UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, GALLAGHER, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

Staff Sergeant BRANDON A. TRIPP

United States Army, Appellant

ARMY 20111018

Headquarters, Fort Riley

Jeffery R. Nance, Military Judge

Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Richard E. Gorini, JA; Captain E. Patrick Gilman, JA (on brief). 

For Appellee: Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on 

brief).

17 July 2013

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opinion and, as such, does not serve as p recedent.

GALLAGHER, Judge:

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

pursuant to his pleas, of four specifications of conspiracy, one specification of 

absence without leave terminated by apprehension, one specification of escaping 

custody, five specifications of larceny, and one specification of burglary, in 

violation of Articles 81, 86, 95, 121, and 129 Uniform Code of Military Justice, 10 

U.S.C. §§ 881, 886, 895, 921, 929 (2006) [hereinafter UCMJ]. The military judge 

sentenced appellant to a bad-conduct discharge, confinement for five years,

forfeiture of all pay and allowances, and reduction to the grade of E-1. Pursuant to a 

pretrial agreement, the convening authority approved only so much of the sentence 

as provided for a bad-conduct discharge, confinement for twenty-two months, 

forfeiture of all pay and allowances, and reduction to the grade of E-1. The 

convening authority also awarded ninety-seven days of confinement credit. 
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This case is before us for review pursuant to Article 66, UCMJ. We find three 

issues merit discussion, one of which merits relief.

BACKGROUND

In his assignment of error to this court, appellant alleges he received 

ineffective assistance of counsel in the post-trial phase of his court-martial. 

Specifically, appellant asserts that his trial defense counsel failed to submit a 

personal letter and several letters from family members to the convening authority as 

part of his request for clemency. This was despite appellant informing his trial 

defense counsel that he desired to submit such matters. In support of this allegation 

of error, appellant provided a sworn affidavit wherein he stated:

Approximately one week after I was sentenced on 15 

November 2011, my trial defense counsel and I discussed 

submitting clemency matters for consideration by the 

convening authority pursuant to R.C.M. 1105/1106. 

During that discussion, [my defense counsel] instructed 

me to have my family members write letters to submit to 

the convening authority. He also told me I had 

approximately one month to obtain those letters. I told my 

defense counsel I would obtain letters requesting 

clemency on my behalf from various family members and 

I would submit them to [my defense counsel] upon 

receiving them. 

By mid December 2011, I received letters written on my 

behalf . . . . I sent those four letters, along with a letter I 

wrote for the convening authority, to [my defense counsel] 

at Fort Riley, Kansas, approximately one week after 

receiving the letters from my family members. 

Appellant also stated he was unaware, until receiving his record of trial, the letters 

had not been submitted to the convening authority for consideration. 

In response to this allegation of error and pursuant to an order by this court,

appellant’s trial defense counsel submitted an affidavit stating he never received the 

letters from appellant. Moreover, appellant’s trial defense counsel states he spoke 

with appellant on more than one occasion and provided appellant with a due date of 

16 December 2011 to submit any matters to him for inclusion in the clemency 

request. He further advised appellant that he would contact family members on 

appellant’s behalf to obtain supporting documentation, but appellant denied this 

offer. Appellant’s trial defense counsel provided a due date of 16 December 2011 to

ensure all matters were collected and prepared for submission prior to his 
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3

deployment to Afghanistan. Appellant’s trial defense counsel did not leave until 29 

December 2011 and did not receive the alleged letters before his deployment. 

Additionally, Ms. Gibson, the post-trial paralegal preparing appellant’s matters for 

presentation to the convening authority, attested she never received the letters prior 

to appellant’s matters being submitted on 7 February 2012. 

LAW AND DISCUSSION

Ineffective Assistance of Counsel

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)). In the military, 

this guarantee extends to assistance with the post-trial phase of a court-martial. 

United States v. Lee, 52 M.J. 51, 52 (C.A.A.F. 1999). We review de novo claims 

that an appellant did not receive the effective assistance of counsel. United States v. 

Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009). 

“In assessing the effectiveness of counsel we apply the standard set forth in 

Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption 

of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).” 

Gooch, 69 M.J. at 361. To overcome the presumption of competence, the Strickland

standard requires appellant to demonstrate “both (1) that his counsel’s performance 

was deficient, and (2) that this deficiency resulted in prejudice. ” United States v. 

Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687). 

This Court applies a three-part test to determine whether the presumption of 

competence has been overcome:

1. Are the allegations true, and, if so, is there any reasonable 

explanation for counsel’s actions?

2. If the allegations are true, did counsel’s performance fall 

measurably below expected standards?

3. Is there a reasonable probability that, absent the errors, there 

would have been a different outcome?

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991). In the context of a post-trial

claim for ineffectiveness, our superior court has modified the third step, requiring

only that there be some colorable showing of possible prejudice. Lee, 52 M.J. at 53 

(citing United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).
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When assessing Strickland's first prong, courts “must indulge a strong 

presumption that counsel's conduct falls within the wide range of reasonable 

professional assistance.” Strickland, 466 U.S. at 689 (citation omitted). When 

challenging the performance of trial defense counsel, the appellant “bears the burden

of establishing the truth of the factual allegations that would provide the basis for 

finding deficient performance.” United States v. Tippit, 65 M.J. 69, 76 

(C.A.A.F.2007) (citation omitted). When there is a factual dispute, we determine 

whether further fact finding is required under United States v. Ginn, 47 M.J. 236 

(C.A.A.F.1997). If, however, the facts alleged by the defense would not result in 

relief under the high standard set by Strickland, we may address the claim without 

the necessity of resolving the factual dispute. Ginn, 47 M.J. at 248.

After consideration of the record of trial, the pleadings, and the post-trial

affidavits, we conclude a fact-finding hearing is not required in this case. First, in 

his affidavit, appellant simply avers that he assumed responsibility for obtaining 

letters for inclusion in his clemency request. Furthermore, he states he ultimately 

received those letters and mailed them to his defense counsel but not until the agreed 

upon deadline had past. Defense counsel’s and Ms. Gibson’s affidavits are equally 

simplistic and can be read consistently in that they merely aver that neither counsel 

nor the post-trial paralegal ever received the letters, let alone before the deadline or 

before submission of the clemency packet. Importantly, appellant does not claim his 

counsel received the letters and did not submit them. Nor does counsel claim that 

appellant is lying when he states he put the letters in the mail. 

Second, we find appellant failed to establish his counsel’s performance fell 

measurably below the expected professional standards. Appellant’s trial defense 

counsel adequately advised him of his ability to submit matters to the convening 

authority and advised him to obtain such matters; offered to gather supporting letters 

for appellant and established an agreed upon, reasonable due date of “approximately 

one month” for appellant to get any desired matters to his defense counsel; checked 

in with appellant to remind him to submit any desired matters; prepared a clemency 

request and reviewed the contents with appellant; and submitted his clemency 

request to the post-trial paralegal with instruction that it be forwarded to the 

convening authority after service of the staff judge advocate’s post-trial 

recommendation. On the other hand, appellant allowed an established deadline to 

pass without informing his trial defense counsel that he was about to or did mail 

matters for submission but they would be arriving past that deadline. Appellant was 

aware his trial defense counsel was deploying yet made no effort to contact anyone 

to let them know the letters had been mailed and would be late or to determine if 

they had arrived. Under these circumstances, we cannot say appellant’s defense 

counsel acted unreasonably in submitting matters to the convening authority. This is 

especially true where action was not taken until 7 February 2012 and the letters still 

had not arrived at Fort Riley.
TRIPP—ARMY 20111018

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We find appellant has failed to meet the first prong of the Strickland test by 

showing his counsel’s performance was deficient. See Strickland, 466 U.S. at 687.

Additionally, even if appellant’s trial defense counsel’s performance was deficient, 

appellant has failed to establish that the deficiency resulted in pre judice. Although 

appellant’s letter and the letters from his relatives would have provided new 

information about his background, his separation from his son, and his family’s 

willingness to support him, the remainder of the information was included within the 

record of trial and within appellant’s trial defense counsel’s clemency request: 

appellant’s strong military history, his drug addiction history, and a request for an 

early release from confinement. Additionally, appellant’s family’s need for 

financial support had been brought to the convening authority’s attention through the 

request for deferment of forfeitures. Appellant’s criminal conduct, particularly his

burglarizing a deployed neighbor’s home, as well as stealing TA-50 from soldiers 

and stealing military property was especially aggravating. The adjudged sentence 

included five years of confinement. Pursuant to a pretrial agreement, the convening 

authority reduced the term of confinement to twenty-two months of confinement. 

We are confident appellant has failed to make a colorable showing of possible 

prejudice.

Sufficiency of Plea to Conspiracy on Divers Occasions

 

While not raised by the parties, we find there is a substantial basis in law and 

fact to question appellant’s plea of guilty to conspiring with Ms. DC “on divers 

occasions” in Specification 1 of Charge III. In order to establish an adequate factual 

predicate for a guilty plea, the military judge must elicit “factual circumstances as 

revealed by the accused himself [that] objectively support that plea[.]” United 

States v. Davenport, 9 M.J. 364, 367 (CMA 1980). Here, Specification 1 of Charge 

III alleged appellant did “between on or about 19 October 2010 and on or about 16 

June 2011, on divers occasions, conspire with” Ms. DC to commit larceny of 

military property in excess of $500.00. However, appellant only admitted to 

conspiring with Ms. DC on one occasion. See Manual for Courts-Martial, United 

States (2008 ed.), pt. IV ¶ 5.c.(3) (an agreement to commit several offenses is 

ordinarily but a single conspiracy). As such, we find the military judge abused his 

discretion in accepting appellant’s plea of guilty to conspiring with Ms. DC “on 

divers occasions” and we will strike the “divers occasions” language from the 

specification.

Maximum Punishment

This court has long held “the record must show either that one item of the 

property stolen has [a value of $500.00] or that several items taken at substantially 

the same time and place have such an aggregate value” for an accused to be 

convicted of the greater offense and subjected to a maximum punishment that 

includes five years of confinement. United States v. Harding, 61 M.J. 526, 528 
TRIPP—ARMY 20111018

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(Army Ct. Crim. App. 2005) (citing United States v. Christensen, 45 M.J. 617, 619 

(Army Ct. Crim. App. 1997) (quoting United States v. Rupert, 25 M.J. 531, 532 

(A.C.M.R. 1987)). 

In Specification 2 of Charge III appellant was charged with conspiring to 

commit larceny of property, and in Specification 2 of Charge IV appellant was 

charged with larceny of that same property. Both specifications alleged the property 

value exceeded $500.00.

In this case, the military judge and the parties correctly recognized that the 

language in the specifications “of a value of more than $500.00,” while factually 

accurate as to the total value of property taken, did not trigger the enhanced 

maximum punishment. The accumulated value did not trigger the greater maximum 

punishment because no single item exceeded $500.00 in value nor was it established 

that property taken at substantially the same time and place exceeded $500.00 in 

value. As the military judge and the parties correctly calculated and applied the 

maximum punishment by utilizing the maximum punishment attributable to larceny 

of property of a value less than $500.00 for both Specification 2 of Charge III and 

Specification 2 of Charge IV, there is no error. 

CONCLUSION

On consideration of the entire record and the submissions by the parties, we 

approve and affirm only so much of Specification 1 of Charge III as provides, 

“[b]etween on or about 19 October 2010 and on or about 16 June 2011, at or near 

Fort Riley Kansas, conspire with Mrs. D.C. to commit an offense under the Uniform 

Code of Military Justice, to wit: larceny of TA-50, of a value of more than $500.00, 

the property of the United States Government, and in order to effect the object of the 

conspiracy the said accused did cut the locks on the storage cages containing the 

TA-50.”

The remaining findings of guilty are AFFIRMED. Reassessing the sentence 

on the basis of the error noted, the entire record, and in accordance with the 

principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. 

Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors Judge Baker identified in 

his concurring opinion in Moffeit, this court affirms the sentence.

Senior Judge COOK and Judge HAIGHT concur. 

 
TRIPP—ARMY 20111018

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FOR THE COURT:

ANTHONY O. POTTINGER

ANTHONY O. POTTINGER

Chief Deputy Clerk of Court

FOR THE COURT: