                                                FILED
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE
                                                   May 19, 1998
                        JANUARY 1998 SESSION
                                                Cecil Crowson, Jr.
                                                Appellate C ourt Clerk

ERNEST LAWSON,                   )
                                 )
           Appellant,            )    C.C.A. No. 03C01-9608-CR-00286
                                 )
vs.                              )    McMinn County
                                 )
STATE OF TENNESSEE,              )    Honorable R. Steven Bebb, Judge
                                 )
           Appellee.             )    (Post Conviction)



FOR THE APPELLANT:                    FOR THE APPELLEE:

CHARLES M. CORN                       JOHN KNOX WALKUP
Public Defender                       Attorney General & Reporter
P.O. Box 1453
Cleveland, TN 37364-1453              MICHAEL J. FAHEY, II
                                      Assistant Attorney General
                                      425 Second Ave. North
                                      Second Floor, Cordell Hull Bldg.
                                      Nashville, TN 37243-0494

                                      JERRY N. ESTES
                                      District Attorney General

                                      AMY F. ARMSTRONG
                                      Asst. District Attorney General
                                      P.O. Box 647
                                      Athens, TN 37371-0647




OPINION FILED:___________________


AFFIRMED


CURWOOD WITT, JUDGE
                                       OPINION

                  The petitioner, Ernest Lawson, appeals the McMinn County Criminal

Court's dismissal of his petition for post conviction relief. Lawson was convicted of

possession of marijuana and possession of cocaine for resale following a jury trial

and received an effective twelve year sentence. On direct appeal to this court, his

convictions were affirmed and his effective sentence modified to ten years. State

v. Ernest Lawson, No. 185 (Tenn. Crim. App., Knoxville, June 18, 1991), perm. app.

denied (Tenn. 1992) ("Ernest Lawson I"). The supreme court denied review of his

case on May 4, 1992. Thereafter, Lawson filed his pro se post-conviction petition

on July 19, 1993. The petition was summarily dismissed by the court below. On

appeal, this court found error in that dismissal and reversed and remanded the case

for appointment of counsel and further proceedings under the Post Conviction

Procedure Act of 1967.1 Ernest Lawson v. State, No. 03C01-9401-CR-00037

(Tenn. Crim. App., Knoxville, July 7, 1994) ("Ernest Lawson II"). The court below

appointed counsel and allowed the petitioner an opportunity for a hearing. Lawson

chose not to present evidence at the time allotted for his hearing and asked the

court to consider his allegations based solely upon review of the record of trial. The

lower court found his allegations without merit and dismissed the petition. In this

appeal of that adverse determination, Lawson claims the trial court erred in finding

he was afforded the effective assistance of counsel at trial and in failing to state its

specific findings of fact and conclusions of law as to each allegation of the petition

on the record or in an order. Following a review of the record, we affirm the trial

court's dismissal of Lawson's petition.




                                           I


         1
             Tenn. Code Ann. § 40-30-101 to -124 (1990 and Supp. 1994) (repealed
1995).

                                           2
               First, we take up the issue of whether the trial court erred in failing to

recite its findings of fact and conclusions of law as to each allegation of the petition.

Lawson claims the "order dismissing the petition should be set aside and/or the

case should be remanded" with instructions for the trial court to provide its findings

and conclusions. The state has chosen not to respond to this issue in its brief.2



               Former Code section 40-30-118 requires that

       Upon the final disposition of every petition, the court shall enter a final
       order, and except where proceedings for a delayed appeal 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. § 40-30-118(b) (1990) (repealed 1995). The record clearly

reflects the trial court's failure to meet the statutory requirements in either its oral or

written orders. Thus, the question becomes whether this failure requires reversal.



               This court has interpreted the language of section 40-30-118(b) to be

mandatory. See, e.g., Brown v. State, 1 Tenn. Crim. App. 462, 467, 445 S.W.2d

669, 671 (1969). To be sure, the requirement is in place to facilitate appellate

review of the trial court's determinations. State v. Swanson, 680 S.W.2d 487, 489

(Tenn. Crim. App. 1984). Nevertheless, the trial court's failure to comply with the

section's requirement that it specifically state its findings and conclusions does not

necessarily mandate reversal. See, e.g., State v. Higgins, 729 S.W.2d 288, 290-91

(Tenn. Crim. App. 1987); Swanson, 680 S.W.2d at 489. The rule that reversal is not

always required is generally relied upon in cases where the trial court's findings and



       2
        We take this opportunity to admonish parties and their attorneys
appearing in this court that their briefs "shall contain" argument on the issues
presented, citation to authorities, and references to the record. Tenn. R. App. P.
27(a), (b); Tenn. R. Ct. Crim. App. 10(b). This court is empowered to strike a
deficient brief and direct the offending party or attorney to file a new brief and to
impose costs on the offending party or attorney. See Tenn. R. Ct. Crim. App.
10(a).

                                            3
conclusions are found in the record (such as in the court's oral pronouncements at

the conclusion of the hearing) but not in the written order of dismissal. See, e.g.,

Higgins, 729 S.W.2d at 290-91. Additionally, the rule has been applied where the

facts are undisputed. See Webb v. State, 4 Tenn. Crim. App. 723, 743, 475 S.W.2d

228, 236 (1971) (Galbreath, J., dissenting).



                In the case before us, the trial court was asked to review the record

of trial and determine whether the petitioner received the effective assistance of

counsel. Specific complaints were lodged against counsel's performance. No

testimonial evidence of the petitioner, his trial counsel, or the witnesses he claimed

should have been called was offered in support of his claims. Thus, we perceive

this situation to be one where the facts are undisputed, and the real issue is what

conclusions should be drawn from those facts. The conclusion drawn from the facts

was stated collectively -- the petitioner was not entitled to relief on any of the claims.

In this situation, we find harmless the trial court's failure to make specific findings

and conclusions as to each allegation. Reversal is not required.



                                            II

                In the remaining issue, Lawson claims he was denied the effective

assistance of counsel in numerous respects. 3 On appeal, he has challenged the

dismissal of several of those claims. The state claims the trial court's result was

correct as to all of the specific allegations of ineffective assistance, save one

allegation in which the state failed to respond in its brief.4


       3
       The petition raises several issues in addition to ineffective assistance;
however, in his brief Lawson concedes that only the issue of ineffective
assistance is properly before this court in light of our opinion in the previous
appeal of this case. See Ernest Lawson II, slip op. at 3-4 (issue of ineffective
assistance of counsel was not previously determined or waived, therefore, it was
proper basis for post conviction claim).
       4
           See supra, n.2.

                                            4
              In evaluating claims of ineffective assistance, the finder of fact must

indulge a strong presumption that counsel's conduct falls within the range of

reasonable professional assistance and must evaluate counsel's performance from

counsel's perspective at the time of the alleged error and in light of the totality of the

evidence. Strickland v. W ashington, 466 U.S. 690, 695, 104 S. Ct. 2066, 2069

(1984). The petitioner must demonstrate that there is a reasonable probability that

but for counsel's deficient performance, the result of the proceeding would have

been different. Strickland, 466 U.S. at 695, 104 S. Ct. at 2069. A trial court's

findings of fact following a post-conviction hearing have the weight of a jury verdict.

Bratton v. State, 477 S.W.2d 754, 756 (Tenn. Crim. App. 1971). On appeal, those

findings are conclusive unless the evidence preponderates against the judgment.

Butler v. State, 789 S.W.2d 898, 900 (Tenn. 1990).



              As discussed in section I above, the trial court failed to fulfill its

obligations under Code section 40-30-118(b). As a result, there are no findings of

fact to be afforded "the weight of a jury verdict." However, the record of trial amply

supports the trial court's dismissal of each allegation challenged on appeal. In light

of the trial court's deficient order, we briefly summarize the relevant facts which

support the trial court's dismissal of each allegation of ineffectiveness raised on

appeal.5



              A very brief summary of the facts underlying Lawson's conviction is of

assistance in understanding the ineffective assistance allegations presented.

