UNITED STATES ARMY COURT 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. Robertson, Military Judge 

Colonel Francis P. King, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA (argued); Colonel Patricia A. Ham, JA; 

Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA (on brief). 

For Appellee: Captain Edward J. Whitford, JA (argued); Lieutenant Colonel Amber 

J. Roach, JA; Major Catherine Brantley, JA; Captain Michael J. Frank, JA (on brief). 

19 February 2013 

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SUMMARY DISPOSITION 

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Per Curiam: 

On 1 and 2 November 2010, a panel of officer and enlisted members sitting as 

a general court-martial convicted appellant, contrary to his plea, of aggravated 

sexual assault, in violation of Article 120, Uniform Code of Military Justice, 10 

U.S.C. § 920 (2006 & Supp. II 2008) [hereinafter UCMJ]. The panel sentenced 

appellant to a dishonorable discharge, confinement for fifteen years, and forfeiture 

of all pay and allowances. The convening 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 discussion and relief. Appellant 

alleges that he was denied his Sixth Amendment right to effective assistance of 

counsel at his presentencing hearing where defense counsel, inter alia, failed to 

conduct a proper investigation and present vital information to the enlisted panel. 

We agree. Under the two–prong test to establish ineffective assistance of counsel, 

we find that the performance of appellant’s defense counsel was deficient and that 
RAMIREZ—ARMY 20100888 

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appellant suffered prejudice as a result of the deficient 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 included officers and 

noncommissioned officers (NCOs) who were in appellant’s chain of command, and 

all were stationed locally at Fort Bliss, Texas. Two officers 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 never contacted by appellant’s 

defense counsel. Furthermore, all three attest that had they been contacted, they 

would have testified positively about appellant’s duty performance and rehabilitative 

potential. 

In an affidavit responding to an order from this court, CPT T.S. acknowledged 

that appellant requested that several military members be contacted as potential 

presentencing witnesses, including some of the same individuals alleged by 

appellant. Captain T.S. further 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, nor does he recall if he made a tactical decision not to call those 

individuals as witnesses. 

It is readily apparent from our review of the affidavits from appellant, 

appellant’s defense counsel, 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 other service members as potential sentencing 

witnesses. Therefore, on the record before us, we find that defense counsel failed to 

appropriately investigate this case for extenuation and mitigation evidence. We 

further find, at the very least, the potential witnesses who provided affidavits would 

have provided good duty performance evidence and positive testimony pertaining to 

appellant’s rehabilitative potential. As such, we conclude that CPT T.S.’s 

performance was deficient with respect to the presentencing portion of the trial. See

United States v. Boone, 49 M.J. 187, 196 & n.10 (C.A.A.F. 1998). 

Prejudice 

At the presentencing stage of the trial, the only defense witness, aside from 

appellant who provided an unsworn statement, was appellant’s wife. Neither 

 

*

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

weeks after his Article 32 hearing. The Article 32 hearing took place on 20 July 

2010, approximately fifteen weeks prior to trial. 
RAMIREZ—ARMY 20100888 

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appellant nor his wife spoke about appellant’s approximately six years of military 

service or his rehabilitative potential, which, by the accounts of the potential 

witnesses who furnished affidavits, was very good. Although the defense admitted 

appellant’s commendatory military records, we do not conclude that these were an 

adequate substitute for live character witnesses as they do not speak directly to 

appellant’s rehabilitative potential. Moreover, appellant’s defense counsel failed to 

even mention appellant’s military records during his very brief sentencing argument. 

Under the totality of circumstances in this case, particularly after reviewing 

the affidavits of the potential witnesses from appellant’s chain of command, we are 

convinced that appellant suffered prejudice from defense counsel’s failure to 

properly investigate and present potential evidence in extenuation and mitigation. 

We also find it likely that the absent testimony would have led to a lower sentence. 

Because we do not have an adequate sentencing picture from the record, and the 

omission of potential evidence prejudiced appellant during the sentencing 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, appellant’s assignments 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 discussed during oral 

argument, we affirm the findings of guilty, but set aside the sentence. A rehearing 

on sentence may be ordered by the same or different convening authority, and 

appellant will be provided representation from a different defense counsel. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: