         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 10, 2003

                   ROBERT L. DREW v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                            No. 95-D-2559    Steve Dozier, Judge



                      No. M2003-00593-CCA-R3-CD - Filed June 1, 2004


The petitioner, Robert L. Drew, appeals the denial of his petition for post-conviction relief. The
issue is whether he was denied the effective assistance of counsel. The judgment of the post-
conviction court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and DAVID G.
HAYES, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Robert L. Drew.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and
Doug Thurman, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        In November 1998, the petitioner was convicted of theft over $1000 and sentenced as a career
offender to twelve years in the Department of Correction. This court affirmed on direct appeal.
State v. Robert L. Drew, No. M2000-01853-CCA-R3-CD (Tenn. Crim. App., at Nashville, Sept. 7,
2001). The conviction relates to the robbery of Lavert's Market in Nashville. While waiting on a
customer, the store clerk opened the cash register drawer. The petitioner, who had been standing in
line behind the customer, reached into the drawer, grabbed "a hand full of twenty-dollar bills," and
ran. Id., slip op. at 2. The clerk chased the petitioner into a nearby field, where he was discovered
by police two hours later. He had $260 dollars in twenty-dollar bills in his left front pocket. Id. The
petitioner had walked off of a prison work detail shortly before the commission of the crime.

       In this appeal, the petitioner asserts that his trial counsel was ineffective by failing to
adequately investigate the case. He claims that trial counsel should have interviewed witnesses to
substantiate his claim that he had earned the $260 while in prison by shining shoes. The petitioner
also contends that trial counsel should have objected to the testimony of the store clerk and store
owner regarding the amount of cash taken because it was based upon inadmissible hearsay.

          Trial counsel, who had been practicing law for twenty-three years at the time of the
petitioner's trial, testified that another attorney had filed a motion to suppress the lineup identification
and had represented the petitioner at the hearing on that motion. Trial counsel recalled that after he
undertook representation of the petitioner, he contested the propriety of the lineup on appeal and that
this court, while determining that the lineup was unduly suggestive, found the error harmless. The
theory of the defense was that the petitioner had been misidentified as the perpetrator. According
to trial counsel, he cross-examined the state's witnesses extensively regarding inconsistencies in the
descriptions provided to police and their ultimate identification of the petitioner as the perpetrator.
He also pointed out that a major focus of his defense was that the amount of money discovered in
the petitioner's pocket did not match the amount of money taken from the market. Although he did
not personally interview each of the state's witnesses, trial counsel testified that he had the files of
the petitioner's first and second attorneys and the transcript of the suppression hearing. He recalled
that each of the eyewitnesses and the investigating officer had testified at the suppression hearing
and that their testimony was essentially the same as that they later provided at trial.

        In an attempt to verify the petitioner's claim that he had earned the money found in his pocket
by shining shoes, trial counsel interviewed two employees of the Department of Correction, both of
whom informed him that inmates were prohibited from carrying such sums of cash. Trial counsel
did acknowledge, however, that he was not personally familiar with the policy regarding inmates'
possession of cash at the institution where the petitioner was incarcerated prior to the offense.

        The petitioner testified at the evidentiary hearing that he was employed during his
incarceration and that he was paid $140 per month. He claimed that he had earned the $260
recovered from his pocket through his prison employment and by shining shoes at the prison. The
petitioner admitted, however, that inmates were permitted to carry no more than $110 in cash.

        The post-conviction court accredited the testimony of trial counsel that the file from the
petitioner's previous attorneys and the transcripts from the suppression hearing qualified as adequate
preparation. The court concluded that trial counsel had met with the petitioner at least forty times,
discussing all potential defenses, and observed that even though the petitioner contended that his trial
counsel should have called other witnesses to substantiate his claims regarding the $260 in his
possession at the time of his arrest, those witnesses were not made available at the evidentiary
hearing. The post-conviction court ultimately determined that trial counsel's performance met
constitutional guidelines.

        Under our statutory law, the petitioner bears the burden of proving the allegations in his post-
conviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003).
Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy
of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). On appeal, the findings of fact made by the post-conviction court are conclusive and will not


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be disturbed unless the evidence contained in the record preponderates against them. 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 credibility of the witnesses and the weight and value to be afforded their testimony
are questions to be resolved by the post-conviction court. Bates v. State, 973 S.W.2d 615 (Tenn.
Crim. App. 1997).

        Claims of ineffective assistance of counsel are regarded as mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the post-conviction court's factual findings, our
review is de novo, and the post-conviction court's conclusions of law are given no presumption of
correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

        A petitioner seeking post-conviction relief on the basis of ineffective assistance of counsel,
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, he is not entitled to relief. Our supreme court described the standard of review as follows:

               Because a petitioner must establish both prongs of the test, a failure to prove
       either deficiency or prejudice provides a sufficient basis to deny relief on the
       ineffective assistance claim. Indeed, a court need not address the components in any
       particular order or even address both if the petitioner makes an insufficient showing
       of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

         Here, trial counsel testified that he did not believe that it was necessary to interview the
state's witnesses because he had the benefit of their testimony from the suppression hearing. As part
of his preparation, he interviewed Department of Correction employees regarding the policy on
inmates carrying large sums of cash. The petitioner failed to present witnesses at the evidentiary
hearing to corroborate his claim that inmates were permitted to carry up to $110 in cash. Moreover,
while trial counsel did not question Department of Correction officials regarding the petitioner's
work in the prison, neither his employment status nor the policy regarding the possession of cash by


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inmates would have explained the petitioner's possession of $260 at the time of his arrest. This
amount is considerably more than he claimed to have earned each month and more than he was
permitted, even by his own assertions, to possess during his incarceration. The post-conviction court
specifically accredited the testimony of trial counsel regarding his investigation of the case. Under
these circumstances, it is our view that the petitioner is not entitled to relief.

       Accordingly, the judgment is affirmed.


                                                      ___________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




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