# FILED
July 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE FEBRUARY

1997 SESSION
TERRY LEE BLANFORD, * * Appellant, * VS. * * STATE OF TENNESSEE, * * Appellee. *

* C.C.A. # 01C0 1-9605-CR- 00222

DAVID SON C OUNTY Hon. An n Lacy Joh ns, Judge (Post-Conv iction)

For Appellant : Mark C. Scru ggs Attorney at Law P.O. Box 158932 Nashvil le, TN 37215-8932 For Appellee: Charles W. Burson Attorney Gen eral & Repor ter Lisa A. Nay lor Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Roger D. Moore Assistant D istrict A

ttorney Gener

al Washington Square, Suite 50 0 222 Second Avenue, North Nashvil le, TN 37201-1649

OPINION FILE D:

AFFIRMED

GARY R. WADE, JUDGE1 In hi s appel lat e bri ef, the pet it ioner also mak es refer ence to t he issue of whet her t he vi deotape d sta tem ent w as m ade while th e he was intoxic ated and there fore sho uld ha ve b een sup pres sed

. The body of the ar gument, however , cont ains a sentence acknowl edging that the pet it ioner was not im paire d by intox ication at the tim e of th e sta tem ent. 2 OPINION The petitioner, Te rry Lee Blanford, appeals f rom the trial court’s dismissal of hi s first petit ion for post-con viction relief. The sing le issue presented for
our re view is wh ethe r the trial cour t erre d by f indi ng tha t cou nsel was no t ine ff ecti ve for failing to pursue the defense of voluntary i ntoxicati on. 1

We f ind no merit to the issue and affirm t he judgment of the tr ial court.
On April 7 , 1992, the pet itioner pled guilt y to felo ny murde r. During a party at th e Kentucky r esidence of Ronnie Oller and Penny Oller, the petitioner and the Ollers decided to dri ve to Tennessee t o rob the vi ctim, Dr. G ul Telwar, who had been their former em ployer. The petitioner broke into a back window of an office trailer located on the victim's car lot and waited for the victim to arrive. The Ollers remained in the c ar. Upon the v ictim's ar rival a bout an hour later , there was an argument over a car title; the petitioner shot the victim eight times, took his billfold and several car keys , and escaped thr ough the trai ler wi ndow.
Several day

s later, the petitioner g ave a vi deo-taped statement t o police. Dur ing a conferenc e with hi s attorney, the petitioner insisted that

because he was drunk , he did not remember the events s urrounding the murder. After researching the issue, defense counsel decided that intoxi cation woul d not be a plausible defense t o the felony murde r charge. The petitioner t hen pled guil ty to felony murder a nd receiv ed a life sentence. There was no direct appeal.

When a petitioner seeks post- convicti on relief on the bas is of3 ineffective assi stance of counsel, he must first est ablish that the service s rendered or the advice given was below "the range of competence dem anded of atto rneys in criminal c ases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Seco nd, he must show that the deficienci es "actually had an advers e effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Shoul d the petitioner fail to establish either factor, no relief is warranted. As to guilty pleas, the petitioner must establish a reasonable proba bility that, but for the errors of his coun sel, he would not have entered the plea and would have in sisted on go ing to tri al. Hill v. Lockhart , 474 U.S. 52, 59 (1985).

On ap pea l, th e fin dings of f act m ade by the trial cour t are conc lusive and will not be disturb ed unless the ev idence contained in the recor d preponderates against them. Rhoden v. State , 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991); Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App . 1988). The burden is on the petitioner to show that th e evidence pr eponderated agai nst those finding s. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

The petitioner argues that voluntary i ntoxicati on is a defense to felony murder if the under lying charge, suc h as especiall y aggr avated burg lary or especi ally

aggr avate d robbe ry, contai ned a sp ecific intent requ iremen t. He claim s that the case shou ld have been t ried before a jur y, rely ing on this

defense. The petitioner al so contends that b ecause intox ication w ould have been a complete defense to both first a nd second degree murder, he coul d have been conv icted of nothing more than voluntary manslaughte r.

The trial cour

t found that a taped stat ement by the peti tioner prov ided details of the killing that only one involved in the shooting would know. Implicit in4 this finding is the finding that the petiti oner was no t so intox icated that he c ould not remember the ev ents surounding the murder as helater tri ed to claim. The t rial court also found th at defense counsel was effective in his represen tation of the petitioner.

Defense counsel test ified that it was his opinion that intoxication would not be an effective de fense for the petitione r. We agree. At the time of the offense, felony murder w

as defined as "[a] reckless ki lling of another committed in the perpetration of, or

attempt to perpetr

ate" any of the enumer ated felonies. Tenn. Code Ann. § 39-13- 202(a) (2) (1991 repl.) . Voluntary intoxic ation is not a defense to crimes inv

olving a reckless

mens rea: "If rec klessness es tablishes an el ement of an offense and the person is unaware of a r isk because of v oluntary i ntoxicati on, the person's unawareness is i mmaterial in a prosecution for that offense." Tenn. Code Ann. § 39-11-502( b) (1991 repl .). In conseq uence, defense counsel cannot be faulted for failing to pursue an i ntoxicati on defense. It could not have been successful.
In our view, there were other factors that influence d trial counsel's recommendation to thepetitioner t o accept a plea ag reement. Ronnie Oller had already been convicted of murder and sentenced to life plus twenty year s. Both Oller and hi s wife w ere to be w itnesses for the state at the peti tioner's tr ial. The state had a vi deo-taped confession from which thejury c ould assess fir sthand the peti tion er's m enta l cap acit y. A gui lty ple a, un der t hese circu msta nces , may h ave been a sound tacti cal decisi on. Defense counsel appears to hav e conducted an adequate inv estigation, including legal re search, before recommending the pl ea. The record also

establishes that the petitio ner made a know ing and v oluntary pl ea based upon advice from his counsel. From all of this, we cannot find deficiency in5 the performance of counsel . There was a basis in t he law for hi s advice t o the petitioner.
Accordingl y, the judg ment of the trial court is affirmed.

Gary R. W ade, Ju dge CONCUR:

David G. Hayes, Jud ge

Curwood Witt, Judge