UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman NICHOLAS R. GROTTENTHALER

United States Air Force

ACM 38380

11 March 2014

Sentence adjudged 1 May 2013 by GCM convened at Whiteman Air Force 

Base, Missouri. Military Judge: Rodger A. Drew, Jr. (sitting alone).

Approved sentence: Bad-conduct discharge and reduction to E-1.

Appellate Counsel for the Appellant: None. 

Appellate Counsel for the United States: Colonel Don M. Christensen.

Before

HELGET, WEBER, and PELOQUIN

Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before final release.

PER CURIAM:

A military judge sitting as a general court-martial convicted the appellant, 

consistent with his pleas, of one charge and specification of maiming MG (his wife); one 

specification of aggravated assault with a force likely to produce death or grievous bodily 

harm; and one specification of assault consummated by a battery, in violation of 

Articles 124 and 128, UCMJ, 10 U.S.C. §§ 924, 928.1 The military judge sentenced the 

appellant to a bad-conduct discharge and reduction to E-1. The convening authority 

approved the sentence as adjudged.

 

1

Pursuant to a defense motion, the military judge dismissed an additional specification of aggravated assault with a 

force likely to produce death or grievous bodily harm on multiplicity grounds.
2 ACM 38380

The appellant’s conviction arose from his violent behavior toward his wife on 

Halloween night 2012. The appellant fell asleep after an evening of drinking. His wife 

later confronted him about suspicious text messages she found on his cell phone. When 

the appellant learned his wife had taken his cell phone, he chased her downstairs, shoved 

her to the floor, shook her, berated her, broke her finger to pry her cell phone from her, 

broke her cell phone and glasses, and shoved her face to the floor. The appellant’s wife 

escaped outside when the appellant picked up and destroyed a television. Outside, the 

appellant caught up to her, strangled her until she passed out, and pushed or shoved her 

face-first into the sidewalk, causing her to break three of her front teeth. 

The record of trial contains three Air Force (AF) Form 304s signed by the 

appellant. On the first form, signed on the date of trial, the appellant requested appellate 

defense counsel to represent him. However, he later signed two additional 

AF Form 304s stating he no longer wished to have appellate defense counsel represent 

him. He signed the final form shortly after the convening authority’s action. As a result, 

the Air Force Appellate Defense Division declined to assign counsel to the appellant. 

The appellant, however, has not waived appellate review of his case. This Court 

contacted the appellant’s trial defense counsel to inquire whether the appellant still 

elected not to be represented by appellate counsel and whether the appellant wished to 

personally raise any issues for this Court’s consideration. The appellant’s trial defense 

counsel stated that the appellant did not desire to raise any issues to this Court’s attention, 

and still did not wish to be represented by appellate defense counsel.

Under Article 70(c), 10 U.S.C. § 870(c), and Rule for Courts-Martial 1202(b)(2), 

appellate defense counsel are to represent an appellant in cases before this Court when 

requested by the accused, or in other situations not applicable here.2 We therefore find 

that the proper course of action is to conduct a review of the record under Article 66, 

UCMJ, 10 U.S.C. § 866, without the benefit of a brief from the appellant. Our superior 

court has stressed the importance of appellate defense counsel and receiving a brief from 

the appellant, but the Court did so in the context of a case where “an appellant has 

requested representation that does not appear to be forthcoming.” United States v. Roach, 

66 M.J. 410, 418 (C.A.A.F. 2008). In Roach, the Court held that “[i]f the court 

determines that circumstances warrant proceeding without a brief filed by appointed 

military appellate counsel, the court must first provide adequate notice to the appellant so 

that the appellant can determine whether to request substitute counsel under Article 70,

[UCMJ,] obtain civilian counsel at the appellant’s expense, or waive the right to counsel 

and proceed pro se.” Id. This case presents a different situation than Roach, but this 

Court has nonetheless contacted the appellant through counsel, and the appellant has 

again affirmatively elected not to be represented by counsel on appeal. We therefore 

 

2 One other situation requiring appellate defense counsel to represent an appellant before this Court is when the 

United States is represented by counsel. No appellate government attorneys have entered appearances in this case 

on behalf of the Government.
3 ACM 38380

hold that the appellant has waived his right to appellate counsel and we are to proceed 

without the benefit of a submission on the appellant’s behalf. 

We have carefully reviewed the record of trial, and find no grounds to disturb the 

conviction or sentence. The appellant’s guilty plea pursuant to a pretrial agreement was 

provident, and his sentence is appropriate. No legal issues arose from the trial or the 

processing of this case that warrant relief.

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and 

sentence are

AFFIRMED.

FOR THE COURT

STEVEN LUCAS

Clerk of the Court