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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE JULY 1999 SESSION

FILED

September 9, 1999 Cecil Crowson, Jr.

Appellate C ourt Clerk

MICHAEL TODD DRINNON, Appellant, VS. STATE OF TENNESSEE, Appellee.

* * * * *

C.C.A. # 03C01-9808-CC-00305 HAMBLEN COUNTY Hon. Ben K. Wexler, Judge (Post-Conviction)

For Appellant: W. Douglas Collins, Attorney Evans & Beier, LLP P.O. Box 1754 Morristown, TN 37816

For Appellee: Paul G. Summers Attorney General and Reporter Marvin S. Blair, Jr. Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243 John Dugger and Victor Vaughn Assistant District Attorneys General 419 Allison Street Morristown, TN 37814

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE

OPINION The petitioner, Michael Todd Drinnon, appeals the trial court's denial of his petition for post-conviction relief. In this appeal of right, the single issue presented for our review is whether the petitioner was denied the effective assistance of counsel at trial. We affirm the judgment of the trial court.

On April 26, 1996, the petitioner was convicted of driving under the influence and driving on a revoked license. The trial court imposed an elevenmonth, twenty-nine day sentence with a fifty percent release eligibility date for driving under the influence, second offense, and ordered a concurrent, forty-five day sentence for driving on a revoked license. Fines totaled $1,500.00. This court affirmed on direct appeal. State v. Michael Drinnon, No. 03C01-9611-CR-00431 (Tenn. Crim. App., at Knoxville, Dec. 18, 1998). Application for permission to appeal to the supreme court was denied on April 20, 1998.

On June 18, 1998, the petitioner filed a petition for post-conviction relief alleging, among other things, the ineffective assistance of counsel at trial. In particular, the petitioner claimed that there were inadequacies in the investigation and evaluation of the case and that his trial counsel failed to properly communicate. At the conclusion of the evidentiary hearing, which included the testimony of the petitioner and that of his trial counsel, Clifton Barnes, the trial court fully accredited the position of the state. In its ruling, the trial court rejected each of the following arguments: (1) that counsel was insufficient for the failure to file motions to suppress the police videotape of the investigatory stop and subsequent arrest; (2) that counsel was ineffective for having advised and encouraged the petitioner to testify on his own behalf without the benefit of a psychological evaluation and despite a "mental disability" on the part of petitioner and 2

"chronic brain syndrome disorders"; and (3) that counsel was ineffective by the failure to introduce evidence of mitigating factors at the sentencing hearing.

In order for the petitioner to be granted relief on grounds of the ineffective assistance of counsel, he must establish that the advice given or the services rendered were not within the range of competence demanded of attorneys in criminal cases and that, but for his counsel's deficient performance, the results of his trial would have been different. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668 (1984). This court may not second-guess tactical and strategic choices unless those choices 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 procedure or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276 (Tenn. Crim. App. 1980).

At the evidentiary hearing, the petitioner must prove his allegations by clear and convincing evidence in order to qualify for relief. Tenn. Code Ann.

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