FORD - ARMY 20080681

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

HOLDEN, HOFFMAN, and CONN

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private First Class WESLEY C. FORD**

**United States Army, Appellant**

ARMY 20080681

Headquarters, 82d Airborne Division

Patrick J. Parrish, Military Judge 

Lieutenant Colonel William A. Schmittel, Acting Staff Judge Advocate (pretrial)

Lieutenant Colonel Paul S. Wilson, Staff Judge Advocate (post-trial)

For Appellant:  Major Grace M. Gallagher, JA; Captain Pamela Perillo, JA (on brief in response to court order); Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA; Captain Pamela Perillo, JA (on brief).

For Appellee:  Colonel Denise R. Lind, JA; Lieutenant Colonel Francis C. Kiley, JA; Major Christopher B. Burgess; Captain Lynn I. Williams, JA (on brief).

31 July 2009

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SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of absence without leave (AWOL) in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 [hereinafter UCMJ].  The military judge sentenced appellant to a bad-conduct discharge, confinement for eight months, and reduction to Private E1.  Pursuant to a pretrial agreement, the convening authority reduced the sentence to confinement to six months and approved the remainder of the sentence as adjudged.  This case is before the court for review pursuant to Article 66, UCMJ. 

**FACTS**

Appellate defense counsel alleges post-trial ineffective assistance of counsel regarding appellant’s clemency submission to the convening authority.  In support of that claim, appellant personally submitted a declaration under penalty of perjury.  The declaration acknowledged one post-trial telephone conversation with trial defense counsel and stated, in pertinent part: 

I wanted to stay in the military so I ask[ed] him to 

request disapproval of my BCD or in the alternative a month off my confinement. . . .  I have not received a copy of my clemency petition, and I have absolutely no idea what is contained in that petition.

     Appellant further added:

My attorney never informed me that I could submit statements from my family, friends, fellow soldiers or I could submit my awards and military certificates as documents to ask for clemency from the Commanding General.  I also would have submitted my medical documentation regarding my poor vision in one eye which is 20/400 and surgery that was needed on my foot.

Appellant did not submit the medical documents in question or any favorable letters or witness statements in support of his claim.  

In response to this allegation, we ordered an affidavit from CPT H, appellant’s trial defense counsel, regarding his post-trial discussions with appellant and actions taken to submit Rule for Courts-Martial [hereinafter R.C.M.] 1105 and 1106 matters.  The affidavit was properly responsive to our series of questions including, *inter alia*, whether appellant requested that CPT H present alternative options to the convening authority, i.e., disapproval of the bad-conduct discharge or a thirty-day reduction in confinement.  

Captain H’s affidavit provides substance to the multiple post-trial discussions he had with appellant.  CPT H explained under oath:

I advised appellant of his post-trial appellate rights prior to his court-martial on several occasions . . . [and] [i]mmediately following his court-martial . . . .  I also discussed with appellant his post-trial and appellate rights while he was incarcerated at the Camp LeJeune Confinement Facility on two occasions.  

Captain H further stated he advised appellant regarding:

the full spectrum of [options] including . . . requesting

disapproval of the adjudged bad[-]conduct discharge [and]

requesting a reduction in confinement time . . . .  I 

discussed with appellant the pros and cons of making

an either/or request and how that kind of request could be 

received by the convening authority.  My advice was to 

decide what he wanted the most and that we make the 

strongest possible argument for it.  

Based on CPT H’s advice that a reduction in confinement had the best chance of success, CPT H averred: 

It was appellant’s decision to request a 30 day reduction in

confinement time.  Appellant told me he had a job awaiting him back home and that a reduction in confinement time would help secure the job.  At no time did appellant tell me that he wanted the convening authority to disapprove the adjudged bad conduct discharge.  The clemency we requested was exactly what appellant wanted.

CPT H added he advised appellant to write a letter to the convening authority on his own behalf or to seek supporting letters or documents from family or friends and was perplexed when appellant declined to do so.

On 20 June 2008, CPT H submitted clemency matters to the convening authority pursuant to R.C.M. 1105 and 1106.  The submission consisted of a one-page memorandum from trial defense counsel requesting a thirty-day reduction in appellant’s sentence to confinement.  CPT H cited various factors in support of the request, including appellant’s pending employment in Washington state, the fact that appellant had engaged in no misconduct during the five-month period appellant was awaiting trial, and that appellant “had complied with all orders from his chain of command.”  There were no enclosures to the memorandum.

At trial, appellant agreed with the military judge that trial defense counsel explained his post-trial and appellate rights and acknowledged he understood those rights and had signed a post-trial and appellate rights form that covered in detail the clemency process and relevant deadlines.  The form was admitted into evidence as an appellate exhibit.

**LAW and DISCUSSION**

This is not a case where trial defense counsel allegedly failed to engage in post-trial discussions with appellant or consult with him on the content of R.C.M. 1105 and 1106 submissions.  Rather, this case features yet another instance of an appellant alleging ineffective assistance of counsel due to inadequate explanation of rights regarding preparation and submission of clemency matters under R.C.M. 1105 and 1106.  We find appellant was fully informed of those rights, especially as evidenced by the “Post-Trial and Appellate Rights” form which contains more detailed information than required by R.C.M. 1010.  The use of the “Post-Trial and Appellate Rights” form, coupled with the judge’s colloquy with the accused regarding those rights, is a long-standing and efficient staple of military court-martial practice.  *See generally United States v. McIntosh*, 27 M.J. 204, 207 (C.M.A. 1988) (noting the use of a post-trial appellate rights form to inform the accused of R.C.M. 1010 rights);*United States v. Gunderman*, 67 M.J. 683 (Army Ct. Crim. App. 2009).  It safeguards the rights of the accused and precludes unnecessary appellate litigation.  We decline to reduce the procedure to a legal nullity.

Under the circumstances of this case, we see no need to order a fact-finding hearing pursuant to *United States v. DuBay*, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).  “[T]he appellate filings and the record as a whole ‘compellingly demonstrate’ the improbability of [appellant’s allegation].”  *United States v. Ginn*, 47 M.J. 236, 248 (C.A.A.F. 1997).  We, therefore, may decide appellant’s ineffective assistance of counsel claim without further proceedings and by applying the first and fourth *Ginn* principles. *Id*.  In addition, nothing in appellant’s affidavit persuades us the convening authority would have granted appellant clemency if the more serious punishment of disapproval of the bad-conduct discharge had been presented as an alternative to the reduction in confinement.  *See**United States v.**Moulton*, 47 M.J. 227, 229-30 (C.A.A.F. 1997) (“When factual information is central to an ineffectiveness claim, it is the responsibility of [appellant] to make every feasible effort to obtain that information and bring it to the attention of the appellate court.”).  Accordingly, appellant has not established a colorable showing of prejudice.  *See United States v. Wheelus*, 49 M.J. 283, 288-89 (C.A.A.F. 1998). 

We reject appellant’s ineffective assistance claim.  *Strickland v. Washington*, 466 U.S. 668 (1984).  The assignment of error and the matters raised personally by appellant under *United States v. Grostefon*, 12 M.J. 431 (C.M.A. 1982), are without merit.

The findings of guilty and the sentence are affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

� Appellant was charged with desertion with intent to avoid hazardous duty in Iraq in violation of Article 85, UCMJ; his guilty plea was to a lesser-included offense.  Appellant’s AWOL was more than five months in duration and occurred while his unit was engaged in combat operations.

� This document was labeled “Post-Trial and Appellate Rights (General Court-Martial).” 

�  Appellant’s pretrial agreement (PTA) specifically permitted approval of “a bad-conduct discharge, if adjudged.”  The other terms of the agreement, highly favorable to appellant, bound the convening authority to disapprove a dishonorable discharge if adjudged and prohibited the trial counsel from attempting to prove the greater charge of desertion.  Application of the PTA’s sentence limitation reduced appellant’s sentence to confinement by two months.

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