UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, SALUSSOLIA, and FLEMING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant THOMAS C. RICHARDS 

United States Army, Appellant 

ARMY 20160394 

Headquarters, Fort Drum 

S. Charles Neill, Military Judge 

Major Andrew W. Scott, Acting Staff Judge Advocate (pretrial) 

Colonel Peter R. Hayden, Staff Judge Advocate (post-trial) 

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; 

Captain Matthew L. Jalandoni, JA (on brief). 

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, 

JA; Captain Joshua B. Banister, JA (on brief). 

21 August 2017 

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SUMMARY DISPOSITION 

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SALUSSOLIA, Judge: 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of failing to obey a lawful order, two specifications of rape of a 

child, two specifications of aggravated sexual assault of a child, and sexual abuse of 

a child, in violation of Articles 92, 120, and 120b, Uniform Code of Military Justice, 

10 U.S.C. § 892, 920, 920b (2006 and Supp. IV, 2012) [hereinafter UCMJ]. The 

military judge sentenced appellant to a dishonorable discharge, confinement for 

thirty-two years, and reduction to the grade of E-1. Pursuant to a pretrial agreement, 

the convening authority approved only so much of the adjudged sentence as provided 

for a dishonorable discharge, confinement for eighteen years, and reduction to the 

grade of E-1. 

 Appellant’s case is now pending review before this court pursuant to Article 

66, UMCJ. Appellant raises one assignment of error, which merits neither discussion 

nor relief. Additionally, we find that one matter raised personally by appellant, 

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), merits discussion 
RICHARDS—ARMY 20160394 

2

but not relief: an allegation of ineffective assistance of counsel against one of his 

defense counsel for failing to investigate potentially exculpatory evidence and 

threatening appellant into entering a pretrial agreement. This court ordered affidavits 

in response to appellant’s allegations of ineffective assistance of counsel. The 

government submitted affidavits by both defense counsel Captain (CPT) MC, CPT 

DC, and Major (MAJ) JK, the senior defense counsel. 

BACKGROUND 

Appellant pleaded guilty to penetrating the vulva of CR, his step-daughter, 

with his penis and fingers, both on divers occasions. Some incidents occurred 

between 7 January 2008 and 11 January 2009, before CR was twelve years of age. 

Other incidents occurred between 19 August 2009 and 2 September 2009, after CR 

had attained twelve years of age, but had not attained the age of sixteen. Appellant 

also pleaded guilty to touching PP’s genitalia with his hand. This incident occurred 

between 1 April 2014 and 28 May 2014, before PP was twelve years of age. Lastly, 

appellant pleaded guilty to violating a lawful order. 

During his colloquy with the military judge, appellant admitted his crimes, 

stated he was satisfied with the representation of CPT MC and CPT DC, and agreed 

that no one threatened or tried in any way to force him to plead guilty. 

LAW AND DISCUSSION

The Sixth Amendment guarantees an accused the right to the effective 

assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011) 

(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). To establish that 

his counsel was ineffective, appellant must satisfy the two-part test, “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 v. Washington, 466 U.S. 668, 687 (1984)). We review both prongs of the 

Strickland test de novo. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009) 

(citing United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001) and United 

States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997)). 

In this case, there is conflict between the affidavits of CPT MC and appellant 

regarding the former’s alleged failure to investigate potentially exculpatory 

evidence. Considering this conflict, we look to whether a post-trial evidentiary 

hearing is required as a threshold matter. United States v. Ginn, 47 M.J. 236, 248 

(C.A.A.F. 1997). We conclude an evidentiary hearing is not warranted and that 

appellant has not met his burden of establishing ineffective assistance of counsel. 

Assuming appellant’s affidavit is factually adequate on its face, “the appellate 

filings and the record as a whole ‘compellingly demonstrate’ the improbability of 

those facts” and we may, therefore “discount those factual assertions and decide the 
RICHARDS—ARMY 20160394 

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legal issue.” Id. Additionally, we are not convinced appellant has “rationally 

explain[ed]” the contradiction between statements he made during his guilty plea 

and his statements made under penalty of perjury here. Id.

Appellant claims CPT MC never contacted witnesses and agencies who had 

information on CR and her biological mother. Captain MC, on the other hand, states 

he did contact witnesses identified by appellant and that although appellant never 

provided him with the names of specific agencies, he made reasonable search efforts 

of agencies near Fort Drum, New York that might have possessed information on 

CR. We conclude appellant’s factual allegations are without merit because the 

record compellingly demonstrates their improbability. The record of trial directly 

contradicts the allegation that CPT MC did not contact potential witnesses. One 

witness who appellant claims was never contacted, actually provided a statement in 

support of the appellant during the pre-sentencing portion of the trial. Moreover, 

appellant’s statements at trial were unequivocal regarding his satisfaction with his 

defense counsel. 

Appellant also claims CPT MC threatened appellant into entering a pretrial 

agreement, which CPT MC denies. Appellant’s affidavit is irreconcilable with 

statements he made at trial. He clearly verified an understanding of his legal right 

to plead not guilty, provided a factual predicate for his guilt, acknowledged that he 

voluntarily entered into a pretrial agreement, indicated he did not wish to withdraw 

from the pretrial agreement, and agreed he was not threatened or coerced into 

pleading guilty and acknowledged satisfaction with his counsel’s advice. We “must 

consider these admissions to determine whether a disputed issue of fact has been 

raised which requires that a DuBay hearing be ordered.” Ginn, 47 M.J. at 244. 

There was no indication appellant was either threatened or otherwise forced to plead 

guilty to the charges and specifications of which he was found guilty. 

The record compellingly demonstrates the improbability of the facts alleged in 

appellant’s affidavit to this court made under penalty of perjury. Accordingly, we 

are convinced appellant has not carried his burden on the first prong of Strickland, 

and we do not find his defense counsel were ineffective in their representation of the 

appellant. 

CONCLUSION 

The findings of guilty and the sentence are AFFIRMED. 

 Senior Judge CAMPANELLA and Judge FLEMING concur. 
RICHARDS—ARMY 20160394 

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FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: