## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES OF AMERICA, Appellee

v. Private E1 OSCAR RAMIREZ, JR. United States Army, Appellant

ARMY 20100888

Headquarters, Fort Bliss

David H. Roberts on, Military Judge

Colonel Francis P. Ki ng, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA (argued); Colonel Pa tricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Majo r Jacob D. Bashore, JA (on brief).

For Appellee: Captain Edwa rd J. Whitford, JA (argued); Lieutenant Colonel Amber J. Roach, JA; Major Catherine Brantley, JA; Captain Michael J. Frank, JA (on brief).

19 February 2013

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

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

Per Curiam:

On 1 and 2 November 2010, a panel of officer and enli sted members sitting as a general court-martial conv icted appellant, contrary to his plea, of aggravated sexual assault, in violatio n of Article 120, Uniform C ode of Militar y Justice, 10 U.S.C. § 920 (2006 & Supp. II 2008) [hereinafter UC MJ]. The panel sentenced appellant to a dishonorable discharge, conf inement for fifteen ye ars, and forfeiture of all pay and allowances. The conveni ng authority approved the sentence as adjudged.

We now review appellant’s case under Article 66, UCMJ. Appellant raises six assignments of error, one of which merits both discussi on and relief. Appellant alleges that he was denied his Sixth Amen dment right to effective assistance of counsel at his presentencing h earing where defense counsel, inter alia , failed to conduct a proper investigation and present v ital information to th e enlisted panel. We agree. Under the two–prong test to establis h ineffective assist ance of counsel, we find that the performance of appellant’s defense coun sel was deficient and thatRAMIREZ—ARMY 20100888

2 appellant suffered prejudic e as a result of the de ficient performance. United States v. Weathersby, 48 M.J. 668, 670 (Army Ct. Crim. App. 1998) (citing Strickland v. Washington , 466 U.S. 668 (1984); United States v. Scott, 24 M.J. 186 (C.M.A. 1987)).

Deficient Performance

In a sworn affidavit, appellant states that he gave his defense counsel, Captain (CPT) T.S., a list of people who appellant wanted to testify at his presentencing hearing in the event he was convicted. * This list incl uded officers and noncommissioned officers (NCOs) who were in appellant’s chai n of command, and all were stationed locally at Fort Bliss, Texas. Two office rs and one NCO, who appellant included on this list, have now submitted affidavits in support of appellant’s appeal, and they all state that they were ne ver contacted by appellant’s

defense counsel. Furt hermore, all three attest that had they been contacted, they would have testified positivel y about appellant’s duty perf ormance and rehabilitative potential.

In an affidavit responding to an order from this court, CP T T.S. acknowledged that appellant requested that several mi litary members be cont acted as potential presentencing witnesses, including some of the same individuals alleged by appellant. Captain T.S. fu rther stated that he asked his paralegal NCO to contact these individuals, but he does not recall if his NCO was ever successful in contacting them, no r does he recall if he made a ta ctical decision not to call those

individuals as witnesses.

It is readily apparent fr om our review of the affi davits from appellant, appellant’s defense c ounsel, and potential presentencing witnesses, that the trial

defense counsel never contacted the potential witnesses who provided affidavits, nor is it likely that he contacted any othe r service members as potential sentencing witnesses. Therefore, on the record before us, we find that defense counsel failed to appropriately investigate th is case for extenuation a nd mitigation ev idence. We further find, at the very least, the potent ial witnesses who provid ed affidavits would have provided good duty pe rformance evidence and positive testimony pertaining to appellant’s rehabilitati ve potential. As such, we conclude that CPT T.S.’s performance was deficient with respect to the presentenci ng portion of the trial. See

United States v. Boone , 49 M.J. 187, 196 & n.1 0 (C.A.A.F. 1998).

Prejudice

At the presentencing stage of the trial, the only defe nse witness, aside from appellant who provided an unsworn stat ement, was appellant’s wife. Neither

* Appellant states he gave this list to his trial defense counsel approximately two

weeks after his Article 32 he aring. The Article 32 hearin g took place on 20 July 2010, approximately fi fteen weeks prior to trial.RAMIREZ—ARMY 20100888

3 appellant nor his wife spoke about appellan t’s approximately six years of military

service or his rehab ilitative potential, which, by the accounts of the potential

witnesses who furnishe d affidavits, was very good. Although the defe nse admitted appellant’s commendatory military records, we do not conclude th at these were an adequate substitute for live character witnesses as they do not speak directly to appellant’s rehabi litative potential. Moreover, appe llant’s defense counsel failed to even mention appellant’ s military records during his very brief sentencing argument.

Under the totality of circum stances in this case, par ticularly after reviewing

the affidavits of th e potential witnesses from appe llant’s chain of command, we are convinced that appellant suffered prejudi ce from defense coun sel’s failure to properly investigate and pres ent potential evidence in ex tenuation and mitigation. We also find it likely that the absent testimony would have led to a lowe r sentence.
Because we do not have an adequate sentencing pictur e from the record, and the omission of potentia l evidence prejudiced appellant during the sent encing phase of his court-martial, we are unable to reassess the sentence in this case. See Boone , 49

M.J. at 198

– 99.

Conclusion

After consideration of the entire record of trial, ap pellant’s assi gnments of error, and the matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982 ), and the matters di scussed duri ng oral argument, we affirm the find ings of guilty, but set aside the sent ence. A rehearing on sentence may be ordered by the same or different convening authority, and appellant will be provided representation from a different defe nse counsel.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: