## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant ERIC D. SIMON United States Army, Appellant

ARMY 20160312

Headquarters, 1st Cavalry Di vision (Rear)(Provisional) Douglas K. Watkin s, Military Judge Colonel Oren H. McKnelly, St aff Judge Advocate (pretrial) Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (post-trial)

For Appellant: Major Christ opher D. Coleman, JA; Captai n Joshua G. Grubaugh, JA (on brief).

For Appellee: Li eutenant Colonel A.G. Courie III, JA; Major Michael E. Korte, JA (on brief).

16 June 2017

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

---------------------------------
FEBBO, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of sexual abus e of a child under 12 ye ars old, possession of child pornography and distribution of child pornogr aphy, in violatio n of Articles 120b and 134, Uniform C ode of Military Jus tice, 10 U.S.C. §§ 920 and 934 (2012) [hereinafter UCMJ]. The military judge sentenced ap pellant to a dishonorable discharge, confinement for fo rty-two months, and reduction to the grade of E-1. The convening authority approved the adjudged sentence.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant

raises one issue that does not merit detailed discussion or relief. 1 Two matters

1 Appellant seeks relief fo r dilatory post-trial proc essing of his case. The government took 196 days from sentence to action in a ca se with a 120-page record

of trial. We find no du e process violation in the post-t rial processing of appellant’s

(continued...)SIMON—ARMY 20160312

2 personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982)—that his attorney was ineffective during presente ncing and the actual images of child pornography ha d to be introduced as evidence to support his guilty plea—warrant disc ussion but no relief.

BACKGROUND

Appellant was caught surreptiti ously taking pict ures of female children at an amusement park. A subsequent criminal investigation uncove red more than 200 images of child porn ography, child erotica, and nu de pictures of children on appellant’s computer. The images of ch ild pornography showed minors, as young as two years of age, engaging in sexual intercourse with adults or other minors. The images included mino rs masturbating, enga ging in fellatio, an al sodomy, and other

sexual acts with adu lts. One of the images included a minor engaging in sexual acts with a dog.

Appellant obtained these images by searching the “dark web” for child pornography. Using an instant messaging appl ication, appellant distributed images of child pornography. Ap pellant also committed lewd acts upon a child when he photographed his spouse, while in the presence of a chil d, nude and engaging in

sexual conduct.

The charged offenses included possessi on of more than 20 images of child pornography and distribution of 10 images of child porn ography. Appe llant and the convening authority entered in to a pre-trial agreement wh erein the appellant agreed to plead guilty to the offe nses and ente r into a stipulation of fact with the
government.

During appellant’s guilty plea, the government in troduced the stipulation of fact. The parties did not introduce into evidence the actual images of child pornography. As part of th e providence inquir y, the military ju dge had ap pellant describe each of the images of child por nography and explain w hy he believed he knowingly and wrongfully possessed an d distributed chil d pornography.

(...continued) case. Considering the unjust ified dilatory post-trial proc essing and the offenses of which appellant was convicte d, we nonetheless fi nd the sentence was appropriate. UCMJ art. 66(c); United States v. Tardif , 57 M.J. 219, 22 4 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, service courts are] required to determine what findings and sentence ‘should be approved,’ based on all the f acts and circumstances reflected in the record, includ ing the unexplained an d unreasonable post -trial delay.”). See generally United States v. Toohey , 63 M.J. 353, 362-63 (C.A.A.F. 2006).SIMON—ARMY 20160312

3 LAW AND DISCUSSION

1. Ineffective Assistance of Counsel During Presentencing

We review claims that an appellant did not receive effective assistance of

counsel de novo. United States v. Akbar , 74 M.J. 364, 37 9 (C.A.A.F. 2015); United

States v. Datavs , 71 M.J. 420, 424 (C.A.A .F. 2012). “In order to prevail on a claim

of ineffective assistance of c ounsel, an appellant must de monstrate 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)).

When assessing Strickland ’s second prong for prejudic e, we require a showing “there is a reasonable probabil ity that, but for coun sel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine conf idence in the outcome.” Strickland , 466 U.S. at 694. That requires a “substantial,” no t just “conceivable,” likeli hood of a differe nt result. Harrington v. Richter , 562 U.S. 86, 112 (2011). “An appellant must establish a factual

foundation for a claim of ine ffectiveness; second-guessi ng, sweeping generalizations, and hindsight will not suffice.” United States v. Davis , 60 M.J. 469, 473 (C.A.A.F. 2005) (citing United States v. Key , 57 M.J. 246, 249 (C.A.A.F. 2002)).

As far as presentencing procedures, ine ffective assistance of counsel can occur

when counsel fails to introduce evidence th at would be of value to the accused in extenuation and mitigation. United States v. Boone , 49 M.J. 187, 196 (C.A.A.F. 1998).

Appellant provided the court with a swor n affidavit detaili ng his criticisms of his defense counsel for not pr esenting live in-c ourt testimony during presentencing. Appellant claims his counse l never fully explai ned the importance of presentencing

character witnesses. Instea d, the character letters s ubmitted to the court were merely templates that focuse d on why appellant should stay in th e Army instead of appellant’s general good character and st eps that he had ta ken to rehabilitate himself. Appellant asserts if he had known ab out the importance of presentencing witnesses, he would have requested the indi viduals that wrote letters to testify in person. Appellant states he would have also called his spouse and another individual to testify on his behalf. However, the record does not suppor t appellant’s

assertion that his counsel was ineffective fo r not presenting li ve testimony during sentencing at trial.

First, appellant signed an offer to plead guilty and specifically waived production of witnesses at go vernment expense from outside a 50-mile radius of the trial location. Appellan t agreed that teleph onic testimony or stipul ations of expected testimony were an admissibl e substitute for live wi tness testimony at trial.SIMON—ARMY 20160312

4 Second, appellan t has not established that the personal appearance of the witnesses would have provided anything that was not already containe d in the letters

submitted at trial. The mil itary judge explaine d to appellant that he could present sentencing evidence to include document ary evidence and sentencing witnesses. Appellant stated on the reco rd he understood his rights to present ex tenuation and mitigation evidence at trial.

“[W]hen claiming ineffectiv e assistance of counsel fo r failure to present the testimony of a part icular witness, an appellant must specifically allege the precise

substance of the witness’ missing testimony.” United States v. Clemente , 51 M.J. 547, 550-51 (Army Ct. Cr im. App. 1999) (citing United States Russell , 48 M.J. 139, 141 (C.A.A.F. 1998); United States v. Moulton , 47 M.J. 227, 229 (C.A.A.F. 1997),

cert. denied , 522 U.S. 1114 (19 98)). To support a claim for ineffect ive assistance of counsel, facts must be included in a statement, by some one with personal knowledge, that is a sworn a ffidavit or a de claration made under penalty of perjury for this court to consider the statement on appeal. United States v. Cade , 75 M.J. 923, 929 (Army Ct. Crim. App. 2016), pet. denied, 76 M.J. 133 (C.A.A.F. 2017).

For the witnesses that already provi ded statements du ring sentencing, appellant has not provided sworn affidavits or declarations fr om the witnesses of what they would have testif ied to differently in-person. Similarly, he does not provide affidavits or declarations from his spouse and his purported additional witnesses about their expect ed testimony. Since his spou se was a co-actor in the sexual abuse of a child, the court notes th at his spouse’s sent encing testimony may have been subjected to impe achment by the government. Appellant ha s failed to

establish his counsel was ineffective for failing to call defe nse witnesses during presentencing. Clemente , 51 M.J. at 550.

2. Record Incomp lete to Conduct Appellate Review

Appellant asserts that th e actual images of chil d pornography had to be

introduced as evidence to support his guilty plea. Ap pellant asserts that without the actual images, this court cannot conduct an adequate Article 66, UCMJ review.

Appellant agreed that the facts contained in the stipulation of fact were true

and admissible at trial. As an initial matte r, it is within the sound discretion of a defense counsel, in consultation with their client, to decide which exhibits should be attached as part of th e stipulation of fact, if any. St rategic and tactical decisions are

within the sole discretion of the defe nse counsel. United States v. Dobrava , 64 M.J. 503, 505 (Army Ct. Crim. App. 2006). Introduction of images of child pornography can be far more aggravati ng than a thousand words describing the images. To minimize aggravation evidence, a defens e counsel may decide that it is more advantageous for their client not to pres ent the actual images of child pornography

to the court.SIMON—ARMY 20160312

5 Either way, additional evidence is not re quired to be attach ed to a stipulation

of fact or introduced at tr ial to provide extrinsic proof of the facts already agreed upon by the parties in the stipulation of fact. “The government is not required to introduce evidence of appellant’s guilt when an accused enters a plea of guilty.” United States v. Updegrove , ARMY 20160166, 2017 CCA LEXIS 36, *3 (Army Ct. Crim. App. 23 Jan. 2017), pet. denied , 2017 CAAF LEXIS 581 (C.A.A.F. 5 Jun. 2017). “Although child pornography images are often admitted as exhibits at trial, there is no statutory or regulatory requ irement that such images be admitted as exhibits in a guilty plea case when the co urt is otherwise sati sfied an accused has providently admitted they c onstitute child pornography.” United States v. Rominger

, ARMY 20080423, 20 09 CCA LEXIS 315, *4-5 (Army Ct. Crim. App. 8 Jun. 2009), pet. denied , 68 M.J. 230 (C .A.A.F. 2009). This court routinely conducts Article 66,

UCMJ reviews of records of “n aked guilty pleas” that do not have a stipulation of

fact or other extrinsi c evidence introduced to support the guilty pl ea. In this case, the parties completed a stipulation of fact.

As the military judge explained and ap pellant agreed, the “contents of the stipulation of fact are true, and if entered into evidence, are uncontradicted facts in this case.” Appellant agreed that the stip ulation of fact could be used to determine if appellant was in fact guilt y of the offenses, ordinarily cannot be contradicted, and the content was true and correct. Appellant entered a correct and va lid plea of guilty

to the offenses.

Appellant, using a file na me for each image, explained to the military judge why each of the twenty-one im ages he possessed and ten images he distributed, was child pornography. Our review of the record estab lishes that the appellant provided

sufficient details about the th irty-one images to establish a factual basis that the images were both in law and fact child pornography.

The facts elicited in the providence inquiry were consistent with appellant’s stipulation of fact. Th e colloquy between appellant and the military judge adequately established appella nt’s guilt to the offenses.

CONCLUSION

The findings of guilty and the sentence are AFFIRMED.

Senior Judge MULLIGAN an d Judge WOLFE concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: