court are conclusive

and will not be disturbed unless the evidence contained in the record preponderates

against them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991); Brooks

v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the

petitioner to show that the evidence preponderated against those findings. Clenny

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



              The petitioner argues that voluntary intoxication is a defense to felony

murder if the underlying charge, such as especially aggravated burglary or

especially aggravated robbery, contained a specific intent requirement. He claims

that the case should have been tried before a jury, relying on this defense. The

petitioner also contends that because intoxication would have been a complete

defense to both first and second degree murder, he could have been convicted of

nothing more than voluntary manslaughter.



              The trial court found that a taped statement by the petitioner provided

details of the killing that only one involved in the shooting would know. Implicit in


                                            3
this finding is the finding that the petitioner was not so intoxicated that he could not

remember the events surounding the murder as he later tried to claim. The trial

court also found that defense counsel was effective in his representation of the

petitioner.



              Defense counsel testified that it was his opinion that intoxication would

not be an effective defense for the petitioner. We agree. At the time of the offense,

felony murder was defined as "[a] reckless killing of another committed in the

perpetration of, or attempt to perpetrate" any of the enumerated felonies. Tenn.

Code Ann. § 39-13-202(a) (2) (1991 repl.). Voluntary intoxication is not a defense to

crimes involving a reckless mens rea: "If recklessness establishes an element of an

offense and the person is unaware of a risk because of voluntary intoxication, the

person's unawareness is immaterial in a prosecution for that offense." Tenn. Code

Ann. § 39-11-502(b) (1991 repl.). In consequence, defense counsel cannot be

faulted for failing to pursue an intoxication defense. It could not have been

successful.



              In our view, there were other factors that influenced trial counsel's

recommendation to the petitioner to accept a plea agreement. Ronnie Oller had

already been convicted of murder and sentenced to life plus twenty years. Both

Oller and his wife were to be witnesses for the state at the petitioner's trial. The

state had a video-taped confession from which the jury could assess firsthand the

petitioner's mental capacity. A guilty plea, under these circumstances, may have

been a sound tactical decision. Defense counsel appears to have conducted an

adequate investigation, including legal research, before recommending the plea.

The record also establishes that the petitioner made a knowing and voluntary plea

based upon advice from his counsel. From all of this, we cannot find deficiency in


                                            4
the performance of counsel. There was a basis in the law for his advice to the

petitioner.



              Accordingly, the judgment of the trial court is affirmed.




                                          Gary R. Wade, Judge

CONCUR:




David G. Hayes, Judge




Curwood Witt, Judge




                                           5
