## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, SALUSSOLIA, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant T HOMAS C. RICHARDS United States Army, Appellant

ARMY 20160394

Headquarters, Fort Drum S. Charles Neill, Military Judge Major Andrew W. Scot t, Acting Staff Judg e Advocate (pretrial) Colonel Peter R. Hayden, Staff Judge Advocate (post-trial)

For Appellant: Colone l 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. Ba nister, JA (on brief).

21 August 2017

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

---------------------------------

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 spec ifications of rape of a child, two specifications of ag gravated sexual assault of a child, and sexual abuse of a child, in violation of Artic les 92, 120, and 120b, Uniform Code of Military Justice, 10 U.S.C. § 892, 920, 920b ( 2006 and Supp. IV, 2012) [h ereinafter UCMJ]. The military judge senten ced appellant to a dishonorabl e discharge, confinement for thirty-two years, and re duction to the grade of E-1. Pu rsuant 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 on e assignment of error, whic h 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. 19 82), merits discussionRICHARDS—ARMY 20160394

2 but not relief: an a llegation of ineffective assistance of counsel agai nst one of his defense counsel for failing to investigate potentiall y exculpatory evidence and threatening appellant into ente ring a pretrial agreement. Th is court ordere d affidavits in response to appellant’s allegations of ineffective assistance of counse l. The government submitted affida vits by both defense counsel Captain (CPT) MC, CPT DC, and Major (MAJ) JK, the se nior defense counsel.

BACKGROUND

Appellant pleaded guilty to penetrating the vulva of CR, his step-daughter, with his penis and fingers, both on dive rs occasions. Some incidents occurred between 7 January 2008 and 11 January 2009, befo re CR was twelve years of age. Other incidents occurred between 19 August 2009 and 2 Septem ber 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 genita lia with his hand. Th is incident occurred between 1 April 2014 and 28 May 2014, befo re PP was twelve years of age. Lastly, appellant pleaded guilty to violating a lawful order.

During his colloquy with the military judge, ap pellant admitted his crimes,

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

that no one threaten ed 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 es tablish 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 conf lict between the affidavits of CPT MC and appellant regarding the former’s alle ged failure to investigat e 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 evidentia ry hearing is not warranted and that appellant has not met his burden of establis hing ineffective assi stance of counsel. Assuming appellant’s affidavit is factuall y adequate on its fa ce, “the appellate filings and the record as a whole ‘compellingly demonstr ate’ the improbability of those facts” and we may, therefore “discount those factual assert ions and decide theRICHARDS—ARMY 20160394

3 legal issue.” Id. Additionally, we are not convinced appellant has “rationally explain[ed]” the contradictio n between statements he ma de during hi s guilty plea

and his statements made unde r penalty of pe rjury here. Id.

Appellant claims CPT MC never contac ted witnesses and agencies who had information on CR and her biological mother . Captain MC, on th e other hand, states

he did contact witnesses iden tified 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 posse ssed information on CR. We conclude appellan t’s factual allegations are without merit because the record compellingly de monstrates their impr obability. 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 duri ng 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. Appella nt’s affidavit is irreconcilable with

statements he made at trial. He clearly verified an understand ing 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 acknowledge d satisfaction with his c ounsel’s advice. We “must

consider these admissions to determine wh ether a disputed issu e of fact has been

raised which re quires 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 specification s of which he was found guilty.

The record compellin gly demonstrates th e improbability of th e facts alleged in appellant’s affidavit to this court made u nder 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 representa tion of the appellant.

CONCLUSION

The findings of guilty and th e sentence are AFFIRMED.

Senior Judge CA MPANELLA and Judge FLEMING concur.RICHARDS—ARMY 20160394

4 FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: