# FILED
March 18, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

1999 SESSION

JAMES MICHA

EL PITTS, ) ) Appellant, ) C.C.A. No. 01C01-9803-CR-00130 ) vs. ) Davidson County ) STATE OF TENN ESSEE, ) Honorable Walter C. Kurtz, Judge ) Appellee. ) (Post-Conviction) ) FOR THE APPELLANT: FOR THE APPELLEE: DALE M. QUILLEN JOHN KNOX WALKUP MICHAEL J. FLANAGAN Attorney General & Reporter 95 White Bridge Road, Suite 208 Nashville, TN 37205 DARYL J. BRAND Assistant Attorney General 425 Fifth Avenue Nor th Nashville, TN 37243 JOHN ZIMMER MAN Asst. Dist. Att

orney General Washington Sq., Suite 500 222-2nd Avenue Nor th Nashv

ille, TN 37201-1649

OPINION FILED: _____________ AFFIRMED -

RULE 20
JAMES CURWOOD

WITT, JR., JUDGE2 OPINION

The petitioner, J ames Mi chael Pitts, appeals the Dav idson County Criminal Court’s dismissal of his 1997 petition for post-conv iction relief

in which he attacked his 1993 conviction on mult iple counts of delivery of cocaine. In hi s petition, petitioner alleges v ariou s in stances of the ineffective assist ance of trial counsel, including the failure to fil e a timely motion to suppress the defendant’s pretrial statement, the failure to adequately prepare for tr ial, the failure to superv ise the defendant in his conversations with law enforcement officers, the fail ure to prevent the introduction at trial ev idence of the defendant’s other crimes and prior bad acts, the failure to present evidenc e on the issue of sentencing enhancement, and the fail ure to appear at the hearing on the motion for new trial. We have heard or al argumentand reviewe d the reco rd and ap plicable law, and we affirm the judgment of the trial court pursuant to Rule 20 of the rules of this cour t.

The record contains a transc riptof the post-conviction hear ing. The trans cript and th e record as a whole fail to establish any of the allegations of ineffe ctive assistance of counsel. The tra nscri pt reflects that some of the allegations

were expressly

waived during th e hearing. Notably, the petitioner was unable to prove any merit to the untimely-filed motion t o suppress his pre-tri al statement, trial counsel’s failure to prepare the petitioner’s case, counsel’s failure to appear at the hearing on the moti on for new trial or that , if he failed to appear, any resulting prejudice, coun sel’s r esponsibility for conv ersations between the petitioner

and law enforcement officers, or counsel’s responsibility for any breach of agreement be tween the pe titioner and the officers. He fail ed to present any evidence that, if presented at trial, could have res ulted in any different result.

The petitioner had the burden of proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-39-210(f) (1997). The post-conviction court’s f indings of fact are afford ed the weig ht of a ju ry verdict an d are conc lusive3

on appeal unless the evidence in the record preponderates against them. State v. Henley , 960 S.W.2d 572, 578 (Tenn. 1997). We do not reweigh or r eevaluate the evidence. Id . at 579. T he burden is on the appellant to demonstrat e that the evidence preponderates against the pos t-conviction court’ s findings. Id . In this case, the petitioner failed to carr y his burden both at the tr ial court leveland o n appeal, and moreover, there would be no precedential value to a full opinion in this matter. Accordingly, the matter is affirmed pursuant to Rule 20.

_____________________________ JAMES CURW OOD WIT T, JR., Judge CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ JOHN EVERETT W ILLIAMS, Judge