Lawson was stopped for speeding on Interstate 75 in McMinn County. A state

trooper and an assistant district attorney general who was with the trooper at the


       5
       We decline to address those issues raised in the petition which have not
been challenged in this appeal.



                                            5
time of the stop observed marijuana in the car Lawson was driving. The passenger

compartment of the car was searched, and a small bag of marijuana was

discovered underneath an arm rest. A further search of the trunk revealed a

package wrapped in duct tape inside a shaving kit. The trooper opened the

package and found 140 grams of cocaine.



Motion to Suppress

              Lawson contends his trial attorney was ineffective in four particulars

in his representation at the motion to suppress the fruits of the warrantless search

of the vehicle.



              First, he claims trial counsel failed to exploit the inconsistent testimony

and attack the credibility of the trooper and assistant district attorney general who

apprehended him. Contrary to his assertions, we find no inconsistency in the

testimony about where marijuana was observed in the vehicle. Both the trooper and

the assistant district attorney general testified they saw marijuana and marijuana

residue in the seat and floorboard of the vehicle and a bag of marijuana underneath

an arm rest. There was no inconsistency for trial counsel to exploit. Likewise, we

find no merit in Lawson's claim counsel should have attacked the officer's and

assistant district attorney general's credibility because the marijuana on the seat

and floorboard was not tested and the marijuana was not introduced at trial. The

record reveals that the marijuana found under the arm rest was tested and

confirmed to be marijuana. An expert witness testified about the test results. A

portion of the substance observed on the seat and floorboard included a marijuana

leaf and marijuana seeds, which were recognized as such by the witnesses. We

fail to see that counsel could have mounted a successful credibility attack in light of

these facts of record.




                                           6
              Second, Lawson claims trial counsel should have attacked the trial

court's finding at the motion to suppress that the defendant was trying to hide

something after the trooper and assistant district attorney general initiated pursuit

of him. The record reveals testimony which clearly supports the trial court's finding

in this regard at the motion to suppress. The merits of the motion to suppress itself

have been previously determined by this court on direct appeal. Ernest Lawson I,

slip op. at 3-19. Moreover, we fail to see that counsel should have performed

differently or that a different performance would have yielded a favorable result.



              Third, Lawson claims the testimony is confusing regarding the location

where the trooper and assistant DA were sitting on the interstate prior to his

apprehension. We find no inconsistency in the record. Therefore, this allegation

must fail.



              In his final issue related to the motion to suppress, the defendant

attacks trial counsel's choice of legal argument and reliance on decisional authority.

This court engaged in a thorough review of the motion to suppress on direct appeal

and found the trial court's determination proper. Ernest Lawson I, slip op. at 3-17.

Thus, we are constrained to find that Lawson did not have a valid legal basis for

challenging the search results he sought to have suppressed. In other words, a

different tactic would not have produced a different result.



Motion for Continuance

              Lawson finds fault with the level of vigor employed by counsel in

seeking a continuance based upon then-President Bush's "War on Drugs" Speech

given the evening before jury selection commenced. The record reflects that

counsel ably argued the motion.       Moreover, the propriety of the trial court's

determination was considered by this court on direct appeal. Ernest Lawson I, slip

                                          7
op. at 18. We fail to see how a different tactic would have produced a different

result.



Denial of Witnesses and Evidence

              Lawson asks us to find fault with trial counsel's effectiveness (1) in

arguing for a continuance based upon the absence of two witnesses who allegedly

would support his defense, (2) in failing to subpoena these witnesses, and (3) in

failing to subpoena one of the witnesses' court records. However, Lawson has not

provided us with the testimony these witnesses would have offered had they been

subpoenaed and/or the continuance been granted to obtain their presence.

Moreover, he has failed in this proceeding to produce the court records which

allegedly would have assisted his defense. As such, we can find no prejudice that

has befallen him as a result of counsel's alleged shortcomings.



