          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE

                         JANUARY SESSION, 2000


THOMAS FREEMAN,             )      NO. M1999-00177-CCA-R3-PC
                            )
      Appe llant,           )


VS.
                            )
                            )
                            )
                                   MARSHALL COUNTY        FILED
                            )      HON. CHARLES LEE February 25, 2000
STATE OF TENNESSEE,         )      JUDGE
                            )                             Cecil Crowson, Jr.
      Appellee.             )      (Post Co nvict ion - Clas s C F elon y) Clerk
                                                         Appellate Court



FOR THE APPELLANT:                 FOR THE APPELLEE:

N. ANDY MYRICK, JR.                PAUL G. SUMMERS
116 West Market Street             Attorney General & Reporter
Fayetteville, TN 37334
                                   TODD R. KELLEY
                                   Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243-0493

                                   MIKE MCCOWEN
                                   District Attorney General

                                   WEAKLEY E. BARNARD
                                   Assistant District Attorney
                                   407 M C Courthouse
                                   Lewisburg, TN 37091-3373



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION

       On December 3, 1997, pursuant to a plea agreement, Thomas Freeman, the

defendant and ap pellant, ple d guilty in the Marshall County Circuit Court to five (5)

Class C felonies involving the sale, delivery and possession of schedule II drugs for

which he rece ived an e ffective twelve (12) year s entenc e. He filed a petition for

post-conviction relief in November of 1998, and the trial court dismissed the petition.

On appeal, the defendant argues that the trial court erred in holding that the

defen dant re ceived the effe ctive as sistan ce of c ouns el.



After a revie w of the re cord, we affirm the ju dgme nt of the po st-convictio n court.



                        FACTUAL BACKGROUND
       On May 6, 1997, the defendant was stopped by police officers for not

displaying a tax sticker on his car. After police dogs alerted officers that the

defendant was carrying drugs, the officers observed the defendant throw a medicine

bottle, later found to contain crack cocaine, on the ground. Ove r two month s later,

on three separate dates, July 25, 1997, July 27, 1997, and July 31, 1997,

confidential informants purchased crack cocaine from the defendant. Finally, when

police officers went to the defendant’s home to arrest the defendant on August 27,

1997 for the above activity, they found a pill bottle containing crack cocaine.

       The defendant was then indicted for five sepa rate offen ses. Michael Randles,

then of the Public Defender’s Office, was appointed to represent the defend ant.

Soon thereafter, Mr. Randles entered into plea negotiations with the District

Attorn ey’s Office.   Mr. Randles informed the District Attorney’s office that he

intended to move to suppress the cocaine obtained a s a res ult of an autom obile

stop. The Assistant District Attorney assigned to the case informed Mr. Randles that

he would b e willing to negotiate a plea-bargain on all of the cases only if Mr. Randles


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refrained from moving to suppress the evide nce.              After investigating all of the

charges against the defendant and considering his chances of succeeding on the

suppression motion , Mr. Ran dles inform ed the d efenda nt that, in his o pinion, a plea

barga in would be desirable. The defendant agreed, and, following brief negotiations

between the District Attorney’s Office and Mr. Randles, the defend ant pled g uilty to

the cha rges in ex chang e for an e ffective twelve (12) year p rison sen tence.

       In November of 1998, the defendant challenged the convictions, claiming that

he had entered into the plea agreement involuntarily because he had been denied

the effective as sistance of couns el. More s pecifically, the defend ant claim ed that Mr.

Randles failed to move to suppress the evidence obtained as a result of the search

of the de fenda nt’s car; that Mr. Ran dles failed to mo ve to sup press the de fenda nt’s

confession; that Mr . Ran dles fa iled to m ove to s uppre ss the audio tapes made b y a

confidential informant; and, finally, that Mr. Randles erroneously advised the

defendant to stay in jail, rather than to mak e bon d, so th at the d efend ant co uld

receive medical treatment. The trial court found that the defend ant had failed to

carry his burden of proving that Mr. Randles had been ineffective.



           INEFFECTIVE ASSISTANCE OF COUNSEL
       When a petitio ner seeks post-conviction relief on th e basis of ineffective

assistance of counsel, the petitioner bears the burden of showing that (a) the

services rendered by trial counsel were deficient and (b) the deficient performance

was prejudicia l. Powe rs v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.19 96). In

order to demonstrate deficient performance, the petitioner must show that the

services rendered o r the advice given was below "the range of competence

demanded of attorney s in crimin al cases ." Baxte r v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). In order to demonstrate prejudice, the petitioner must show that there

is a reas onab le prob ability tha t, but for c ouns el's de ficient p erform ance , the res ult

of the proceeding would have been different. Strickland v. Washington, 466 U.S.

668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). "Because a petitioner


                                              -3-
must establish both prongs of the test to prevail on a claim of ineffective assistance

of counsel, failure to prove either deficient performance or resulting prejudice

provides a suffic ient ba sis to deny re lief on the cla im." Henley v. State, 960 S.W.2d

572, 580 (Ten n.1997) "Indeed , a court ne ed not a ddress the com ponen ts in any

particular order or even address both if the defendant makes an insufficient showing

of one co mpon ent." Id. "More over, o n app eal, the findings of fact made by the trial

court are conclusive and will not be disturbed unless the evidence contained in the

record prepon derates against th em." Adkins v. State, 911 S.W.2d 334, 347 (Tenn.

Crim. App. 1994). "The burden is on the petitioner to show that the evidence

prepon derated against th ose findin gs." Id.

        In this case, testimony at the post-conviction hearing revealed that the

defendant had not made a statement to police; thus, the re was n o confe ssion to

suppress.       Furthe rmor e, altho ugh M r. Ran dles o riginally c onsid ered trying to

suppress the cocaine found as a result of the automobile stop, he decided against

it for tactical reasons relating to the plea negotiations. The defendant has not

demonstrated that any further investigation would have yielded any evidence helpful

to the de fenda nt.        Fina lly, the trial c ourt im plicitly found th at the d efend ant’s

testimony, that he was coerced into confessing because Mr. Randles told the

defendant that he would receive medical care in prison, was incredible.1

        In short, the petitioner has not established that his attorney provided

deficient performance at trial or on appeal. Moreover, he has not demonstrated a

reasonable probability that, due to his attorney's alleged deficiencies, the result of

the pro ceed ing wo uld ha ve bee n differe nt. Acc ording ly, the tria l court p roper ly

denied the petition for post-co nviction relief.

The trial court's judgment is AFFIRMED.



                                          ___________________________________
                                          JERRY L. SMITH, JUDGE


  1
   Although the trial court did not specifically find the defendant’s testimony incredible on the record, Mr.
Randles’ testimony directly contradicted the defendant’s on this point, and the trial court held that the
defend ant did no t carry his bu rden.

                                                     -4-
CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
L. T. LAFFERTY, SENIOR JUDGE




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