### FILED September 9, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1999 SESSION

MICHAEL TODD DRINNON , * C.C.A. # 03C01-9808-CC-00305 Appellant, * HAMBLEN CO UNTY VS. * Hon. Ben K. Wexler, Judge STATE OF TENNESSEE, * (Post-Conviction) Appellee. *

For Appellant : For Appellee : W. Douglas Collins, Attorney Paul G. Summers Evans & Beier, LLP Attorney General and Repor ter P.O. Box 1754 Morristown, TN 37816 Marvin S. Blair, Jr. Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243 John Dugger and Victor Vaughn Assistant District A

ttorneys General 419 Allison Street Morristown, TN 37814

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, Michael Todd Dr innon, appeals the trial cour t's denial of his petition for post-conv iction relief. In this appeal of right, the single issue present ed for ou r review is whet her the pe titioner was denied the eff ective assistance of counsel at trial. We affirm the judgment of the trial court.

On April 26, 1996, the petitio ner was convicted of dr iving under the influence and driving on a revoked license. The tr ial court imposed an elevenmonth, twenty-nine day sentence with a fifty perc ent release eligibili

ty date for driving under the influence, second offense, and ordered a concur rent, forty-five day sentence for driving on a revoked license. Fines totaled $1,500.00. This court affirmed on direct appeal. State v. Michael Dri nnon , No. 03C01-9611-CR-00431 (Tenn. Crim. App., at Knoxv ille, Dec. 18, 1998). Appl ication for permission to appeal to the supreme court w as denied on April 20, 1998.
On June 18, 1998, the petitioner fil ed a petition for post-convi ction relief alleging, among

other things, the ineffectiv e assistance of counsel at tri al. In particular, the petitioner claimed that there were inadequacies in the inv estigation and evaluation of the case and that his trial counsel failed t o properly communicate. At the conclusion of the evidentiary hearing, w hich included the testimony of the petitioner and that of his tri al counsel, Clifton Barnes, the trial court fully accredited the position of the state. In its ruling, the trial c

ourt rejected each of the follow ing arguments: (1) that counsel was insufficient for the failure to file

motions to suppress the polic e videotape of the investigatory s

top and subsequent arrest; (2) that counsel was ineffective for having adv ised and encouraged the petitioner to testify on his own behalf without the benefit of a psychol ogical evaluation and despite a "mental disability " on the part of petitioner and3 "chronic brain syndrome disorders"; and (3) that counsel was ineffective by the failure to introduce evidence of mitigating factors at the sentenci ng hearing.
In order for the petitioner to be granted relief on grounds of the ineffective assistance of counsel , he must establish that the adv ice given or the services re ndered we re not with in the ran ge of com petence demand ed of at torneys in criminal cases and that,but for his counsel's deficient performance, the results of his trial would hav

e been different. Baxter v. Rose , 523 S.W.2d 930 (Te nn. 1975); Strickland v. Washington , 466 U.S. 668 (1984). This court may not second-guess tactical and strategic

choices unless those choic es were uninformed and due to inadequate preparation. Hellard v. State , 629 S.W.2d 4 (Tenn. 1982). Counsel may not be deemed to have been ineffective merely because a different procedu re or strategy might hav

e produced a different result. Williams v. State , 599 S.W.2d 276 (Tenn. Crim. App. 1980).

At the evidentiary hear ing, the petitioner must pr ove his allegations by clear and convincing

evidence in order to q ualify for relief. Tenn. Code Ann. § 40- 30-210(f). On appeal, the burden i s on the petitioner to show that the evidence at the hearing preponderated against the findings of the trial judge. Clenny v. State , 576 S.W.2d 12 (Tenn. Crim. App. 1978). Otherw ise, the findings of fact made by the trial court are concl usive. Graves v. State , 512 S.W.2d 603 (Tenn. Crim. App. 1973).
In this instance, the burden was on the petitioner not only to establish deficiency in performance but al so prejudice in result. Here, the petitioner has been obviously unable to es

tablish how or why

he would have prev

ailed had he4 challenged the propriety of the investigatory

stop or the admissibilit y of the videotap e of his a rrest. Th e defen dant has also fai led to est ablish ho w a psychological ev

aluation would have ser ved to benefit his cause. Fur thermore, the petitioner has been unable to suggest how his cause w ould have been better serv ed had he not taken the stand to testify in his own behalf. That str ategy appears to have been sound under the circ umstances and is not subject to second-guess. Finally, the failure to introduce evidence of the defendant's disabilities and medical records at the sentencing hearing was not deemed impor tant by the trial judg e who imposed the sentence. The petitioner did have a prior criminal history. The reco rd indicates that the trial j udge was aware of phy sical problems suffered by the petitioner prior to the imposition of sentence, which by all appearances f alls within the statutory guideli nes. In fact, the jury concluded that he was guilt y of driving under the influence of narcotic pain medication prescribed by a physician, not alcohol impairment. Parentheti cally, the defendant, at trial, hardly contested the charge of driving on a revoked license.

In our view, the petitioner has failed to demonstrate that the evidence presented at the evidentiar y hearing preponderates against the findings and conclusions made by the tr ial court.
Accordingly, w

e affirm the judgment of the trial cour t.

________________________________ Gary R. Wade, Presiding Judge5 CONCUR:

_____________________________ David H. Wel les, Judge

_____________________________ Joe G. Riley, Judge