## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before YOB, KRAUSS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class ROBERT W. MEDEIROS United States Army, Appellant

ARMY 20081092

Headquarters, National Trai ning Center and Fort Irwin Michael J. Hargis, Military Judge Lieutenant Colonel F. Dean Raab, Staff Judge Advoca te (pretrial and recommendation) Major Robert A. Vedra, Acting Staff Judge Advocate (addendum) Major Scott A. Dirocco, Ac ting Staff Judge Advocate (new recommendation and addendum I)

Lieutenant Colonel Gail A. Curley, Staff Judge Advoca te (new recommendation and addendum II)

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain Kristin McGrory, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues, JA (on brief).

17 January 2013

--------------------------------------------------------------- MEMORANDUM OPINION ON FURTHER REVIEW

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to hi s pleas, of assault co nsummated by battery (t wo specifications), adultery, and communica ting a threat, in vi olation of Articles 12 8, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928, 934 (2006) [hereinafter UCMJ]. At the same court-martial, the military judge co nvicted appellant, contrary to his pleas, of attempted kidnapping, maim ing, forcible sodomy, assa ult consummate d by battery (five specifications), and aggr avated assault, in violatio n of Articles 80, 124, 125,MEDEIROS—ARMY 20081092

2 and 128, UCMJ. The conveni ng authority approved the adjudged sentence of a dishonorable discharge, confinement for thir ty-two years, and re duction to the grade

of E-1.

On 7 June 2011, this cour t set aside the convening au thority’s initial action

and returned the record of trial to Th e Judge Advocate Genera l for remand to the same or a different convening author ity for a new staff judge advocate’s recommendation (SJAR) and action. United States v. Medeiros , ARMY 20081092, 2011 WL 2377848 (Army Ct. Crim. App. 7 June 2011) (summ. disp.).

Following the new SJAR and action, this court affirmed the findings of guilty

and the sentence. United States v. Medeiros , ARMY 20081092, 2012 WL 203419 (Army Ct. Crim. App. 20 Jan. 2012) (summ. disp.). However, our superior court “conclude[d] that [a]ppellant was denied his Sixth Amendm ent right to conflict-free counsel in his post-tri al representation.” United States v. Medeiros , 71 M.J. 316 (C.A.A.F. 2012) (summ. disp.) . Our superior court then reversed ou r decision and set aside the convening authority’s second action. Id . The record of trial was returned to The Judge A dvocate General of the Ar my for submission to an appropriate convening authority for a new SJAR and action. Id

.

This third action has been completed and the record is now before us for

further review under Article 66, UCMJ. Appellant now rais es a single assignment of error and alleges, for the first time on appe al, that he received in effective assistance

of counsel duri ng the pretrial phas e of his court-martial. Ho wever, we find that the record as a whole compellingly demonstrates the improbability of the facts contained in appellant’s affidavit. As such, appellant’s claim lack s merit and we will affirm the findings and se ntence in our decr etal paragraph.

BACKGROUND

A. Appellan t’s Affidavit

Appellant submitted an affi davit in support of his claim that he received

ineffective assistance of counse l during the pretrial stage of his court-martial. In this affidavit, ap pellant admitted th at his civilian defense counsel informed him that “the government would support an offer to plead guilty in exchange for a maximum of fifteen years confinement. ” Appellant was “very interested” in this potential offer to plead guilty becaus e an Army Criminal Investigative Command (CID) agent had previously told appell ant he “would be facing a minimum of thirty years confinement for [h is] offenses.”

Nevertheless, appellant cl aims that his “c ivilian defense counsel told [him] that [he] would be ‘stupid’ to plead guilty because ther e was no doubt we would win the case.” Appellant further swore that his civilian defe nse counsel “even said thisMEDEIROS—ARMY 20081092

3 would be a ‘slam dunk’ case and he couldn’t lose.” Appellant al so stated his

civilian defense counsel inform ed him that he “would no t be found guilty and that [he] would not serve any confinement.”

Ultimately, appellant rejected the offer to plead guilty and claime d that “[t]he only reason [he] did not subm it the offer to pl ead guilty is because [his] civilian defense counsel told [him] that [he] would not lose and th at [he] would not go to jail.” Appellant concludes in his affida vit that had his civilian defense counsel properly advised him about the offer to pl ead guilty and recomme nded to accept the offer, appellant would have done so be cause his “primary go al going into [his] court-martial was to avoid a lengthy jail sentence.”