Fingerprint Evidence

              In his next issue, Lawson attacks counsel's performance relative to

trial testimony that fingerprint evidence was not collected from the vehicle Lawson

was driving and its contents. The assistant DA testified that fingerprint evidence

was not collected because the materials found in the vehicle were not conducive to

fingerprint collection, and further, Lawson was the only occupant of the car "so we

knew his fingerprints are going to be all over the car." Lawson claims counsel

should have objected to this testimony and should have pointed out that Lawson's

fingerprints were not found all over the car. First, the record reflects that counsel

requested a ruling about the admissibility of this evidence and obtained an adverse

ruling. Second, the evidence does reflect that none of Lawson's fingerprints were

found; the assistant DA testified that no fingerprint evidence was collected and the

trooper testified he was unaware of any collection of fingerprint evidence. The

record fails to support any deficient performance of counsel.

                                         8
Withdrawn Question

               Next, Lawson takes issue with counsel's withdrawal of a question

asked of a state trooper about the identity of the individuals present during a

discussion with Lawson about helping law enforcement catch other individuals

involved in drug trafficking. The record reflects that the trooper had testified

inconsistently on the issue, and counsel effectively brought that out through cross-

examination. The question was withdrawn after the court ruled it had been asked

and answered. Additionally, we see no way a different result could have been

obtained had counsel handled his cross-examination of this witness differently on

this point.



Inventory Form

               Lawson's next grievance is that his trial counsel failed to obtain the

vehicle inventory form prior to trial and that counsel's failure to do so resulted in

unpreparedness. He has failed to demonstrate that counsel could have or would

have proceeded differently had he known the contents of the vehicle inventory form

prior to trial, and the record fails to reveal that the inventory form provided any

information which would have brought about a different result had counsel been

aware of it before trial.



Stipulated Chain of Custody

               Lawson finds fault with trial counsel's stipulation to the chain of

custody of the cocaine. He claims counsel should have required strict proof;

however, he offered no evidence of any deficiency in the chain of custody, and the

record fails to demonstrate any shortcoming. Thus, we find no fault in counsel's

stipulation nor any resulting prejudice.



Rebuttal Witness Testimony

                                           9
                Lawson's next complaint is with trial counsel's failure to renew a

motion to strike the testimony of a rebuttal witness and in his failure to request an

instruction that the evidence of a drug transaction between Lawson and the witness

was for purposes of rebuttal of Lawson's testimony and not evidence of the

transaction itself. At trial, Lawson testified he had never sold cocaine nor dealt with

individuals who sold cocaine. He was cross-examined thoroughly and maintained

his position. In rebuttal, an undercover narcotics agent from the State of Ohio

testified she had purchased cocaine from Lawson on two occasions. First, we see

no benefit from renewing a motion to strike after it had been overruled. We upheld

the admissibility of this evidence in Lawson's direct appeal. Ernest Lawson I, slip

op. at 19. Second, we are unable to determine the merits of counsel's effectiveness

on the jury instruction issue. The charge has not been made a part of the post

conviction record, and it is not contained in the record of Lawson's direct appeal.

Further, Lawson has failed to cite any authority compelling the necessity of this

instruction.6 See Tenn. R. Ct. Crim. App. 10(b).




Cumulative Effect of Errors

                Finally, Lawson claims the cumulative effect of the aforementioned

actions and inactions of counsel amounted to ineffective assistance at trial.

Because we have found no merit in any of these allegations, we conclude Lawson

was not deprived of effective counsel based on cumulative shortcomings.



                In summary, the record before us fails to demonstrate any error

requiring reversal. The judgment of the trial court is affirmed.




       6
           See supra, n.2.

                                          10
                                 _______________________________
                                 CURWOOD WITT, JUDGE

CONCUR:


_____________________________
GARY R. WADE, PRESIDING JUDGE



_____________________________
JOSEPH M. TIPTON, JUDGE




                                11
