        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                February 22, 2012 Session

                 JEFFREY KLOCKO V. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court of Davidson County
                      No. 2004-B-961    J. Randall Wyatt, Judge


                 No. M2011-00219-CCA-R3-PC - Filed March 28, 2012


Jeffrey Klocko (“the Petitioner”) filed for post-conviction relief, challenging his convictions
for aggravated sexual battery, sexual battery by an authority figure, and assault by offensive
or provocative contact, which resulted in an effective sentence of thirteen years. As his basis
for relief, he alleged numerous grounds of ineffective assistance of counsel. After an
evidentiary hearing, the post-conviction court denied relief, and this appeal followed. On
appeal, the Petitioner asserts that trial counsel failed to interview the Petitioner’s therapist
or mother and failed to call either of them at trial, resulting in ineffective assistance. Upon
a thorough review of the record, we affirm the judgment of the post-conviction court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Jeffrey Klocko.

Robert E. Cooper, Jr., Attorney General & Reporter; Brent C. Cherry, Senior Counsel; Victor
S. Johnson III, District Attorney General; Brian Holmgren, Assistant District Attorney
General; for the appellee, State of Tennessee.

                                          OPINION

                           Factual and Procedural Background

       A Davidson County jury returned guilty verdicts against the Petitioner for three counts
of aggravated sexual battery, six counts of sexual battery by an authority figure, and one
count of assault by offensive or provocative contact. This Court stated the facts underlying
the convictions as follows on direct appeal:
       The victim, A.R., was born on September 3, 1989. When she was two
or three years old, [the Petitioner] began dating A.R.’s mother, L.R. . . . L.R.
married [the Petitioner] when A.R. was nine years old. . . .

       When A.R. was eleven years old, [the Petitioner] began to run his hands
down her back and grab her buttocks, over her clothes, when he would give A.R.
a hug. . . . A.R. stated that these things occurred on an everyday basis. . . .

       Sometime prior to her thirteenth birthday, [the Petitioner] also began
touching A.R.’s breasts. . . .

....

       The touching continued after A.R.’s thirteenth birthday. One occasion
occurred when A.R. was putting the dishes away. [The Petitioner] wrapped his
arms around her from behind and grabbed her breasts with both of his hands.
He also grabbed her buttocks from behind while the two were in the kitchen.

        A.R. also remembered several incidents that happened in her bedroom.
[The Petitioner] walked into A.R.’s bedroom while she was changing clothes,
and he grabbed her buttocks. Eventually, [the Petitioner] began getting in bed
with A.R. in the early morning before he left for work. He got into bed with
her about once a week. On one occasion, [the Petitioner] got into bed with
A.R. and began rubbing her buttocks over her clothes. Another time, [the
Petitioner] got into bed with A.R. and put his hands inside A.R.’s pants and
rubbed her buttocks under her clothes. He also would touch her breasts over
and under her clothes when he got into bed with her. One time, A.R. had worn
a bra to bed. [The Petitioner] put his hand under her shirt and inside her bra in
order to fondle her breasts.

....

       A.R.’s mother stated that A.R. and [the Petitioner] had a good
relationship until A.R. was between ten and twelve years old. Around that
time, [the Petitioner] became verbally abusive towards A.R. and called her
things such as “stupid,” “bitch,” “whore,” and “worthless piece of crap.” L.R.
stated that [the Petitioner’s] comments caused A.R. to lose confidence in
herself. . . . L.R. also stated that [the Petitioner] often opened A.R.’s bedroom
door when she was changing clothes.



                                       -2-
               L.R. saw [the Petitioner] touch A.R.’s buttocks when he hugged her.
       A.R. complained to L.R. that [the Petitioner] touched her buttocks, breasts and
       vaginal area. L.R. told [the Petitioner] to stop, but [the Petitioner] denied
       touching A.R.’s breasts or vaginal area. L.R. found [the Petitioner] in A.R.’s
       bed twice. He said he was drunk and disoriented. . . . Even though L.R. knew
       this information, she never reported [the Petitioner’s] behavior to the police.

              On September 29, 2003, shortly after A.R.’s fourteenth birthday, Gina
       Nicole Proffitt, A.R.’s volleyball coach[,] drove A.R. home after a volleyball
       game. While they were in the car, A.R. told Ms. Proffitt she did not want to
       go home. A.R. then told Ms. Proffitt that [the Petitioner] had been touching
       her inappropriately. Ms. Proffitt reported the information to the Department
       of Human Services.