B. Appellant’s Gu ilty Plea Inquiry

At his court-martial, appellant pleaded gu ilty without the bene fit of a pretrial agreement to Specifications 1 and 6 of Charge V (assaul t consummated by battery) and Specifications 1 (adultery) and 3 (co mmunicating a threat) of Charge VI. The military judge accepted appe llant’s guilty pleas to these offenses after conducting a providence inquiry. Appell ant also initially pl eaded guilty to Ch arge III and its Specification (maiming) and to Specifi cations 5 and 8 of Charge V (assaults consummated by battery).

During the providence inquiry into the maiming offense, the following exchange took place among the parties:

MJ: Okay. What injuries were you intending to inflict?

[Accused conferring with defense counsel.]

Acc: I just wa nted to hurt her, I just wanted to do what Brian said. I just wanted to beat her up a little bit, just

make it so Br ian wouldn’t do anything to us. So, that’s

all.

. . .

MJ: Defense, . . . [d]o you be lieve that a defense of lack of mental responsibility exists in this case?

DC: I wish that it did, Yo ur Honor. It does not!

MJ: Even though your client is telling me that at the time he was hearing voices from a pe rson who he be lieved to be real, who he now believes to be imaginary?MEDEIROS—ARMY 20081092

4 DC: There are multiple rend itions over time, Your Honor.

MJ: Well, I’m most concerne d with the rendition I get here today.

DC: I understand th at, and this is no t the anticipated rendition, but I can tell you, Your Honor, as an officer of the court, this has been explored in many, many ways.

Later on during the providence i nquiry into the maim ing offense, the following exchange took place between the military judge and appellant:

MJ: Did you have any lawful justification or excuse for engaging in th ose actions of throwing [LC] to the ground and kicking her?

Acc: Well, just—just Brian. I figured that if I didn’t do it then Brian would go after our families, and would—would

kill them.

MJ: Okay, so there is a possi bility that you might have had a legal justification or excuse. We are going to talk about the defense of duress in just a moment.

After the military judge explained the defense of duress to appellant, the following exchange took place among the parties:

MJ: . . . Now you told me that you though t that Brian

would come and do something worse to you, is that

correct?

Acc: He would—he would—I knew for a fact that he would kill my grandma, and he would go after [LC’s] family.

MJ: Did you believe at that point that he was going to do that immediately?

Acc: Yes. He said he had someone—he had someone parked outside my grandma’s house, sitting outside in

front of her house in a car.MEDEIROS—ARMY 20081092

5 MJ: So you t hought that if you didn’ t do it, you didn’t do it right then—

Acc: That if I didn’t take care of [LC,] then—then—then she would—then people would die.

MJ: Immediately?

Acc: Yeah, yes, sir.

MJ: Who did you think would die immediately?

Acc: My grandma, uh, [LC’s] family, uh—we—we—I didn’t know if [LC’s] family would die, I just knew that they would get hurt. Her mom got threatened, and—and

that’s it.

MJ: Counsel, I have some serious reservations.

DC: Only equaled to by mine.

MJ: I have no doubt.

DC: I don’t even know what to say to you ex cept I need a

recess.

. . .

MJ: Okay. The court is in recess.

After the recess, appellant withdrew his guilty plea to Charge III and its Specification. A similar issu e arose during the providence inquiry in to Specification 8 of Charge V (assault cons ummated by battery). Appellant admitted to placing LC’s hand over a lit gas stov e top and burning it . However, this was again done at the behest of “Brian,” as it occurr ed right before ap pellant maimed LC:

MJ: So you got a message from Brian and then you held

her hand over the stove?

Acc: Yeah, I—I—I hi t her in the face, first with my open hand, then I grabbed her by he r arm, brought her into the kitchen, uh-mmm, turn ed on the stove, told her ‘this is—

this is what Brian said he would do to you if you don’t listen’—‘if we don’t listen,’ and I held her hand over it,MEDEIROS—ARMY 20081092

6 and then when I saw that the flame touched it, I pulled her

hand back. And then I brought her back out into the living room area, and I thre w her on the floor, and that is when I—when the maiming happened.

MJ: What specifically did Bria n tell you to do on the 5th of February 2008?

Acc: Take care of her.

MJ: Alright.

Acc: He was afraid that—t hat she was going to go home,

because she was—she was talk ing about goin g home. He was afraid she was going to go home, and—and afraid that I had told her about, uh-mmm, all the different things, and

stuff like that.

MJ: And you to ld me that you did th at because Brian told you that there was someone parked outs ide of your grandmother’s house—

Acc: Yes, sir.

MJ: And if you didn’t do what Brian told you to do, someone was goin g to kill your grandmother?

Acc: Someone was going to kill my grandma and—

MJ: Right then?

Acc: And they were going to —going to hurt her family.

MJ: Right then?

Acc: Yes.

. . .

MJ: Counsel, we have the same problem with Specification 8 as we do with the maiming charge.

DC: I couldn’t agree with y ou more, we will withdraw the guilty plea.MEDEIROS—ARMY 20081092

7 Likewise, the military judge also rejected appellan t’s guilty plea to Specification 5 of Charge V (assault consummated by battery). During the providence inquiry, appellan t stated that he took Am bien on 2 January 2008 and “tripped out.” Afte r taking Ambien, appell ant became violent and shocked LC with a taser. Appellant did no t remember shocking LC, bu t LC and appellant’s wife informed him the next day that he used a taser against LC, ap pellant’s wife, and himself. After appellant gues sed that he was not in control of himsel f at the time he shocked LC, the militar y judge found him improvident to Specification 5 of Charge

V.

C. Civilian Defense C ounsel’s Findings Argument

After a trial on the merits of the remaining charges and specifications, appellant’s civilian defense counsel only focused on certain offenses during his findings argument: “I will simply say that with respect to the following charges and specifications, the elements have not been met.” First, civili an defense counsel argued that appellant did not attempt to kidnap LC be cause there was a lack of evidence as to appellant’s specific intent to kidnap.

Second, civilian defense counsel argued th at appellant was not guilty of Specification 2 of Charge VI (kidnapping) on a separate occasi on at Fort Irwin

because LC “had ever y opportunity to extr icate herself from the situation, if she so chose, she chose not to.” Civilian defense counsel pointed out that LC talked to her father during the applicable time period and that there was no evidence appellant

advised LC to lie to her fa ther and say that she was in San Diego. Thus, civilian

defense counsel ar gued “[t]here was no carrying awa y, there was no inveigling, there

was no moral suasion to move her to a place that she didn’t want to be in.” 1

Third, civilian defense counsel ar gued that appellant did not commit aggravated assault (Specificat ion 4 of Charge V) because “the elements of grievous bodily harm are simply not me t.” Stated differently, “the injuries sustained would not comport with an aggravat ed assault because there is no cutting, there are no broken bones, nothing to s uggest aggravation[,] the use of hands and feet, even though the foot was shod with a sneaker, does no t elevate itsel f to a means likely.” Thus, civilian defense coun sel concluded that Specific ation 4 of Charge V “is a simple assault, just like all the other simple assaults.”

Finally, civilian defense c ounsel argued that appellant should be acquitted of the two aggravated sexual as sault offenses and the forcib le sodomy offense because LC “established a pattern in practice with [appellant] of saying no but then

1 The military judge found ap pellant not guilty of Specification 2 of Charge VI.MEDEIROS—ARMY 20081092

8 yielding.” Thus, the defens e of mistake-of-fact applied because LC’s declination did not actually mean declination given the pattern of practice between LC and appellant. 2 Appellant’s civilian defense counsel did not address any of the other remaining charges or specifications during his findin gs argument.

D. Appellant’s First Clemency Submission

Defense Appellate Exhibit A consists of a handwritten, tw elve-page personal letter appellant drafted and submitted to hi s trial defense counsel for purposes of his original submission to the convening authority pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1105. Appe llant faxed this letter to his trial defens e counsel on

8 June 2009.

At the beginning of appell ant’s clemency letter, he states “[t]hrough the

duration of this letter I will show you that at my tria l I was making decisions not based on logic but on emot ions; that are and were cl ouded by my various mental illnesses.” On page two of appellan t’s letter, he states the following:

The first thing I should go over is one of the biggest things. Right before my tria l I was offered a deal of 15 years. I denied that deal on the sole ba sis that if I got 15 or 30 years it did not matter I was going to kill myself either way. I said this so lely because I was unmedicated before and at my trial. Pa rt of my cond ition was known but was not being treated properly , if at all. Which in turn caused me to make a 32 year decision that is the worst decision of my life.

. . .

LAW AND DISCUSSION

“Article 66(c) does not authorize a Court of Criminal Appeals to decide disputed questions of fact pertaining to a post-trial claim, sole ly or in part on the basis of conflicting affidavits submitted by the parties.” United States v. Ginn , 47 M.J. 236, 243 (C.A.A.F. 1997). Nonetheless, a soldier is “not . . . always entitled to

2 The military judge found appe llant not guilty of both of the specificati ons alleging aggravated sexual assault. The milita ry judge did express concerns with the government over how it charge d the aggravated sexual as sault offenses immediately after the parties’ concluded findings argum ent. Specifically, the military judge questioned the government as to why it charged this case as an aggravated sexual assault offense against so meone who was substantially incapable of declining participation versus an aggravated sexual assault offense involving the use of threats or placing another pers on in fear of death or serious bodily harm.MEDEIROS—ARMY 20081092

9 a factfinding hearing on his collateral claim.” Id . In fact, a post-trial evidentiary hearing need not occur if the following principle applies:

Fourth, if the affidavit is fact ually adequate on its face but the appellate filings and the record as a whole ‘compellingly demonstrate’ the improbabilit y of those facts, the Court may discount those factual as sertions and decide the legal issue. . . .

Id . at 248.

We find that this fourth Ginn principle applies in appe llant’s case; therefore, an evidentiary hearing on appellant’s claim of ineffective assistan ce of counsel need not occur. In fact, we find the appellate filings and the record as a whole establish the absurdity of the claims ma de in appellant’s a ffidavit and that the claims made in appellant’s affidavit utterly lack any cr edibility. Instead, the representation

contained in the record of trial establishes civilian de fense counsel’s effort to properly and ably re present appellant in a profession al manner thr oughout his courtmartial.

Appellant first makes the foll owing claim in his affidavit:

After telling me about the possibility of a deal, my

civilian defense counsel told me that I would be ‘stupid’ to plead guilty because ther e was no doubt we would win the case. [H]e even said this would be a ‘slam dunk’ case

and he couldn’t lose. He to ld me I would not be found guilty and that I would no t serve any confinement.

However, this particular claim is wholly inconsistent with th e record of trial, as appellant initially pleade d guilty without the benefit of a pretrial agreement to one specification of maiming, four specifica tions of assault cons ummated by battery, one specification of adultery , and one specificat ion of communicating a threat. The military judge accepted appe llant’s guilty pleas to two specifications of assault consummated by battery, one specification of adulter y, and one specification of communicating a threat. If the milita ry judge would have further accepted appellant’s pleas to maiming and two spec ifications of assault consummated by battery, appellant would have faced a maximum punish ment of a dishonorable discharge, confinement for twenty-six years, total forfeiture of all pay and allowances, and reduction to the grade of E-1 ba sed solely upon his initial guilty plea. Thus, it strain s credulity to believe that civilian defens e counsel informed appellant he had a “slam dunk ” case that would not resu lt in any conviction or sentence to confinement, when appellant in itially attempted to plead guilty to seven

different offenses.MEDEIROS—ARMY 20081092

10 Second, appellant st ates the following in his affidavit:

Based solely on the advice of my civilian counsel, I

decided not to submit an offer to plead guilty in exchange for the sentence cap. . . . Th e only reason I did not submit the offer to plead guilty is because my civilian defense

counsel told me that I would not lose and th at I would not go to jail. Had my civili an defense counsel properly advised me, and informed me of the lack of defense

available to contradict th e overwhelming evidence, I would have pled guilty to the charged offenses in exchange for a fifteen y ear cap on my sentence.

Again, appellant’s claims are altogether inconsistent with the record of trial and the appellate filings. In addition to appellant’s in itial guilty plea to seven offenses, civilian defense counsel’s findings argumen t demonstrates a logical assessment of appellant’s case. Civilian defense counsel only argued that appellant was not guilty of the sex offe nses (Charge II an d its Specification, Charge IV and its Specification, and Additional Charge II and its Spec ification), the attempted kidnapping offense (A dditional Charge I and its Speci fication), and the kidnapping offense (Specification 2 of Charge VI).

On the other hand, civilian defense counsel made no attempt to argue that appellant should be acqu itted of the maiming o ffense (Charge III and its Specification) or five of the assaults consummated by ba ttery (Specifi cations 2, 3, 5, 7, and 8 of Charge V). In addition, civilian defense co unsel argued that appellant should be found guilty of an assault co nsummated by battery versus aggravated assault (Specification 4 of Charge V). Thus, civilian defens e counsel’s findings argument is incompatible with the position that appellant would not “lose” or go to jail.

Moreover, appellant’s affidavit is stri kingly inconsistent with the personal letter that appellant drafted as part of his initial clemency packet under R.C.M. 1105. Appellant unambiguously st ated in his first clemency letter that he denied the potential pretrial agreement “on the sole basis that if I got 15 or 30 years it did not matter I was going to kill my self either way.” (emphasi s added). This statement

demonstrates the falseness asso ciated with appellant’s curre nt claim that “[t]he only

reason I did not submit the offer to plead guilty is because my civilian defense

counsel told me th at I would not lose and that I would not go to jail.”

Third, appellant swore to the following in his affidavit:MEDEIROS—ARMY 20081092

11 The theory of the case, as told to me by my civilian defense counsel, was going to be that my friend [JC]

committed the offens es and that he was ‘Brian.’

The record likewise cont radicts appellant’s claim. During the providence inquiry into appellant’s failed attempt to plead guilty to th e maiming offense, appellant brought up “Brian.” After the m ilitary judge expressed reservations with appellant’s “rendition,” civilian defense couns el stated that the “rendition” involving “Brian” was “not the anticipated renditi on.” Later, when contemplating a continuance before trial on the remaining charges and specifications, civilian

defense counsel stated that matters were raised during the providence inquiry on issues that the defense team thought were al ready “dealt with comp letely.” Clearly, the entire providence in quiry negates the noti on that the defense theory of the case was going to center around making appellant’s friend, JC, the perpetrator because he was “Brian.” Instead, the pr ovidence inquiry reveals civi lian defense counsel’s best attempts to assist appellant and to remove “Brian” as justifi cation for appellant’s

criminal conduct.

Finally, appellant made the following claim in his affidavit:

My civilian defense counsel never told me the defense theory was going to be consen t and I was unaw are of this theory until my trial actually began. I did not believe this was a good theory at all for my case.

Yet again, the record of trial entirely contradicts appellant’s claim. Civilian

defense counsel did no t argue that LC cons ented to appellant’s conduct during his findings argument. Instead, civilian defense counsel argu ed how certain elements of

certain offenses were not met. This also includ ed appellant’s mistake-of-fact as to consent with respect to the sex offenses based upon the pattern of sexual behavior between appellant and LC. At no time during the findings argument did civilian

defense counsel ar gue that LC c onsented to the maiming or assault offenses. Instead, civilian defense c ounsel essentially c onceded appellant’ s guilt to those

offenses. 3

In sum, while appell ant’s affidavit raises facts involving inef fective assistance of counsel during the pretrial stage of his court-martial, th e record as a whole conclusively refutes those facts and demonstrates that appellant’s claims are

3 We note that civilian de fense counsel’s strategy with respect to the findings argument ultimately resulted in appell ant being found no t guilty of both specifications involvi ng aggravated sexual assault and of the specification involving kidnapping. Further, appellant does no t allege that he received ineffective

assistance of counsel at trial by civilian defense counsel ’s concession of guilt to the maiming and assaul t specifications.MEDEIROS—ARMY 20081092

12 “inherently incredible.” Ginn , 47 M.J. at 244 (quoting United States v. McGill , 11 F.3d 223, 226 (1st Cir. 1993)). Thus, this court disc ounts appellant’s factual

assertions and concludes th at appellant did not receiv e ineffective assistance of counsel during the pretrial po rtion of his court-martial. See Ginn , 47 M.J. at 248.

CONCLUSION

On consideration of the entire recor d, we hold the finding s of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, the fi ndings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: