                                                                                             06/01/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 16, 2018

             LEOPOLD MPAWINAYO v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
               Nos. 2013-D-2982, 2013-D-3155 Mark Fishburn, Judge


                              No. M2017-01660-CCA-R3-PC


The Petitioner, Leopold Mpawinayo, appeals the Davidson County Criminal Court’s denial
of his petition for post-conviction relief from his 2015 convictions for two counts of
violating the habitual motor vehicle offender (HMVO) law and his effective six-year
sentence. The Petitioner contends that the court erred by denying relief because he received
the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Leopold Mpawinayo.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Glenn Funk, District Attorney General; and Matthew Thomas, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       This case arises from the Petitioner’s two convictions after a bench trial for violating
the HMVO law. The trial court sentenced the Petitioner to consecutive three-year sentences
to be served on probation, and the Petitioner did not appeal. The trial court ultimately
revoked the Petitioner’s probation after determining that he had violated the conditions of his
release by being arrested for four counts of aggravated assault. The court ordered the
Petitioner to serve one year in confinement at 100% service, followed by six years’ enhanced
supervised probation. The Petitioner appealed, and this court affirmed the trial court’s
determinations. See State v. Leopold Mpawinayo, No. M2016-00778-CCA-R3-CD, 2016
WL 7155056 (Tenn. Crim. App. Dec. 7. 2016), no perm. app. filed.
        On May 6, 2016, the Petitioner filed the instant petition for post-conviction relief,
alleging that he received the ineffective assistance of counsel because trial counsel did not
request discovery materials, did not file a motion to suppress evidence, and “refused to
appeal” his convictions. The Petitioner also alleged that his privilege against self-
incrimination was violated, that the prosecution failed to disclose favorable evidence, that his
convictions were obtained with the use of “illegal evidence,” and that he should not have
been convicted because he had a valid driver’s license at the time of the offenses. On April
28, 2017, post-conviction counsel filed an amended petition, alleging that trial counsel
provided ineffective assistance by failing to communicate adequately, by misleading the
Petitioner about the likelihood of conviction, and by failing to appeal the Petitioner’s
convictions. The amended petition also alleged that the Petitioner did not understand the
charges and believed the charges would be dismissed because he had a valid driver’s license
at the time of the offenses.

       At the post-conviction hearing, the Petitioner testified that he retained trial counsel
and that counsel stated the Petitioner “would win the case” because the Petitioner had a
driver’s license at the time of the offenses. The Petitioner said that counsel filed “a motion
to do everything” but that counsel wanted him to accept a plea offer. The Petitioner said that
the offer counsel presented was for two years’ probation. The Petitioner said that counsel
agreed he had a valid driver’s license and that as a result, the Petitioner rejected the offer.

        The Petitioner testified that he understood limited English and that it took time to read
and write English. He said that on the day of the trial, no time existed for trial counsel to
read the waiver of a jury trial form but that he and counsel discussed choosing a bench trial.
The Petitioner said that counsel believed the trial court would dismiss the case because the
Petitioner had a valid driver’s license.1 The Petitioner said that although he testified at the
trial, he did not understand what was happening. The Petitioner said that counsel did not
explain why the court found him guilty and that after the trial, counsel initially did not return
his telephone calls or respond to text messages inquiring about an appeal. The Petitioner
said that counsel answered one of his telephone calls and stated counsel could file an appeal.
 The Petitioner said no appeal was filed.


1
  The Petitioner’s post-conviction hearing testimony reflects that he believed he had a valid driver’s license
and was, therefore, innocent of the charges. The record is unclear, however, whether the Petitioner believed
he was innocent because he had a valid license at the time of the offenses or because he obtained a valid
license after his arrests. The Petitioner gave conflicting testimony in this regard. In any event, the trial
transcript reflects that the disputed factual issue was whether the Petitioner had knowledge he was classified
as a HMVO and prohibited from driving at the time of the 2012 and 2013 offenses. The defense argued at the
trial that although the Petitioner had been declared a HMVO in 2005, he believed the classification had been
removed by the trial court in 2009 and that as a result, the Petitioner did not have knowledge at the time of the
offenses at issue in this appeal that he was violating the HMVO law.


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        On cross-examination, the Petitioner testified that he and trial counsel met at
counsel’s office approximately four times and that although counsel stated he could win the
case during their first two meetings, counsel presented the plea offer during their third
meeting. The Petitioner said that he rejected the offer because it involved probation and
because he was innocent of the charges. The Petitioner denied that counsel informed him
that obtaining a valid license after his arrests was irrelevant to whether the Petitioner had a
valid license at the time of the offenses. The Petitioner believed it was unfair to proceed to
trial on the charges because he had obtained a valid license at the time of the trial. The
Petitioner denied trial counsel called or sent him text messages after the trial to discuss an
appeal. The Petitioner said that counsel called him before sentencing to discuss what would
occur at the hearing.

        Trial counsel testified that he initially represented the Petitioner relative to a fourth
offense driving under the influence (DUI) charge and that the Petitioner later retained his
services relative to the HMVO charges. Counsel said that he spoke with the prosecutor
about a plea agreement and that the prosecutor would not agree to resolve the HMVO
violations unless an agreement also resolved the DUI charge. Counsel said that he explained
to the Petitioner the prosecutor’s position regarding a plea agreement and that he advised the
Petitioner the sentences would most likely be imposed consecutively because the Petitioner
had been on bond at the time of the HMVO charges. Counsel said that the Petitioner’s focus
relative to the fourth offense DUI charge was that the offense occurred approximately thirty
days before the ten-year expiration of the previous DUI enhancement conviction. Counsel
said that he agreed with the Petitioner that the DUI charge was unfair but that the problem
was the statute. Counsel said the Petitioner “refused to listen.” Counsel said that he and the
Petitioner reviewed the relevant law and a flow chart counsel created and that he explained to
the Petitioner that the prosecutor would not agree to dismiss any charge that required 100%
service of a sentence. Counsel said he advised the Petitioner to settle the cases because
counsel believed any sentence imposed would be longer if a conviction resulted from a trial.
 Counsel said that after numerous meetings and advising the Petitioner to accept a plea offer,
the Petitioner demanded a trial.

        Trial counsel testified that he and the Petitioner reviewed the jury trial waiver form.
Counsel said he advised the Petitioner that the HMVO charge was “clear cut” and that
counsel hoped the defense would “get lucky at trial.” Counsel said that the Petitioner
testified at the trial that he had a valid driver’s license and that the trial judge found the
Petitioner credible. Counsel said that the trial judge requested case law to support the
defense’s claim that the Petitioner had a valid driver’s license at the time of the offenses, that
court recessed for about one hour to allow counsel to retrieve the case law from his office,
and that during the recess, the prosecutor found documentation in the court clerk’s file that
“completely destroyed” the Petitioner’s testimony. Counsel said that although he objected to
allowing the State to reopen its case-in-chief to submit the documents, the court received the

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documents showing the Petitioner did not have a valid license at the time of the offenses.2
Counsel said that he would have alleged on appeal that the trial court erred by allowing the
State to reopen its case and submit the documents.

       Trial counsel testified that he advised the Petitioner that they could not appeal the
convictions until after the trial court imposed the sentences. Counsel said that he had
difficulty contacting the Petitioner before the sentencing hearing but that counsel was able to
speak to the Petitioner about what to expect at the hearing. Counsel said that he advised the
Petitioner that the notice of appeal had to be filed within thirty days of the sentencing
hearing, that the Petitioner was angry at counsel after sentencing was imposed, and that the
Petitioner “stormed out.” Counsel said that the Petitioner would not return counsel’s or
counsel’s assistant’s telephone calls and text messages requesting the Petitioner’s permission
to seek appellate relief and warning the Petitioner that time was limited to file an appeal. On
cross-examination, counsel agreed that he did not have documentation showing that he
advised the Petitioner of the thirty-day time period to file a notice of appeal.

       The post-conviction court denied relief. The court discredited the Petitioner’s
testimony that trial counsel simultaneously advised the Petitioner that the trial court would
dismiss the HMVO charges and that the Petitioner should accept the State’s plea offer. The
court credited counsel’s testimony that he explained the charges to the Petitioner, explained
the Petitioner’s exposure, and urged the Petitioner to accept the offer. The court determined
that the Petitioner failed to show counsel provided deficient performance relative to
explaining the charges and the likelihood of conviction.

       The post-conviction court determined that trial counsel represented the Petitioner
adequately at the trial. The court noted that the Petitioner’s HMVO status was
straightforward and found that counsel’s strategic decision for a bench trial did not constitute
deficient performance. The court found that the Petitioner signed a waiver of a jury trial

2
 The trial transcript reflects a lengthy discussion during closing arguments between the trial court judge and
counsel. The trial judge credited the Petitioner’s trial testimony that he returned to court in 2009 and received
some form of relief relative to the HMVO classification. The court questioned whether a court order
removing the HMVO classification was sufficient to reinstate the Petitioner’s driving privileges or whether
the HMVO classification remained effective until the Petitioner “actually [obtained] the license,” which
occurred in 2014 according to the post-conviction evidence. The two HMVO violations at issue in this appeal
occurred in 2012 and 2013. The trial court requested the defense and the State to provide it with legal
authority and stated that if the trial court’s restoring the Petitioner’s right to operate a motor vehicle removed
the HMVO classification, the Petitioner would receive an acquittal for each charge. The trial court recessed,
and when the proceedings resumed, the prosecutor presented “an order setting aside [the Petitioner’s] HMVO
status.” The order reflected that the Petitioner’s HMVO classification was removed on August 28, 2013, not
in 2009 as the Petitioner testified. Based upon the order, the trial court determined that the Petitioner
confused the date on which the HMVO classification was removed and found the Petitioner guilty of two
counts of violating the HMVO law.

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form and that the record did not reflect any objections by the Petitioner before the bench trial
began. The court determined that the Petitioner also failed to establish any prejudice as a
result of a bench trial.

        The post-conviction court determined that the Petitioner failed to establish trial
counsel provided deficient performance relative to filing an appeal. The court found that
counsel was retained by the Petitioner and that although no evidence at the hearing showed
the scope of counsel’s representation, trial counsel testified that he explained to the Petitioner
that the defense had thirty days to file an appeal. The court credited counsel’s testimony that
he repeatedly attempted to contact the Petitioner relative to filing an appeal and that counsel
received no response from the Petitioner. The court noted that the Petitioner testified that he
did not speak with counsel after the sentencing hearing. The court determined that the
Petitioner failed to show any prejudice. This appeal followed.

        The Petitioner contends that he received the ineffective assistance of counsel. He
argues that trial counsel failed to communicate adequately regarding the right to appeal the
HMVO convictions. The State responds that the post-conviction court properly denied
relief.
        Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing evidence.
 Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are binding on appeal,
and this court must defer to them “unless the evidence in the record preponderates against
those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40
S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s application of law to its factual
findings is subject to a de novo standard of review without a presumption of correctness.
Fields, 40 S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364,
368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to an
accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the

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performance prong, a petitioner must show that “the advice given, or the services rendered . .
. are [not] within the range of competence demanded of attorneys in criminal cases.” Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The post-
conviction court must determine if these acts or omissions, viewed in light of all of the
circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may not
second-guess a reasonably based trial strategy by his counsel, and cannot criticize a sound,
but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference, however,
only applies “if the choices are informed . . . based upon adequate preparation.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice prong, a
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.

         The record reflects that the post-conviction court credited trial counsel’s testimony
about his attempts to contact the Petitioner after the sentencing hearing in order to obtain the
Petitioner’s consent to file an appeal. Counsel testified that he advised the Petitioner that the
defense could not file an appeal until after the sentencing hearing. Counsel said that after the
sentencing hearing, he advised the Petitioner that an appeal had to be filed within thirty days
and that the Petitioner was angry with counsel and “stormed out.” Counsel said that the
Petitioner would not return counsel’s and his assistant’s telephone calls and text messages
requesting permission to file an appeal and warning that time was limited. Although the
testimony focused on counsel’s failure to file a notice of appeal, the Petitioner did not
present any evidence relative to the scope of counsel’s representation beyond the trial. We
note that the Petitioner, likewise, did not present evidence relative to whether counsel failed
to file a motion for a new trial. See Wallace v. State, 121 S.W.3d 652, 657 (Tenn. 2003); see
also Tenn. R. Crim. P. 37(e). The record supports the post-conviction court’s determinations
that the Petitioner failed to prove his ineffective assistance allegation. The Petitioner is not
entitled to relief on this basis.

      Based upon the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.



                                            ____________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE




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