Michael Todd Drinnon v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE September 9, 1999
Cecil Crowson, Jr.
JULY 1999 SESSION Appellate C ourt
Clerk
MICHAEL TODD DRINNON, * C.C.A. # 03C01-9808-CC-00305
Appellant, * HAMBLEN COUNTY
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 Reporter
P.O. Box 1754
Morristown, TN 37816 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 eleven-
month, 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
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"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. § 40-
30-210(f). On appeal, the burden is 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). Otherwise, the findings of fact made by
the trial court are conclusive. 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 also prejudice in result. Here, the petitioner has been
obviously unable to establish how or why he would have prevailed had he
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challenged the propriety of the investigatory stop or the admissibility of the
videotape of his arrest. The defendant has also failed to establish how a
psychological evaluation would have served to benefit his cause. Furthermore, the
petitioner has been unable to suggest how his cause would have been better served
had he not taken the stand to testify in his own behalf. That strategy appears to
have been sound under the circumstances 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 important by the trial judge who
imposed the sentence. The petitioner did have a prior criminal history. The record
indicates that the trial judge was aware of physical problems suffered by the
petitioner prior to the imposition of sentence, which by all appearances falls within
the statutory guidelines. In fact, the jury concluded that he was guilty of driving
under the influence of narcotic pain medication prescribed by a physician, not
alcohol impairment. Parenthetically, 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 evidentiary hearing preponderates against the findings and
conclusions made by the trial court.
Accordingly, we affirm the judgment of the trial court.
________________________________
Gary R. Wade, Presiding Judge
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CONCUR:
_____________________________
David H. Welles, Judge
_____________________________
Joe G. Riley, Judge
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