of Judgment: 11/12/2015
FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT HON. ANDREW
K. HOWORTH TRIAL JUDGE.
ATTORNEY FOR APPELLANT: JEFFERY KLECKNER (PRO SE).
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ALICIA MARIE AINSWORTH.
GRIFFIS, P.J., FAIR AND WILSON, JJ.
Jeffrey Kleckner was convicted on September 18, 2009, on one
count of touching a child for lustful purposes and three
counts of sexual battery. The Union County Circuit Court
sentenced him to fifteen years on the fondling charge and
life on the three counts of sexual battery. His conviction
was affirmed in Kleckner v. State, 109 So.3d 1072,
1095-96 (¶65) (Miss. Ct. App. 2012). This Court denied
rehearing, and the Mississippi Supreme Court later denied
On September 17, 2014, the supreme court granted
Kleckner's leave to file for post- conviction relief
(PCR) on the issue of his trial counsel's alleged
ineffectiveness for offering or failing to object to certain
exhibits. Kleckner timely submitted his PCR motion,
but the clerk failed to file the motion until April 2015. The
motion was denied on November 15, 2015.
Kleckner did not receive a copy of the November order. On
February 1, 2016, Kleckner sought a writ of mandamus from the
supreme court, seeking a ruling on his PCR motion. The
circuit judge ordered that Kleckner receive a copy of the
order. Kleckner filed a notice of appeal two months later,
stating he did not receive the order until March 21, 2016.
This Court found that Kleckner had established good cause for
delay and allowed him to proceed under Mississippi Rule of
Appellate Procedure 2(c).
A motion for PCR may be summarily dismissed "if it
plainly appears from the face of the motion, any annexed
exhibits and the prior proceedings in the case that the
movant is not entitled to any relief." Fluker v.
State, 170 So.3d 471, 473 (¶7) (Miss. 2015)
(quoting Miss. Code Ann. § 99-39-11(2) (Rev. 2007)).
To prove his counsel was ineffective, Kleckner must show (1)
his counsel's performance was deficient, and (2) the
deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). "Judicial
scrutiny of counsel's performance must be highly
deferential." Id. at 689. In this case that
scrutiny applies, by supreme court order, only to
counsel's performance in allowing two State exhibits to
be entered into evidence and in submitting four defense
exhibits, which were also entered into evidence. A strong but
rebuttable presumption exists that counsel's performance
was effective. Gilley v. State, 748 So.2d 123, 129
(¶20) (Miss. 1999). "[T]he defendant must overcome
the presumption that, under the circumstances, the challenged
action 'might be considered sound trial
strategy.'" Quinn v. State, 191 So.3d 1227,
1234 (¶27) (Miss. 2016) (quoting Stringer v.
State, 454 So.2d 468, 477 (Miss. 1984)). Second,
"the defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Gilley, 748 So.2d at 129 (¶20)
(quoting Strickland, 466 U.S. at 694). "If
either prong [of Strickland] is not met, the claim
fails." Havard v. State, 928 So.2d 771, 781
(¶8) (Miss. 2006).
In the record before this Court, the State makes much of the
fact that Kleckner has not provided Exhibits S-10, S-11, D-5,
D-6, D-7, or D-8 as part of the record. In his reply brief,
Kleckner claims his request for those exhibits was denied.
However, the record does contain a handwritten list of
exhibits, which includes brief descriptions. The original
record on direct appeal contains that document, a typed
version of the same, as well as copies of each of the
exhibits referred to in Kleckner's PCR motion. Exhibit
S-10 is "Arrest Warrants (4)" and S-11 is
"Warrant and Affidavit 68-2624." Exhibit D-5 is a
"UCSO Report"; Exhibit D-6 is a "Report from
Family Resources Center of Northeast Mississippi (The
Children Advocacy Center)"; Exhibit D-7 is a "Typed
Report (9-10-2008)"; and Exhibit D-8 is ...