                                                                                         08/15/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 May 14, 2019 Session

              NICOLE PAMBLANCO v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                    No. 4-13-01121      Jill Bartee Ayers, Judge
                     ___________________________________

                           No. M2018-01260-CCA-R3-PC
                       ___________________________________

The Petitioner, Nicole Pamblanco, appeals the Montgomery County Circuit Court’s
denial of her petition for post-conviction relief from her convictions of aggravated child
neglect, a Class A felony, and reckless homicide, a Class E felony, and effective sentence
of fifteen years. On appeal, the Petitioner contends that she received the ineffective
assistance of counsel because trial counsel failed to call a psychologist who had evaluated
her and prepared a report to testify on her behalf. Based upon the oral arguments, the
record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.

Charles S. Bloodworth (on appeal), Clarksville, Tennessee, and Michael J. Flanagan (at
trial), Nashville, Tennessee, and for the appellant, Nicole Pamblanco.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and
Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       This case relates to the death of the Petitioner’s seven-month-old daughter on
August 22, 2013. The Montgomery County Grand Jury indicted the Petitioner for one
count of aggravated child neglect and reckless homicide.
       The evidence at trial showed that the Petitioner put the victim into a bathtub and
began running a bath for the victim. State v. Nicole Pamblanco, No. M2015-01870-
CCA-R3-CD, 2016 WL 6958888, at *4 (Tenn. Crim. App. at Nashville, Nov. 29, 2016),
perm. app. denied, (Tenn. Apr. 12, 2017). The Petitioner heard a knock at the front door
and left the bathroom, with the water still running, to answer the door. Id. At least ten
minutes later, the Petitioner’s husband came into the house from mowing the lawn and
saw the Petitioner and a friend “‘just chatting away.’” Id. at *1. The Petitioner’s friend
had brought an alcoholic beverage with her, and the Petitioner was drinking the beverage.
Id. The Petitioner’s husband went into the bathroom and found the water overflowing the
tub and the lifeless victim floating face-down in the water. Id. Five days later, the victim
died after being removed from life support. Id. at *4.

       The Petitioner testified on her own behalf but did not present any other proof, and
the jury convicted her of aggravated child neglect, a Class A felony, and criminally
negligent homicide, a Class E felony, as a lesser-included offense of reckless homicide.
See id. The trial court held a sentencing hearing and ordered that the Petitioner serve
concurrent sentences of fifteen years and one year, respectively. Id.

       On direct appeal of her convictions to this court, the Petitioner claimed that the
evidence was insufficient to show that she knowingly committed aggravated child neglect
and that the trial court erroneously instructed prospective jurors during voir dire that her
convictions would merge if the jury found her guilty of both counts. Id. at *5, 7. This
court concluded that the evidence was sufficient and that the trial court erred in its
instruction but that the error was harmless. Id. at *10.

        The Petitioner filed a timely pro se petition for post-conviction relief, claiming, in
pertinent part, that she received the ineffective assistance of counsel because trial counsel
failed to call a psychologist, who had diagnosed her with attention deficit hyperactivity
disorder (ADHD), to testify on her behalf at trial. The post-conviction court appointed
counsel, and counsel did not file an amended petition.

       At the evidentiary hearing, trial counsel testified that he was retained to represent
the Petitioner and that the Petitioner was released on bond while awaiting trial. Trial
counsel met with her several times in his office, and they “went over” her version of the
events. The State made a fifteen-year plea offer to the Petitioner, but the Petitioner
turned it down. The defense counteroffered for the Petitioner to plead guilty to a Class B
felony in exchange for an eight-year sentence, but the State rejected the offer.

        Trial counsel testified that he did not think it was “good idea” for the Petitioner to
testify at trial because the Petitioner was remorseful but had “a flat affect.” Trial counsel

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and the Petitioner went “back and forth” on whether she would testify. The Petitioner’s
father insisted that she testify, and it was her decision to do so.

       Trial counsel testified that he did not remember if he had a mental health
professional examine the Petitioner before trial. However, he acknowledged that Dr.
James Hebda may have examined her and prepared a written report. At that point, post-
conviction counsel advised trial counsel that Dr. Hebda was subpoenaed to trial and
asked trial counsel why Dr. Hebda did not testify on the Petitioner’s behalf. Trial counsel
said he talked to Dr. Hebda on the telephone before trial and was “a little concerned
about him.” Trial counsel met with Dr. Hebda in person on the morning of trial and
decided that it was not in the Petitioner’s “best interest” for Dr. Hebda to testify. Trial
counsel explained,

              In 35-years of trying cases I think I’ve developed a good
              sense of how a witness will be and, with all due respect to
              him, he was flakey. He showed up in sandals, was kind of
              talking off the wall, and I just made a decision that I don’t
              want this guy up there, so. [Eccentric], I guess, might be a
              nice way of saying it.

Trial counsel said he did not remember whether Dr. Hebda was retained or was a court-
appointed expert.

       Trial counsel testified that the person who brought the alcoholic beverage to the
Petitioner’s house on the day of the victim’s death actually came to the house to buy
marijuana. Trial counsel did not want the jury to hear that the Petitioner left the victim in
the bathtub in order to conduct a drug transaction. Although the trial court ruled that the
evidence was inadmissible, trial counsel was concerned that the trial court would
reconsider its ruling if Dr. Hebda testified.

       On cross-examination, trial counsel testified that he became licensed to practice
law in 1981, that he practiced criminal law exclusively, and that he had handled hundreds
of jury trials. Trial counsel thought the Petitioner was prepared for trial. He said that the
proof against her was not overwhelming but that she was “just a bad witness.”

       Trial counsel testified that the Petitioner’s defense was that the victim’s death was
an accident and that the Petitioner had been “punished enough.” Although the trial court
ruled that the drug transaction was inadmissible, trial counsel was very concerned about
“opening the door” to the transaction. He said that the Petitioner must have known Dr.
Hebda and suggested that Dr. Hebda testify on her behalf because trial counsel would not
have “taken that approach.” He explained as follows:
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              I think if I had come in here and put on expert testimony
              about ADHD, then [the prosecutor] is going to take the
              position that I’ve opened up the door and that your ADHD
              didn’t -- you’re able to do a drug transaction, weren’t you?
              And that’s why I don’t think I would have ever gone there.

       Assistant District Attorney General Kimberly Lund testified that she prosecuted
the Petitioner’s case. Trial counsel tried “pretty hard” to get General Lund “to settle for
something less than aggravated child [neglect],” but she refused. The Petitioner could
have pled guilty to aggravated child neglect, but trial counsel never made that offer to the
State. The parties did not come to an agreement, and the case went to trial.

        The Petitioner testified that trial counsel did not tell her to have a mental
evaluation. He told her, though, that it would be “good” for her to receive counseling at
Centerstone. The Petitioner went to Centerstone regularly to receive counseling for the
victim’s death, and Centerstone “kind of referred” her to Dr. Hebda. Dr. Hebda
evaluated the Petitioner and prepared a report, and trial counsel knew about Dr. Hebda’s
evaluation and findings. Trial counsel intended to call Dr. Hebda to testify as an expert
witness at trial. Trial counsel did not talk to the Petitioner about his decision not to have
Dr. Hebda testify, and the Petitioner did not authorize trial counsel’s “dropping” Dr.
Hebda as a witness. Although the Petitioner did not see Dr. Hebda on the morning of
trial, she did not notice anything unusual about him when she met with him for
counseling.

        The Petitioner testified that she put the victim into the bathtub and became
distracted by her friend’s arrival. She acknowledged that the victim’s death was a
“terrible accident.” She also acknowledged that according to Dr. Hebda’s report, he
diagnosed her with executive function disorder, not attention deficit disorder. In his
report, Dr. Hebda stated that the Petitioner had “a high level of distraction” and could do
only one task at a time, not two tasks at a time. He concluded that she became distracted,
that she lost track of the amount of time the victim was in the bathtub, and that she did
not deliberately drown the victim. After the trial, the Petitioner asked trial counsel why
he did not call Dr. Hebda as a witness. Trial counsel said he did not think Dr. Hebda was
“reliable.”

