       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                        AT NASHVILLE              FILED
                     AUGUST SESSION, 1998         October 9, 1998

                                               Cecil W. Crowson
CHRISTOPHER HENDERSON, )                     Appellate Court Clerk
                              C.C.A. NO. 01C01-9710-CR-00493
                       )
     Appe llant,       )
                       )
                       )      DAVIDSON COUNTY
VS.                    )
                       )      HON. CHERYL BLACKBURN
STATE OF TENNESSEE,    )      JUDGE
                       )
     Appellee.         )      (Post-Conviction)




FOR THE APPELLANT:            FOR THE APPELLEE:

JAMES ROBIN MCKINNEY, JR.     JOHN KNOX WALKUP
One W ashington S quare       Attorney General and Reporter
Suite 103
214 Se cond A venue N orth    DARYL J. BRAND
Nashville, TN 37201           Senior Counsel

                              KIM R. HELPER
                              Legal Assistant
                              425 Fifth Avenu e North
                              Nashville, TN 37243-0493

                              VICTOR S. JOHNSON
                              District Attorney General

                              ROGER MOORE
                              Assistant District Attorney
                              500 W ashington S quare
                              222 Se cond A venue N orth
                              Nashville, TN 37201



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

       On May 6, 19 94, App ellant, Ch ristopher Hend erson, p led guilty to

espe cially aggravated robbery and aggravated assault. The Davidson County trial

court sentenced Appellant to twenty-five years on the especially aggravated

robbery conviction and six years on the aggravated assault conviction. The trial

court ordered that the sentences served concurrently with each other but

cons ecutive ly to a ten-year sentence Appellant was serving in Wisconsin.

Appellant filed a pro se Petition for P ost-Conviction Relief on July 8, 1996;

counsel was appointed, and an amended petition was filed on November 27,

1996 which stated that Appe llant’s rig hts we re violat ed by tr ial cou nsel’s failure

to adeq uately in vestiga te App ellant’s case, as well as by misinformation supplied

to Appellant by counsel regard ing his releas e eligib ility date. A ppella nt app eals

from the trial court’s dismissal of his petition.



       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                        FACTS

       Appellant was charged with especially aggravated robbery, aggravated

assa ult and theft of property after an incident in the Davidson County home of Mr.

and Ms. Underwood. Appellant was admitted into the Underwood home after he

knocked on the door and asked to use the telephone. T he victims overh eard

Appellant asking s omeo ne for he lp in chan ging a flat tire. A fter Appe llant hung

up, his demeanor shifted: Mr. Underwood described it in terms of Appellant

“raving like a mad man.” Appellant cut Mr. Underwood with a knife on the cheek

and hands. He also cut Ms. Underwood on the chest and th rew a r ockin g cha ir


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at her befo re runnin g off with her purs e. The police, in inve stigating th e inciden t,

hit redial on the phone, and found that Appellant had called Charles Henderson.

Mr. Henderson reported that he had re cently s poke n with h is brother, A ppellant,

about a flat tire. Mr. and Ms. Underwood later viewed a photo line up and

identified Appellant as the person who attacked them.



       Appellant was originally represented by the Metropolitan Public Defender’s

Office, but eventually hired Andrei Lee as counsel in the case. At the post-

conviction hearing, Ms. Lee testified that she spoke with Appellant’s prior counsel

at the Pub lic Defen der’s Offic er, but that s he did no t attempt to rev iew an y file

that office might have assembled on Appellant’s case. Ms. Lee also stated that

she was un able to trac k down a poten tial alibi witness named by Appellant

because Appella nt gave h er insufficien t informa tion to loca te the person. Ms. Lee

stated that her research revealed that Appellant’s drug use was an insufficient

ground for a me ntal health defens e. Ms. Le e further stated that she found no

basis upon which to object to the photo line up. Ms. Lee testified that she

reviewed the State’s plea offer with Appellant and did not tell him that he would

be relea sed within a year of h is return to T ennes see from Wis consin.



                            POST-CONVICTION RELIEF




       Appellant contends that the trial co urt erred in denying his petition fo r post-

conviction relief based upo n the ineffective assista nce o f coun sel. We disagree.

In order for the petitioner to be granted relief on the ground s of ineffective

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

rendered were n ot within the ran ge of c omp etenc e dem ande d of atto rneys in

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

the trial would h ave bee n different. Baxter v. Rose, 523 S.W .2d 930 (Te nn.1975);

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



      The first com pone nt of the test es tablish ed in Strickland is as follows:



      A convicted defendant m aking a claim of ineffective
      assistance must identify the a cts or omissions of counsel
      that are alleged not to have been the result o f reaso nable
      professional judgm ent. The court m ust then determine
      whether, in light of all the circumstances, the identified
      acts or omissions were outside the wide range of
      profes siona lly competent assistance.        In making that
      determination, the court should keep in mind that
      couns el's function, as elaborated in prevailing professional
      norms, is to mak e the a dvers arial tes ting pro cess work in
      the particu lar case.

      Id., 466 U.S. at 690, 104 S.Ct. at 2066.


      To meet the second prong of the Strickland test, there must be a

reaso nable probab ility that, but for counsel's unprofessional errors, "the result of

the procee ding wo uld have been d ifferent." Id., 466 U.S. at 694-95, 104 S.C t. at

2068. The "different" result need not be an acquittal. A reason able pro bability

of being found guilty of the lesser charge, or shorter sentence, satisfies the

second prong in Strickland. Chambers v. Armontrout, 907 F.2d 825 , 832 (8th

Cir.1990).


      The ultima te stan dard is wheth er trial counsel's errors , if
      any, were so serious as to deprive the petitioner of a trial
      whos e resu lt is reliable. Unless each prong in Strickland
      is established, it cannot be said that the conviction
      resulted from a breakdown in the adversary process.




                                         -4-
Proctor v . State, 868 S.W.2d 669, 673 (Tenn. Crim. App. 1992)



        “In post-conviction relief proceedings, the petitioner has the burden of

proving the allegations in his petition by a preponderance of the evidenc e.”

McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the

factual findings of the trial court in hearings “a re conclusive on appeal unless the

evidence prepon derates against th e judgm ent.” State v. Buford , 666 S.W.2d 473,

475 (Tenn. Crim. App. 1983). This Court should not second-guess trial coun sel’s

tactical and strategic choices unless those choices were uninformed because of

inadequate preparation, Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn. 1982), and

counsel should not be deemed to have been ineffective merely because a

different pro cedure or strategy might ha ve produ ced a d ifferent resu lt. Williams

v. State, 599 S.W. 2d 276, 280 (Ten n. Crim. App . 1980). In the m atter sub judice,

the trial court found that the testimony of Appellant was not credible on the issue

of Ms. Lee ’s repre senta tion, an d furthe r found that Ap pellan t was w ell

represented by Ms. Lee. We find no evidence to the contrary. Without a showing

of prejudice , Appella nt is not en titled to post-co nviction relief. Procter v . State,

868 S.W .2d 669 , 672 (T enn. C rim. App . 1992). T his issue is without m erit.



       Accordingly, the judgment of the trial court is affirmed.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:




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___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




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