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Pamblanco v. State

Court of Criminal Appeals of Tennessee, Nashville

August 15, 2019

NICOLE PAMBLANCO
v.
STATE OF TENNESSEE

          Session May 14, 2019

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

         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

          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.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         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 ...


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