        In a written order, the post-conviction court denied the petition for post-conviction
relief. The post-conviction court accredited trial counsel’s testimony that he decided not
to call Dr. Hebda as a witness because he did not think Dr. Hebda was going to be a good
witness for the Petitioner and because Dr. Hebda was “‘flakey, wore sandals, and talked
off the wall.’” The court also accredited trial counsel’s claim that he was concerned Dr.
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Hebda’s testimony would open the door to the Petitioner’s leaving the victim in the
bathtub to conduct a drug transaction. Regarding Dr. Hebda’s written report, the post-
conviction court stated as follows:

                     The Psychological Evaluation of Dr. Hebda indicates
              an evaluation date, DOE, of 1-19-2015. However, the third
              page of the report has a date of 3-12-15. The date of the
              report is questionable. Further, the report focused on her then
              current mood disorder and reunification efforts with her
              children. Nothing in the report is relevant to her sanity,
              competency or diminished capacity at the time the offense
              was committed. Dr. Hebda’s report that the petitioner likely
              got distracted when she left her child alone in the bathtub
              corroborates the petitioner’s testimony at trial that she got
              distracted. There is nothing exculpatory in the report that
              would have likely changed the outcome at trial. The
              petitioner’s claim that [trial counsel’s] decision not to call Dr.
              Hebda as a witness amounted to the ineffective assistance of
              counsel is not supported by the testimony.

Accordingly, the post-conviction court denied the petition for post-conviction relief.

                                        II. Analysis

       On appeal, the Petitioner contends that trial counsel’s decision not to call Dr.
Hebda to testify “was clearly NOT a well thought out, structured, trial strategy” and that
trial counsel should have asked for a continuance in order for Dr. Hebda to dress
appropriately and should have consulted with the Petitioner before “abandoning” Dr.
Hebda’s testimony. The Petitioner acknowledges that Dr. Hebda did not testify at the
evidentiary hearing but contends that Dr. Hebda’s report shows “exactly” what his
testimony would have been at trial. She also contends that the post-conviction court
erred by concluding that Dr. Hebda’s report was irrelevant to her mental state at the time
of the offense because the crime of aggravated child neglect was not complete until the
victim suffered serious bodily injury. Therefore, the State was required to show that the
Petitioner acted knowingly during the interval of time before the rising water caused
serious bodily injury to the victim. The State argues that trial counsel’s decision not to
call Dr. Hebda to testify was professionally reasonable and, therefore, that the post-
conviction court properly denied the petition for post-conviction relief. We agree with
the State.



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        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
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. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Further,

              [b]ecause a petitioner must establish both prongs of the test, a
              failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance
              claim. Indeed, a court need not address the components in any
              particular order or even address both if the [petitioner] makes
              an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).



                                           -6-
        Here, the post-conviction court accredited trial counsel’s testimony that he did not
want Dr. Hebda to testify because Dr. Hebda was dressed inappropriately and seemed
“flakey” and “eccentric” on the morning of trial. The court also accredited trial counsel’s
assertion that he was worried Dr. Hebda’s testimony would open the door to evidence
that the Petitioner left the victim in the bathtub in order to conduct a drug transaction.
This court has stated that “[w]hen reviewing trial counsel’s actions, this court should not
use the benefit of hindsight to second-guess trial strategy and criticize counsel’s tactics.”
Irick v. State, 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998).

       As to the Petitioner’s claim that Dr. Hebda’s report was relevant to her mental
state during the interval of time in which she left the victim unattended until the victim
suffered serious bodily injury, aggravated child neglect is a continuing course of conduct
“beginning with the first act or omission that causes adverse effects to a child’s health or
welfare.” State v. Adams, 24 S.W.3d 289, 296 (Tenn. 2000). Moreover, the offense
“continues until the person responsible for the neglect takes reasonable steps to remedy
the adverse effects to the child’s health and welfare caused by the neglect.” Id.

       The Petitioner has included the trial transcript in the appellate record. During
closing arguments, the State contended that the aggravated child neglect in this case
began when the Petitioner walked out of the bathroom to answer the door, knowing that
she was leaving a seven-month-old infant in a bathtub with the water running. The
Petitioner acknowledges that she knowingly neglected the victim when she left the
bathroom but appears to argue that the post-conviction court failed to recognize the
importance of evidence regarding her mental state after she left the bathroom. However,
the fact that the Petitioner became distracted and forgot the victim was in the tub did not
stop the neglect. “Neglect simply does not lend itself to division into segments of
discrete acts each having various points of termination.” Id. Accordingly, we agree with
the post-conviction court that Dr. Hebda’s report, in which he concluded that “[g]iven
Ms. Pamblanco’s high level of distraction, deficits in divided attention, processing speed
and memory, it is more likely than not that she became distracted and lost track of the
amount of time that passed when [the victim] was in the tub,” would not have changed
the outcome of this case. Therefore, the post-conviction court properly denied the
petition for post-conviction relief.

                                     III. Conclusion

     Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the post-conviction court.

                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE
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