## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, GALLAGHER, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Captain KATHRYN T. DEVONSHIRE United States Army, Appellant

ARMY 20110356

U.S. Army Fires Center of Excellence and Fort Sill Gregory A. Gross, Military Judge

Colonel Jonathan A. Kent , Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard D. Gorini, JA ; Captain Meghan M. Poirier, JA (on brief). Colonel Patricia A. Ham, JA; Li eutenant Colonel Imoge ne M. Jamison, JA; Major Richard D. Gorini, JA; Captain Ja mes F. Ingram, JA (on reply brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain Daniel D. Maurer, JA (on brief).

25 February 2013

---------------------------------- SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to he r pleas, of seven specifications of violatin g a lawful general order, four specifications of wro ngfully using a controlled subs tance, one specification of wrongfully possessing a cont rolled substance, and two sp ecifications of wrongfully distributing a controlled su bstance in violation of Arti cles 92 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 912a (2006) [hereina fter UCMJ]. The military judge sentenced appellant to a dismi ssal, to be confined for five years, and to forfeit all pay and allowances. Pursuant to a pretrial agreement, the convening authority (CA) approved only so much of th e sentence as provid ed for a dismissal, confinement for six months, and total forfeiture of all pay and allowances. This case is before us for review pu rsuant to Article 66, UCMJ.DEVONSHIRE— ARMY 20110356

2 In her assignment of error, 1 appellant alleges she was denied effective

assistance of counsel when her defense counsel failed to request deferment of adjudged and automatic forfeitures pursua nt to Article 57(a)(2), UCMJ. While ultimately leaving the issue of ineffective assistance of counsel unresolved, we find appellant has established “the requisite showing of possible prejudice” and therefore, consistent with appellant’s request, orde r a new review and action. United

States v. Fordyce , 69 M.J. 501, 502 (Arm y Ct. Crim. App. 2010).

FACTS

As part of the post-trial and appellate rights advisement process, appellant and

her detailed trial defense c ounsel, Captain (CPT) S, re viewed and completed a sixpage written form two days before trial (App. Ex. IV). This form serves to

memorialize that CPT S advise d appellant of her post-tri al and appellate rights. Pursuant to this form, appella nt indicated in writi ng a desire to re quest deferment of automatic and adjudged forfeitures (App. E x. IV at 4). Both appellant and CPT S signed this form (App. Ex. IV at 6). As reflected by the re cord and post-trial affidavits submitted by appe llant and CPT S, a request fo r deferment of forfeitures was not submitted to the convening author ity and the conveni ng authority did not approve a deferment of forfeitures.

Appellant and CPT S 2 have submitted post-trial affidavits (Def. App. Ex. A and Gov’t. App. Ex. 1, respectively) that address the issue of why a request for

deferment of forfeitu res was not submitted. Appellant, pursuant to her affidavit, wanted CPT S to submit a request for deferm ent on her behalf. Appellant cited to

her own financial hardsh ips as well as her continued financial s upport of he r parents to support her re asons for requesting deferm ent of forfeitures.

In his affidavit, CPT S stated he advi sed appellant, immedia tely following her court-martial, that deferral of forfeiture s was unlikely due to her “lack of DEERS dependents” and “the overall circumstances of her ca se based on [his] experience and informal discussions with government counsel.” Captain S further stated, in subsequent conversations discussing the preparation of her clemency matters, appellant did not mention defe rral of forfeiture s because her focu s was to achieve “an administrative discharge as opposed to the [a djudged] dismissal. ” Significantly,

1 APPELLANT WAS DENIED EFFECT IVE ASSISTANCE OF COUNSEL IN THE

POST-TRIAL PHASE OF HER COURT-MARTIAL WHEN TRIAL DEFENSE COUNSEL FAILED TO REQUEST DEFERRAL OF FORFEITURES ON

APPELLANT’S BEHALF.

2 Captain S was promoted to Major sometime after trial and signed his affidavit using his new rank. We will continue to refer to him as CPT S for clarity.DEVONSHIRE— ARMY 20110356

3 CPT S does not allege appellant explicitly stated she no longer desired to submit a request to defer forfeitures.

In the R.C.M. 1105 a nd 1106 matters, CPT S requested clemency on appellant’s behalf in th e form of disapp roving the adjudge d dismissal.

LAW and DISCUSSION

In evaluating ineffective assistance of counsel allegati ons, we apply the

standard se t forth in Strickland v. Washington , 466 U.S. 668, 68 7 (1984). This standard requires appellant to demonstrate: (1) “that hi s counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.” Id

.

Our ability to resolve this post-trial is sue is further affected by two factors. First, purs uant to United States v. Ginn , 47 M.J. 236, 243 (C.A .A.F. 1997), we are prohibited from “deciding disputed questions of fact pertaining to a post-trial claim, solely or in part on the basi s of conflicting a ffidavits submitted by the parties.” Second, we are required to grant relief in regards to po st-trial matters that involve a convening authority’s decision “if there is an error and the ap pellant makes some colorable showing of possible prejudice.” Fordyce , 69 M.J. at 504 (internal citations omitted.)

As reflected in their a ffidavits, CPT S and appellan t are in conflict as to whether appellant implicitly ag reed to forgo a request to defer forfeitures. Neither appellant nor CPT S alleges appellant ever explicitly agreed to withdraw her request to defer forfeitures. In applyi ng the principles set forth in Ginn , we are not only unable to simply disc ount appellant’s affida vit and decide the is sue without further proceedings, but we are also prevented from formally making a finding regarding

whether defense counsel’s performance was deficient without the benefit of a Dubay hearing. However, as our co urt has previously decided in similarly situated cases, 3 a Dubay hearing does not afford the best soluti on in resolving the issue before us.

In addressing the pr ejudice prong under Strickland , pursuant to Article 57(a)(2), UCMJ and R.C.M. 1101(2) and (3), appellant ’s counsel could have submitted a request to the convening author ity (CA) to defer au tomatic and adjudged forfeitures. Additionally, a CA’s deci sion to approve a requ est for forfeiture deferment is discretionary, United States v. Rosenthal , 62 M.J. 261, 263 (C.A.A.F 2005) and R.C.M. 11 01(3). As such, based on the possibility the CA might have deferred appellant’s forfei tures had such a request reached him, coupled with

3 United States v. Fordyce , 69 M.J. 501, 502 (Arm y Ct. Crim. App. 2010); United

States v. Villanueva , ARMY 20090967 (Army Ct. Cr im. App. 28 Mar. 2011); United

States v. Beckner , ARMY 20080605 (Army Ct. Crim. App. 7 May 2010).DEVONSHIRE— ARMY 20110356

4 appellant only needing to make a colorable showing of prejudice, we find appellant has established the requisite level of prejudice. See Fordyce , 69 M.J. at 503.

In the current case, we are convinced a DuBay hearing could no t put appellant in a better position than th e relief we provide, which happens to be the relief appellant seeks. There is also no need to further explore the issue of ineffective

assistance of counsel. Therefore, to protect the in terests of jus tice and promote judicial economy, we order a ne w review and action.

CONCLUSION

The convening author ity’s initial action, dated 30 August 2011, is set aside.

The record of trial is re turned to The J udge Advocate Gene ral for a new SJA

recommendation and a new action by the same or a diffe rent convening authority in accordance with Article 60, UCMJ. This remedy wi ll afford appellant the opportunity to submit a reques t for deferment of automatic and adjudg ed forfeitures.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: