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_______ _______ __________
No. ACM 39270

_______ _______ __________
UNITED STATES Appellee

v.

Barrian J. JAMISON Airman First Class (E

- 3 )

, U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United States Air Force Trial Judiciary

Decided 12 October 2018

_______ _______ __________ Military Judge: James R. Dorman

. Approved sentence: Dishonorable dis charge, confinement for one month

, forfeiture of all pay and allowances

, and reduction to E

- 1 . Upon release from confinement

, the forfeitures are reduced to $1066.00 pay for one
month

. Sentence adjudged 27 March 2017 by GCM convened at Francis E. Warren Air Force Base, Wyoming

. For A ppellant: Major Jarett F. Merk , USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel Nicole P. Wishart, USAF; Mary Ellen Payne, Esquire

. Before HARDING, HUYGEN, and POSCH

, Appellate Military Judges

. Senior Judge HARDING delivered the opinion of the c ourt, in which Judges HUYGEN and POSCH joined.

_______ _______ __________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

_______ _______ __________United States v. Jamison , No. ACM 39270

2 HARDING, Senior Judge:
A military judge sitting as a general court

- martial convicted Appell ant, consistent with his plea made pursuant to a pretrial agreement (PTA) , of one specification of sexual assault in violation of Article 120 , Uniform Code of Milita ry Justice (UCMJ), 10 U.S.C. § 920

. Specifically, Appellant was convicted of committing a sexual act upon another Airm a n by penetrating her vulva with his finger

, with the intent to gratify his sexual desires

, when he knew or reasonably should have known t hat she was asleep. The military judge sentenced Appellant to a dishonorable discharge, confinement for 12 months , forfeiture of all pay and allowances

, and reduction to the grade of E

- 1

. In accordance with the limitation of the PTA, t he convening authorit y approved only one month of confinement. He otherwise approved the sentence as adjudged. The convening authority also directed that

, upon Appellant’s release from confinement, the forfeitures would be reduced to $1,066.00 pay for one month.

A ppellant asse rts two issues on appeal: (1) that Appellant received ineffective assistance of counsel because his defense counsel failed to fully advise him of his plea options, the evidence against him

, his right to testify, and the meaning of registering as a sex offender 1 and (2) that there is a substantial basis to question whether Appellant’s plea was provident because the military judge failed to fulfill the responsibility per United States v. Riley , 72 M.J. 115 (C.A.A.F. 2013)

, to ensure Appellant understo od t hat

, as a result of hi s guilty plea , he would be required to register as a sex offender

. We find no prejudicial error and affirm.

I. B ACKGROUND

After Appellant and A1C AN were at a bar in Cheyenne, Wyoming, A1C AN was too drunk to drive and stayed at Appella nt’s home. Appellant let A1C AN have the bed a nd told her he preferred to sleep on a chair in the li ving room. After A1C AN fell asleep

, Appellant made his way into bed with her and unbuttoned her shirt and jeans while she slept . Appellant placed his hand down the front of A1C AN’s jeans and reach ed inside her underwear to penetrate her vulva with his finger. When A1C AN woke up , Appellant removed his hand and rolled away. N either said anything, and A1C AN quickly departed Appellant’s home.

In a s eries of text messages between Appellant and A1C AN, Appellant initially denied any thing sexual had happened. However

, a fter A1C AN confronted Appellant about his finger penetrating her vulva, Appellant apologized

1 Appellant filed the ineffective assistance of counsel claim pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982)

.United States v. Jamison , No. ACM 39270

3 and acknowledged what he did as the “bigge st [ mistake ] I think I ever made.” Later, when he was interview ed by a detective of the Cheyenne P olice Department
, Appellant initially denied the sexual assault but eventual ly confessed
that he committed a sexual act on A1C AN while she slept

.

II. D ISCUSSION

A. Effectiveness of Counsel
Appellant’s affidavit accompanying his brief to this court claims his trial defense counsel failed : (1) to apprise him of his choice to plead guilty or not guilty ; (2) to explai n the evidence against him or ask for his side of the story ; (3) to discuss whether he should testify; and (4 ) to advise him of the meaning of registering as a sex offender. Appellant contends these failures amounted to
in effective assistance of counsel. We disagree.

This court reviews a claim of ineffective assistance of counsel de novo. United States v. Gooch , 69 M.J. 353, 362 (C.A.A.F. 2011) (citation omitted)

. We
undertake a two

- part inquiry informed by the Supreme Court’s decision in Strickland v. Washington , 466 U.S. 668 (1984) : “ [ T ] o prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.” United States v. Green , 68 M.J. 360, 361

– 62 (C.A.A.F. 2010) (citing Strickland , 466 U.S. at 687 ; United States v. Mazza , 67 M.J. 470, 474 (C.A.A.F. 2009) ).

In the context of a guilty plea, the first part of the Strickland test “is nothing more than a restatement of the standard of attorney competence”

— whether cou nsel’s performance fell below a standard of objective reasonableness expected of all attorneys. Hill v. Lockhart , 474 U.S. 52, 56

– 58 (1985) (citations omitted) . The second prong focus es on whether the “ineffective performance affected the outcome of the pl ea process.” Id . at 59; see also Lafler v. Cooper , 566 U.S. 156, 163 (2012). It is not necessary to decide the issue of deficient performance when it is apparent that the alleged deficiency has not caused prejudice. Loving v. United States , 68 M.J. 1, 2 (C .A.A.F. 2009)

. “[T]o satisfy the ‘prejudice’ requirement, [Appellant] must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill

, 474 U.S. at 59 (footn ote omitted) . “ ‘ A reasonable probability is a probability sufficient to undermine confidence in the outcome. ’ That requires a ‘ substantial, ’ not just ‘ conceivable, ’ likelihood of a different result.” Cullen v. Pinholster , 563 U.S. 170, 189 (2011) (citation s omitted).
In this case, Appellant asserts that he was harmed or prejudiced by his counsel’s deficient performance. Appellant asserts he would have pleaded notUnited States v. Jamison , No. ACM 39270

4 guilty and litigated the sexual assault charge but for his counsel’s alleged shortcomings. To fully address these claims, we ordered both of Appellant’s trial defense counsel to provide declarations

. Their declarations , in addition to specifically rebutting each of Appellant ’ s claims, include d multipl e attachments wherein Appellant was advised in writing of his rights and choices and of the requirement for sex offender registration. Appellant placed his initials
next to each advised right and choice and

, at a minimum

, acknowledge d he had
read what was written on t he page. Importantly, Appellant also signed the following declaration regarding his rights and choices : “I have carefully read
the above statement and I am aware that the above decisions were mine alone to make. I have knowingly and voluntarily made the choices noted above.” In addition to the advisement and decision memoranda, we have also reviewed Appellant’s PTA and providence inquiry. W e find Appellant’s claims incredible.
However

, we need not decide the issue of deficient performance becaus e it is apparent to us that any alleged deficiency caused no prejudice to Appellant

. The Government’s case against Appellant, consisting of A1C AN’s account
and Appellant’s text message admissions and confession to the police, was overwhelming. Appellant’s trial defense counsel quite reasonably explored andsuccessfully obtained a favorable PTA for Appellant. Appellant faced the possibility, if convicted, of 30 years of confinement. The PTA limited the period of confinement to 30 days. As the military judge sentenced Appellant to 12 months of confinement, Appellant received a significant benefit from the PTA.
Even a ssuming that Appellant’s allegations that his trial defense counsel were deficient in their performance are true, we f ind no reasonable probability th at, but for counsel’s errors, Appellant would have pleaded not guilty and would have insisted on going to trial

. W e find no prejudice and thus no ineffective assistance of counsel.

B. Providen cy of Plea
Appellant asserts “there is a substantial question regarding whether his plea was [provident]” because the military judge failed to fulfill the responsibility to ensure that Appellant “made his plea decision knowingly, consciously, and intelligently with knowledge that sex offen der registration would be an

‘ automatic result ’ of his plea and a ‘severe penalty .’ ” We disagree.

“ A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion. ” United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008) (quoting United States v. Eberle , 44 M.J. 374, 375 (C.A.A.F. 1996) ) (additional citations omitted). An abuse of discretion occurs when there is “something in the record of trial, with regard to t he factual basis or the law

, that would raise
a substan tial question regarding the appellant’s guilty plea.” Id

. In United States v. Miller , where the appellant asserted he was unaware of sex offender registration requirements, t he Court of Appeals for the Armed Forces ( CAAF )United States v. Jamison , No. ACM 39270

5 found the military judge did not a buse his discretion in accepting the guilty plea

, but provided a “ prospective rule . . . to address the importance of trialdefense counsel explaining the sex offender registration requirement to an accused. ” 63 M.J. 452, 459 (C.A.A.F. 2006).
For all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing of Offenses R equiring Sex Offender Proc essing. Trial defense counsel should also state on the record of
the court

- martial that counsel has complied with this advice requirement. While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance th isCourt will carefully consider in evaluating allegations of ineffective assistance of counsel.

Id. (footnote omitted).

As the CAAF later explained in Riley , defense counsel must inform the accused of any sex offender registration requirements that are a consequence of a guilty plea, “ but it is the military judge who bears the ultimate burden of ensuring that the accused’s guilty plea is knowing and voluntary.” 72 M.J. at
1 2 2. In Riley

, the CAAF found “that the military judge abused his dis cretion
when he accepted [the appellant’s] guilty plea without questioning d efense counsel to ensure [the appellant’s] knowledge of the sex offender registration consequences of her guilty plea to kidnapping a minor .” Id.
In this case, both trial defense counsel and the m ilitary judge fulfilled their respective obligations to ensure Appellant knew the sex offender registration consequences of his guilty plea

. In accordance with Miller

, Appellant was informed of t he requirement for sex offender registration prior to pleading guilty. In preparation for trial, Appellant ’s trial defense counsel advise d Appellant in writing of sex offender registration requirements in the event Appellant was convicted of or plead ed guilty to a sex offense. Appellant acknowledged by his
si gnature that he had read and understood the rights and obligations covered
in the written advisement.
Prior to the acceptance of Appellant’s guilty plea, in accordance with Riley

, the military judge inquired as to whether Appellant had been advised by t ri al defense counsel with regard to sex offender registration requirements :

MJ [ Military Judge ] : Defense counsel, have you advised [A p pellant] prior to trial of the sex offender re porting registration requirements resulting from a finding of guilty to the Ch arge and Specification?

ADC [Trial Defense Counsel ] : Yes, Your Honor.United States v. Jamison , No. ACM 39270

6 MJ: Do [sic] have this documented in a document and did you
want that entere d into the appellate record?

ADC: Your Honor, we have it documented, but no we don't wa nt to put it in the appellate record. 2
Moments later, the military judge addressed Appellant to ensure Appellant, having been advised of the consequences of pleading guilty, still desired to plead guilty. After conferring with his trial defense counsel, Appellant informed th e military judge that he still wanted to plead guilty. The military judge subsequently found Appellant’s guilty plea pro vident and accepted it.
The issue of sex offender registration requirements did not come up again until the post

- trial processing of Ap pellant’s case. In the clemency request submitted by Appellant’s counsel, the convening authority was requested to

“ [ p ] lease consider that [Appellant] took responsibility for his actions knowing full well that the consequences would include both a dishonor able discharge
and sex offender registration .” (Emphasis added).
Having reviewed the record, we find nothing with regard to t he factual basis or the law that would raise a su bstantial question regarding A ppellant’s guilty plea . Nonetheless, Appellant invi tes this court to impose a strict obligation on a military judge before accepting a guilty plea to conduct a colloquy
with the accused regarding sex offender registration

— similar to inquir i es that ensure an accused understands the consequences of entering a stipulation of fact, the terms of a PTA, or , for a non

- United States citizen accused

, the potential for deportation. We decline the invitation. While such a colloquy would certainly buttress a conclusion that an accused’s guilty ple a was knowing and voluntary , we refuse to strictly require any such colloquy beyond what is compelled by Riley

. Instead

, we will continue to hold military judge s to their burden of ensuring that an accused’s guilty plea is knowing and voluntary

. The military judge did so in this case. Appellant’s guilty plea was provident

.

III. C ONCLUSION
The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).

2 A s a result of Appellant’s ineffective assistance of counsel claim

, trial defense counsel submitted responsive declarations and attach ed several written advisements which were subsequently attached to the record ; thus the record now contains a three

- page Miller advisement entitled “Sex Offender Registration Requirement” signed by Appellant.United States v. Jamison , No. ACM 39270

7 Accordingly, the findings and the sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court