State v. Jeffrey Mark Klocko, No. M2006-01359-CCA-R3-CD, 2008 WL 2743692, at *1-3
(Tenn. Crim. App. June 16, 2008), perm. app. denied, (Tenn. Dec. 22, 2008). The trial court
sentenced the Petitioner to an effective sentence of fourteen years. The Petitioner appealed,
and this Court affirmed the convictions but remanded for resentencing. Id. at *1. On
remand, the trial court sentenced the Petitioner to an effective sentence of thirteen years.1
The Petitioner subsequently filed the instant petition for post-conviction relief, alleging
numerous grounds of ineffective assistance of counsel at trial.

        At the post-conviction hearing, the Petitioner testified that he first met trial counsel
around September of 2000, when he represented the Petitioner in an automobile accident
case. From this accident, the Petitioner suffered a traumatic brain injury, and trial counsel
successfully negotiated a settlement in the case. The settlement took place in October of
2003, which is, coincidentally, when the allegations arose that led to the Defendant’s
convictions. Thus, according to the Petitioner, trial counsel was aware of the Petitioner’s
injuries, medical records, and the fact that the Petitioner was seeing a therapist, Dr. Bonnie
Lenihan. The Petitioner noted that, at the same time, he had a different attorney representing
him in juvenile court for dependency and neglect proceedings but that trial counsel possessed
the depositions and transcripts of those proceedings. According to the Petitioner, trial
counsel also was aware of the Petitioner’s interview with a detective regarding the
allegations in this case. However, the Petitioner never conveyed to trial counsel that his brain
injury made it difficult for him to communicate because trial counsel kept putting off meeting
together before trial. The Petitioner provided names, addresses, and phone numbers of
family members who could serve as potential witnesses at trial, but trial counsel never called



       1
           The record does not indicate that the Petitioner filed any appeal from the resentencing.

                                                     -3-
them to testify. The Petitioner did not feel that he was able to convey clearly his theory of
the case at trial and that trial counsel did not prepare him adequately to testify.

        On cross-examination, the State asked the Petitioner what he felt he was not able to
communicate at trial. He stated that he believed the State fed A.R. fabricated testimony to
give on the witness stand. He also testified that A.R. started dating a boy and that the
Petitioner believed that the two were having sex, so he told her that he did not want her
spending time with this boy anymore. A.R. got very upset and “threatened” him, and “[t]wo
days later, DCS was at [the Petitioner’s] door.” A.R. had visited her father’s home in Ohio
before the allegations surfaced but after the alleged events took place. According to the
Petitioner, A.R.’s father later told A.R.’s mother that he and A.R. had planned the allegations
in order “to get rid of” the Petitioner. Additionally, A.R. told him “that she started this and
that she can stop it just like she started it.” When asked why none of this information came
out at the dependency and neglect proceeding, the Petitioner stated that, although his attorney
knew about this information, “[his attorney] felt that it would be difficult to prove and that
[A.R. would] probably deny it anyways.”

        The Petitioner also testified that, prior to trial, trial counsel did not inform him of the
charges against him or of any potential plea offer. However, the Petitioner stated that even
if he had received a plea offer, he still would have pled not guilty. He also felt that trial
counsel failed to ask him the proper questions on direct examination to elicit the Petitioner’s
theory.

       Carol Klocko, the Petitioner’s mother, testified that she has known A.R. since A.R.
was about six years old. A.R. regularly came to Michigan, where Klocko lives, for summer
vacation. In 2003, the year that the allegations arose, A.R. was about thirteen years old. She
came to Michigan that summer, and Klocko overheard A.R. telling her cousin, Sarah,2 about
“watching porn movies with [A.R.’s] brother in Ohio.” Klocko then stated,

        Sarah was grounded by her parents for something that [A.R.] had done. But
        she insisted . . . that Sarah had done that. And Sarah was upset. And [A.R.]
        came to her and says [sic] to Sarah, when you go back to school, you tell your
        teachers your parents molested you and you can do anything you want. I
        looked at [A.R.] and I said to her, where did you learn that? And her answer
        was her school.




        2
           The transcript does not provide a last name for A.R.’s cousin. Therefore, we will address her using
her first name. We intend no disrespect.

                                                     -4-
        After observing this dialogue, Klocko went to Sarah’s parents and told them what
A.R. said to their daughter. However, she did not remember ever telling the Petitioner about
the things A.R. said. She maintained that, although she did not think trial counsel ever knew
this information, she was available to be called as a witness at trial.

       Dr. Bonnie Lenihan, a licensed clinical worker, testified that the Petitioner began
coming to sessions on October 13, 2003, and attended approximately twenty sessions before
incarceration. She understood the Petitioner to have two issues. One issue was the lingering
presence of symptoms from a car crash three years prior, and the other issue was the
accusation by his stepdaughter of inappropriate touching. Dr. Lenihan did not review the
Petitioner’s medical records, but the Petitioner informed her that he had been diagnosed with
a traumatic brain injury. She observed,

               Well, he was under stress, which was most of the time I saw him.
        When he was trying to speak, the symptoms from the brain injury would
        emerge and he would have poor retrieval of memory, difficulty finding his
        words, difficulty finishing a thought. It was seemingly impossible for him to
        have organized his thoughts. And so he would kind of talk in circles and be
        kind of hard to follow.

In each session, the Petitioner was “consistently bewildered” that the victim had accused him
of these allegations.3

        On “more than one occasion,” Dr. Lenihan informed the Petitioner that she was
willing to speak with his attorneys because she anticipated that the Petitioner likely would
be hard to follow. Dr. Lenihan stated, “[a]s hard as he tried, [the Petitioner] could not figure
out why [A.R.] would say such things about him.” However, on cross-examination, she
admitted that the Petitioner had told her that he surmised the allegations stemmed from his
confrontation with A.R. about her sexual relations with an older boy. Dr. Lenihan never met
with trial counsel until after the Petitioner’s convictions. She met with the Petitioner at least
a dozen times after he was incarcerated, but she admitted that these meetings were not
technically therapy sessions.




        3
           At oral argument, counsel for the Petitioner contended that Dr. Lenihan’s basic conclusion was that
the character of the Petitioner’s brain injury made it impossible for him to maintain a story based upon lies.
However, a review of the transcript from the post-conviction hearing reveals that the State objected to this
particular testimony, and the trial court sustained the objection. The Petitioner has not raised the exclusion
of this testimony as error in this appeal. Therefore, we do not consider this opinion offered by Dr. Lenihan
in reaching our decision in this case.

                                                     -5-
        Trial counsel testified that he had known the Petitioner through a mutual acquaintance
several years before ever representing him. He was aware of the Petitioner’s injuries from
the car accident and represented him in negotiating a settlement award for the Petitioner. In
preparation for trial, trial counsel possessed A.R.’s deposition and testimony from the
juvenile proceeding. His defense theory revolved around the question of why A.R. did not
tell her father about the alleged incidents when she was with him during the summer of 2003,
and the possibility that she made up the allegations to get out from under the Petitioner’s
parental control. However, trial counsel believed that it was unfavorable to the Petitioner’s
case that A.R. did not discuss any of the allegations until questioned by her coach.

        Trial counsel stated that he had tried at least a dozen child sex abuse cases. His
procedure before any trial was to review with a fact witness exactly what questions would
be asked and hear what the particular witness’s testimony would be. He confirmed that, in
this case, he reviewed his direct examination with the Petitioner prior to trial.

        At trial, the Petitioner informed trial counsel that Klocko might have information that
would aid in his defense. Trial counsel spoke with Klocko in the hallway of the courthouse,
but he did not feel that the information she gave him would be helpful at trial. In fact, he
believed it might be hurtful to the defense to subject her to cross-examination. He stated that
Klocko never gave him the information to which she testified at the post-conviction hearing
regarding the victim, and had she given him such information, he would have called her to
testify at trial.

       Trial counsel testified that he has dealt with several traumatic brain injury cases, and
that proving these injuries required expert witnesses. He explained the difficulty in proving
a traumatic brain injury, given the fact that such an injury does not appear on tests such as
CAT scans or MRI’s. Therefore, trial counsel decided that in defending the Petitioner in
these charges he would not attempt to prove the Petitioner’s traumatic brain injury. He
believed that the jury might see it as a sideshow detracting from the real issues in the case
and that the sole benefit of such testimony would be to help rehabilitate the Petitioner from
an unfavorable cross-examination. In trial counsel’s opinion, the Petitioner was able to
convey himself adequately on the witness stand.

         In its written order, the post-conviction court credited trial counsel’s testimony that
he reviewed his direct examination with the Petitioner prior to trial. Additionally, the court
found that trial counsel “made a strategic choice in not calling the [sic] Dr. Lenihan to testify
at trial due to the reasons that diminished capacity would have been difficult to prove and the
additional consideration that the jury would perceive it as a defense tactic to divert from the
main issues.” Although the post-conviction court found that Klocko might have had
beneficial information, it credited trial counsel’s testimony that he never obtained such


                                               -6-
information. Further, the court found that trial counsel reviewed A.R.’s transcript and
deposition from the juvenile proceedings and utilized them at trial. The post-conviction court
determined that none of the allegations by the Petitioner rose to a level of ineffective
assistance of trial counsel. Moreover, according to the post-conviction court, even if trial
counsel’s actions were somehow deficient, the Petitioner suffered no prejudice. Thus, the
post-conviction court denied relief, and the Petitioner appealed.

       On appeal, the Petitioner’s grounds for ineffective assistance of counsel are that trial
counsel failed to interview either Dr. Lenihan or Klocko and failed to call them to testify at
the Petitioner’s trial.

                                             Analysis

                                       Standard of Review

        Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn “a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise.” Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.

                                Ineffective Assistance of Counsel

         The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.4 Both the United States Supreme Court and the Tennessee Supreme Court have


       4
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

                                                 -7-
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our Supreme Court has explained
that:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”


                                               -8-
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
“That is, the petitioner must establish that his counsel’s deficient performance was of such
a degree that it deprived him of a fair trial and called into question the reliability of the
outcome.” Pylant, 263 S.W.3d at 869 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies the
second prong of Strickland.” Id.

                   Trial Counsel’s Effectiveness Regarding Dr. Lenihan

       The Petitioner’s first contention is that trial counsel was deficient in not speaking with
Dr. Lenihan prior to trial and not calling her to testify regarding the Petitioner’s traumatic
brain injury. The State responds that trial counsel’s decision not to call Dr. Lenihan was
based on a well-reasoned trial strategy.

        As to the deficiency prong, the Petitioner testified at the post-conviction hearing that
he suffered from a traumatic brain injury. Due to this injury, he had difficulty conveying his
thoughts. Although he stated that trial counsel was aware of the injury, the Petitioner never
told trial counsel about this communication difficulty. Dr. Lenihan testified that she was
concerned that it might be hard for the Petitioner to communicate, so she offered to the
Petitioner more than once to speak with his attorneys. She stated that, despite the injury that
caused him to “talk in circles,” the Petitioner was “consistently bewildered” by A.R.’s
allegations. Trial counsel testified that he was aware of the Petitioner’s traumatic brain
injury, and he previously had proven such an injury in civil cases. However, he decided not
to attempt to prove the Petitioner’s injury because of the difficulty in doing so and the
concern that the jury might see it as a distraction from the main issues in the case. Trial
counsel also stated that he had ample contact with the Petitioner and never had an issue
communicating with the Petitioner.

       The post-conviction court found that trial counsel “made a strategic choice in not
calling the [sic] Dr. Lenihan to testify at trial due to the reasons that diminished capacity
would have been difficult to prove and the additional consideration that the jury would
perceive it as a defense tactic to divert from the main issues.” The Petitioner has failed to
show by clear and convincing evidence that such a decision by trial counsel was deficient.
Moreover, Dr. Lenihan’s testimony at the post-conviction proceeding never addressed the


                                               -9-
Petitioner’s actual trial testimony. As a result, her testimony cannot establish how the
Petitioner was prejudiced by the failure of trial counsel to call Dr. Lenihan as a witness.
Accordingly, the Petitioner is entitled to no relief on this issue.

                   Trial Counsel’s Effectiveness Regarding Ms. Klocko

         The Petitioner’s second assertion is that trial counsel failed to adequately interview
Klocko and was deficient by not calling her to testify at trial. Specifically, the Petitioner
relies on trial counsel’s acknowledgment that, had trial counsel known the information about
which Klocko testified at the post-conviction hearing, he would have called her as a witness
at trial. The State’s response is that trial counsel never knew of the information Klocko
possessed that might have been beneficial to the Petitioner’s defense, even though trial
counsel spoke with her during the trial.

       Turning to the deficiency prong, Klocko testified at the post-conviction hearing that
she heard A.R. tell her cousin, “when you get back to school, you tell your teachers your
parents molested you and you can do anything you want.” The trial court credited trial
counsel’s testimony that Klocko never told him about this conversation when they spoke
during the trial. Moreover, trial counsel testified that, based on what Klocko actually told
him at trial, he believed that calling Klocko as a witness potentially would be detrimental to
the Petitioner’s defense. Thus, we agree with the trial court that the Petitioner has failed to
show by clear and convincing evidence that trial counsel’s decision not to call Klocko at trial
was deficient. Therefore, we need not address whether trial counsel’s actions prejudiced the
Petitioner. Accordingly, we hold that the Petitioner is not entitled to relief on this issue.

                                         Conclusion

       For the foregoing reasons, the Petitioner has failed to establish that he is entitled to
post-conviction relief. Therefore, we affirm the judgment of the post-conviction court
denying relief.

                                           _________________________________
                                           JEFFREY S. BIVINS, JUDGE




                                             -10-
