## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Specialist MACK R. GOSS III United States Army, Appellant

ARMY 20150024

Headquarters, Fort Bliss Michael J. Hargis, Military Judge (arraignment & post-trial hearing) Timothy P. Hayes, Jr., Military Judge (pretrial motions hearing & trial) Colonel Karen H. Carlisle, St aff Judge Advocate (pretrial) Colonel Charles C. Poché, Sta ff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Charles D. Lozan o, JA; Captain Heather L. Tregle, JA; Captain Matthew D. Bernstein, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Melissa Dasg upta Smith, JA; Capt ain Jennifer A. Dona hue, JA (on brief).

16 February 2017

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

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

Per Curiam:

Pursuant to hi s pleas, a military judge sitting as a ge neral court-martial convicted appellant ofone specification ofviolating a lawful general order and one specification of wrongfully enga ging in sexual behavior in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U. S.C. §§ 892, 934 (2012) [hereinafter UCMJ]. Contrary to his plea, a panel co mposed of office r and enlisted members sitting as a general court-martial convicted appellant ofone specification of aggravated sexual cont act in violation of Artic le 120, UCMJ. The panel sentenced appellant to a bad-conduct discha rge, confinement for 179 days, forfeiture of all pay and allowances, and reduction to th e grade of E-1. * The convening

* The panel recommended appellant’s confin ement be deferred “until after [his] father’s funeral” a nd the forfeited pay and allowances “be directed to [his] dependents[.]”GOSS—ARMY 20150024

2 authority approved the sentence as adjudge d, approved 7 days of confinement credit, deferred the sentence to confinement for 14 days, deferred the ad judged forfeitures until action, and waived automa tic forfeitures for 165 days.

This case is now before us pursuant to Article 66, UCMJ. Appellant raises four assigned errors, one of which requires discussion but no relief. We also find the matters raised personally by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) , have no merit.

BACKGROUND

On 21 November 2013, on Bagram Airfield, Afghanistan, appellant wrongfully consumed alcohol in violation of a lawful general order. Afterwards, Sergeant (SGT) McFadden drove a Light Medium Tactical Vehicle (LMTV), with appellant and Co rporal (CPL) PF as passengers, from the Morale, Welfare, and Recreation facility to the barracks. When they arrived at the barracks, SGT McFadden parked the LMTV. Appellant and SGT McFadden then engaged in various sexual acts with CPL PF. At trial, CPL PF testified th e sexual acts with appellant and SGT Mc Fadden were accomplished by unlawful force and without her
consent.

On 14 January 2015, ap pellant was found guilty of and sentenced for, inter alia , aggravated sexual contact against CPL PF. The next day, appellant gave his defense counsel a prin t copy of an electronic mess age posted on Twitter that appeared to be from CPL PF. The Twitter message was posted on “5:05 PM – 14 Jan 2015” and read, “I lied and ruined a life today . . . Sorry but him or me LOL!!!!!”

On 21 January 2015, appe llant’s defense counsel m oved the trial court for a mistrial based on the Twitter message. The government opp osed the motion, challenging the authenticity of the Twitter message. In a judicial conference pursuant to Rule for Courts-Martial 802, the military judge inst ructed the trial and defense counsel to pr ovide a list of witnes ses that could establish or disprove the authenticity of the Twitter message.

Sometime later, the military judge sche duled an Article 39 (a), UCMJ, posttrial hearing for 28 Septembe r 2015 to hear testimony fr om any available witnesses regarding the authentic ity of the Twitter me ssage. In a judici al conference three days before the hearing, th e defense counsel re quested a delay to allow time for a limited forensic examin ation of the electron ic devices appellant purportedly used to view and print the Twitter message. The military judge denied the delay request, explaining he intended to hear testimony from the av ailable witnesses before deciding whether to grant appellant addition al time for discovery. At the hearing, however, defense counsel info rmed the military judge th at appellant wanted to withdraw his motion for a mistrial. Th e military judge qu estioned appellant extensively a bout his understanding of the meani ng and effect of withdrawing hisGOSS—ARMY 20150024

3 motion for a mistrial. The mi litary judge also ex plained the potent ial benefits to appellant if his motion was granted. This explanation specifically referenced the positive effect of the Twitte r message, if authenticated, as follows: “And I’m sure that your counsel explained to you that if that were true, if th at [Twitter message] were true, [that] certainly would be a basi s for either a mistrial or a new trial.” After reiterating the pur pose of the post-tri al hearing was to hear available testimony before deciding whether to grant defense counsel’s requ est for additional time for discovery, the militar y judge concluded by inquiring into th e voluntariness of appellant’s desire to withdr aw his motion for a mistrial.

During the entire in quiry, appellant as sured the military judge he understood the meaning and effect of wi thdrawing his motion for a mist rial. Appellant affirmed his decision was voluntary and made with full knowledge of the potential benefits he would lose. Acco rdingly, the mili tary judge grante d appellant’s requ est to withdraw his motion for a mistrial.

On appeal, appellant assert s as one of his assigned errors that he received ineffective assistance from hi s defense counsel. Supporti ng this clai m, appellant submitted a sworn affidavi t maintaining CPL PF posted the Twitter message, but alleging:

[he] was told the morning of the [post-trial hearing] the severity of [his wi fe’s pregnancy] comp lications and that [he] needed to get back to Sout h Carolina to be with her. [Appellant] told [his] defens e counsel and no efforts were made to reschedule the [heari ng]. It was [appellant’s] understanding the mi litary judge did not want to delay the [hearing] and [he] was forced to waiv e the [hearing] and motion for a mistrial to be home with [his] wife.

Appellant did not allege any ot her deficiencies in his defense counsel’s performance. Upon order from this court, defense counsel submitted affida vits describing their requests to delay the post-trial hearing, which the military judge denied.

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, “an appellan t must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this defici ency 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)).GOSS—ARMY 20150024

4 “On appellate review, ther e is a ‘strong presumpt ion’ that counsel was competent.” United States v. Grigoruk , 56 M.J. 304, 306 -07 (C.A.A.F. 2002) (quoting Strickland, 466 U.S. at 689). To overcome this presumption, an appellant “bears the burden of establis hing the truth of the fact ual allegations that would provide the basis for findin g deficient performance.” United States v. Tippit , 65 M.J. 69, 76 (C.A.A .F. 2007) (citing United States v. Polk , 32 M.J. 15 0, 153 (C.M.A. 1991)).

As a threshold matter, beca use appellant and defense counsel filed conflicting affidavits, we look to whether additional factfinding is required at a post-trial evidentiary hearing. See United States v. Ginn , 47 M.J. 236, 248 (C.A.A.F. 1997) (establishing several factors which determine whether an evidentiary hearing is warranted). Under the first Ginn factor, no factfinding hear ing is required if “the facts alleged in the affidavit allege an error that would not result in relief even if any factual dispute were resolv ed in appellant’s favor[.]” Id. Under th e fourth Ginn factor, no factfinding he aring is required “if the affidavit is factually adequate on its face but the appellate filing s and the record as a whole ‘compellingly demonstrate’ the improbability ofthose facts[.]” Id.

Based upon our review of a ppellant’s claim, defense counsel’s affidavits, and the matters contained in the record, we can resolve this is sue without ordering additional factfi nding. Starting with the fourth Ginn factor, the record compellingly demonstrates the factual asse rtion in appellant’s affidavi t—that his defense counsel made “no efforts” to delay his hearing—is false. At the post-trial hearing, the military judge acknow ledged the “[d]efense [counsel] requested a continuance” so appellant’s electronic devices could be fore nsically examined. The military judge, however, denied the request beca use he “felt it wa s time to get on the record . . . as opposed to continuing to leave it to co unsel to try to resolve and get all the evidence in one place.” The military judge also explained to appellan t he intended to reconsider the delay reques t after hearing from the av ailable witnesses about the authenticity of the Twitter message. The record of the post-tria l hearing leaves no doubt that appellant’s defe nse counsel requested a de lay in the proceedings.

Moreover, applying the first Ginn factor, we conclude the facts alleged in appellant’s affidavit would not result in relief even if any factual dispute were resolved in his favor. Id. Even if we read the fact ual assertion in appellant’s affidavit to mean his defe nse counsel ma de no efforts during the hearing to request a delay based on alternative grounds (i.e., his wife ’s medical conditi on), he still would not be entitled to relief. It is unli kely the military judge would have delayed the post-trial hearing if, as in this case, granting the delay would not have expedited appellant’s return home. Based on the short notice of the medical issues, the earliest return travel the govern ment could arrange for ap pellant was for two days after the scheduled hearing. Under thes e circumstances, it is d oubtful the military judge would have delayed the heari ng. Therefore, appellant ha s failed to prove deficientGOSS—ARMY 20150024

5 performance on the part ofhis defense counsel and, even assuming deficient performance, has failed to demonstrate prejudice.

CONCLUSION

Upon consideration of the entire recor d, the findings ofguilty and the sentence as approved by the c onvening authority are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: