## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Specialist VICTOR J. FERNANDEZ United States Army, Appellant

ARMY 20160688

Headquarters, Joint Readiness Training Cen ter and Fort Polk Douglas K. Watkins , Military Judge
Lieutenant Colonel C hristopher L. Burgess , Staff Judge Advocate

For Appellant: Lieutenant Colo nel Tiffany M. Chapman, JA; Majo r Todd W. Simpson, JA; Capta in Augustus Turner, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Joshua Banister, JA (on brief).

16 November 2018

--------------------------------- MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

Specialist Victor J. F ernandez appeals his convictions of deser tion, rape of a child, attempted rape of a child, and sex ual abuse of a child, asking us to set aside his guilty plea. Appe llant alleges th at his trial defense coun sel were ineffective in that they failed to investigate , coerced him to plead guilty, a nd coached him into false and misleading testimony. W e ordered affidavits from the trial defense counsel who represented appel lant. We find no unethi cal behavior on th e part of the defense
counsel and conclude that their representation w as not ineffect ive.

A military judge sitti ng as a general court-martial convicted a ppellant, pursuant to hi s pleas, of one specifi cation of desertion termin ated by apprehension, two specifications of rape of a child under the age of twelve, one specification of
sexual abuse of a chil d under the age of twe lve, and one specif ication of attempted rape of a child un der the age of t welve, in violation of Articl es 80, 85, and 120b, Uniform Code of Military Just ice, 10 U.S.C. §§ 880, 885, and 92 0b (2012) (UCMJ). The military judge sent enced appellant to confinement for ninet een years and aFERNANDEZ—ARMY 20160688

2 dishonorable discharge. The convening authority approved the a djudged sentence and credited appellant with 318 days of confinement credit.

We review this case under Articl e 66, UCMJ. Appellant’s sole a ssignment of
error is a claim of i neffective assistance of counsel. Appella nt also personally
asserts additional e rrors pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). 1 After a review of the entire re cord, to include numerous appe llate exhibits, supplemental briefs, and affida vits, we find th e decisions of t he trial defense counsel were reasonable and affirm the findings and sentence.

BACKGROUND

Around midnight on 11 S eptember 2015, in the ir quarters at For t Polk, Louisiana, appellant’s wife, JR, heard the door to her five-yea r-old daughter SR’s room open. She went to investigat e and saw appellant hunched o ver SR’s bed with SR’s pajama bottoms rem oved and her buttocks exposed. JR deman ded to know what was going on and a ppellant stated, “Sinc e I couldn’t be wi th you, I ju st wanted to be with my little girl.” 2 JR immediately told a neig hbor who called the military police. The police apprehen ded appellant that night.

On 16 September 2015, SR gave a s tatement to cli nicians at the Rapides Child Advocacy Center (CAC). In her s tatement, SR described numerous sexual acts involving appella nt. Among the sexual act s that SR described w ere occasions where appellant touched her “pee-pee,” had her touch his “pee-pee,” t ouched himself, and attempted to insert his “pee-pee” into hers. SR also recounted seeing a video of her mother performing oral sex on appellant.

In October 2015, appellant left Fo rt Polk without authority. He eventually
went to California. I n December 2015 , appellant was arrested b y the California police and detained f or carrying a conceal ed handgun and being a deserter. He was subsequently transferred back to military control where he was placed into pretrial
confinement.

In January 2016, the government c harged appellant with committi ng numerous sexual offenses against both JR and SR. The government based t hese charges on statements made by JR and SR, DNA evidence taken f rom SR’s bed, a cell phone video taken on appella nt’s phone, an d the medical exam of SR. The time span for the charged offenses involving S R was between April and Septemb er 2015.

1 To the extent these a lleged errors do not overlap with our ana lysis below, they do not warrant any further discussion o r relief.

2 SR was appellant’s step-daughter.FERNANDEZ—ARMY 20160688

3 Appellant’s initial military def ense counsel, Cap tain BB, was s cheduled to leave the military. I n addition to CPT BB , the senio r defense counsel at Fort Polk, MAJ CM, was detailed t o the case. Major C M was undergoing a me dical evaluation board during this timeframe. Appellant su bsequently hired civi lian defense counsel, AC and CC. Appellant released C PT BB and the senior defense co unsel detailed
CPT ND to the case.

Appellant told his def ense counsel that he was innocent. Addit ionally, appellant told them he believed t hat AR, JR’s first husband and the father of SR,
could have assaulted SR. Further , appellant told his defense c ounsel that SR was visiting AR for the summer (and thus was not in Louisiana), so it was impossible for
him to have committe d any crimes invo lving SR durin g the charge d timeframe. As
to the semen and DNA in SR’s bed , appellant maint ained it was f rom having sex
with his wife in that bed when SR was away.

Appellant also asked his defense counsel about the likelihood o f conviction.
When told the chances of a convi ction were high, appellant and his defense counsel discussed the possibilit y of a plea deal. A C told appellant he could not plead guilty
if he maintained that he was inn ocent. AC also told appellant that he did not have to remember committing the crime if, after looking at the evidence , appellant believed that he was guilty.

Appellant told his def ense counsel that he had a history of exc essive alcohol consumption. He freque ntly drank large qua ntities of alcohol a nd “blacked ou t” (i.e.
he could not remember things he did or said). For example, on prior occasions, appellant had sex with h is wife and did not remember. Appellan t also had numerous
conversations that he did not remember. 3

In consulting with his defense coun sel, appellant alternated be tween stating he
was innocent and ask ing about the possib ility of a deal that wo uld limit his
confinement to u nder 20 years. Appellant eventually entered in to a pretrial agreement to plead guilty to some of the charged offenses in ex change for the convening authority dismissing s everal charges, including all o f the sexual abuse and assault allegati ons against his wife , and cappi ng his amoun t of confinement at 22 years. Once securi ng the deal that he wanted, appellant did not mention his innocence again to any of his defense counsel.

As part of his pretrial agreem ent, appellant entered into a sti pulation of fact
which was admitted at t rial. In this stipulation, appellant ad mitted to the underlying facts for each of the charges to which he pleaded guilty. Addi tionally, appellant

3 At trial and in the s tipulation of fact, a ppellant gave specif ic details of his drinking.FERNANDEZ—ARMY 20160688

4 acknowledged the v ariance in the date ra nge of when these event s took place but stated that the extended date range was “fairly included.”

At trial, appellant re peatedly told the mi litary judge that he had no
recollection of the alle ged events but had vi ewed the evidence and believed SR’s account of what happened. Appe llant ascribed his lack of memor y to his alcohol
use. He described to the milit ary judge how he w ould black out and have no memories. Appellant stated that h e believed SR’s statement fro m 16 September
2015 and the statements she made to medical personnel. For eac h charge and specification, appellant told the military judge exactly what e vidence he believed, pointing to specific statements t hat SR made at the CAC or whil e undergoing her medical exam. Appella nt did not adopt SR’s November 2015 state ment, and he challenged the veracit y of parts of that s tatement as he though t SR was “manipulated.”

The military judge disc ussed the viability of several defenses with appellant. As part of this colloq uy, appellant sp ecifically disavowed volu ntary intoxication and lack of mental respons ibility. Appellant also disavowed any co ercion in pleading guilty. He stated he was satisf ied with his attorneys. The mi litary judge found that appellant knowingl y and voluntarily p leaded guilty.

LAW AND DISCUSSION

To establish an ineffe ctive assistance of counsel claim, which we review de novo, an appellant must show: “(1) his counsel’s performance fe ll below an objective standard of reasonabl eness; and (2) the counsel’s deficient performance gives rise to a ‘reason able probability’ th at the result of the proceeding would have
been different without counse l’s unprofessional errors.” United States v. Akbar , 74 M.J. 364, 371 (C.A.A .F. 2015) (quoting Strickland v. Washington , 466 U.S. 668, 688, 694 (1984)) (emphasi s in original).

When we evaluate the first Strickland prong, we “must in dulge a strong presumption that counsel’s conduc t falls within the wide range of reasonable professional assista nce.” 466 U.S. at 68 9. Appellant has the burden to show “that
counsel made errors so serious t hat counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id . at 687; see also Harrington

v. Richter , 562 U.S. 86, 104 (2011).

Appellant’s claim regarding inef fective assistance of counsel h as several parts. More specifically, appe llant claims: (1) his defense te am did not investigate leads; (2) his defense counsel c oerced him into p leading guilty ; and (3) his defense counsel suborned perju ry during his guilty p lea. After reviewi ng the record, we find
that none of these cl aims have merit or warrant additional fact -finding.FERNANDEZ—ARMY 20160688

5 First, in regards to t he alleged failure to investigate, we are convinced by the explanations provided in the various defense counsel affidavits . All defense counsel acknowledge that appellant provided information which led to he lpful evidence. 4 For example, they acknowledge ap pellant gave them information w hich established
that either SR w as gone or appellant was away during a large ma jority of the time period charged. Appellant also tol d them to investigate AR; th e defense co unsel did
and found evidence to s upport appellant’s a llegations that AR m ay have abused SR and possibly other chil dren. Appellant fur ther asked the defen se team to look into credibility issues with JR. Th e defense team found JR did have credibility issues, but they also found tha t several of her allegations were corrob orated by witnesses
who did not have credi bility issues. In s um, even with all of appellant’s information, leads, and suggestions, the def ense counsel did no t believe that this information was enough to overcom e the strength of the governme nt’s evidence.

Second, though app ellant may have subject ively felt “coerced” i nto pleading guilty, the objective facts do no t support his assertion. Appe llant was facing a
maximum sentence of life with out the eligibility of parole. Ap pellant’s defense counsel, including the senior de fense counsel at Fort Polk and an experienced civilian defense counsel, evaluate d the government’s chance of convicting appellant as being high. Upon our review of the reco rd of trial and evid ence therein, this evaluation appears reasonable. 5 Telling an accused that the evidence against them is strong and the po tential penalties for a conviction are great i s not coercion. 6 Third, as to the alleg ation that the civilia n defense counsel a nd rest of the defense team suborned p erjury, we find no e vidence th at the def ense team believed appellant to be lying w hen he testified tha t he could not remem ber committing the
offenses but had revie wed the evidence and believed the evidenc e. The defense counsel agree that appellant originally stated that he was inno cent, but wanted a deal that would cap his confinement at under 20 yea rs. Appellant al so told his defense

4 None of the defense counsel rem ember telling appellant that th e system was corrupt or that “proof of his innocence would not ma tter.” Instead, th ey believe that appellant interpreted their expl anations of how i n some circums tances an innocent
man can be convicte d as meaning the system is corrupt.

5 As part of the guilty plea, the government dismissed all of t he allegations regarding vari ous assaults on JR. We ar e unable to evaluate wh ether the evidence for those allegations is as strong as the ev idence regarding th e offenses against SR.

6 Appellant also alleges his coun sel contacted his mother as par t of his attempt to get him to plead guilty. Even if we did not believe the defense co unsel’s explanation of the conversations with appellant ’s mother, this would not chang e the fact that telling
one’s client their chances of ac quittal are slim and the potent ial punishment is high
is not coercion.FERNANDEZ—ARMY 20160688

6 counsel that he frequently dran k to excess and h ad memory gaps. Prior to trial, the
defense counsel had con versations with appe llant regarding the requirement that he would have to believe that he was guilty or he could not plead guilty. Given the nature of appellant’s guilty plea in this case, in which he mai ntained that he had no
recollection of the eve nts but believed SR after reviewing the evidence, we find no
reason to believe that his defens e team thought h e was lying du ring the providence inquiry.

We have also considere d whether we are requi red to remand this case for a post-trial fact-finding hearing. In applyin g the framework out lined in United States

v. Ginn , 47 M.J. 236, 248 (C.A.A.F. 1997), we are mindful there are “c ircumstances
under which a DuBay hearing is required to resolve a post-trial claim that is frame d by conflicting affidavits.” United States v. Fagan , 59 M.J. 238, 241 (C.A.A.F. 2004). We conclude that no post-trial he aring is nec essary in this case.

For this analysis, Ginn sets out five factor s to consider: in this case, the issues raised by appellant are cove red by the th ird and fifth Ginn factors.

For the third Ginn factor, there is no r equirement for a post- trial hearing if th e government “either does not contes t the relevant f acts or offer s an affidavit that expressly agrees with those facts,” and the issue turns on a cl aim of legal error. 47
M.J. at 248. In this ca se, the defense coun sel’s affidavits ex pressly agree that appellant provided them with specific evidence and information to support his defense. This included, among oth er things, providing informat ion that SR was
located in a different state during most of the time period cha rged.

Critically, in their a ffidavits, the defense counsel explained they received this information, investigated the case, and still con cluded there w as a high li kelihood of
conviction based on the overall evidence. We find the defense c ounsel’s analysis to
be sound and the tactical decisions that resulted to b e reasona ble and not in error. For example, had the defense obj ected to the government’s motio n to change the date range, the milita ry judge may have fou nd it a minor change under Rule for Courts-Martial (R.C. M.) 603(c). Alternativ ely, the government could have preferred additional charges or preferre d the impacted c harges anew. See R.C.M. 603(d).

The fifth Ginn factor is also applicable to several of appellant’s claims:

[W]hen an appellate claim of ineffective representation contradicts a matter that is within the record of a guilty plea, an appellate court may decide the issue on the basis of the appellate file and reco rd (including the admissions made in the plea inquiry at tri al and appellant’s expression
of satisfaction with counsel a t trial) unless the appellant
sets forth fac ts that would rationally explain why he would
have made such statements at trial but not upon appeal.FERNANDEZ—ARMY 20160688

7 47 M.J. at 248.

Here, appellant now cla ims ineffective repr esentation. As part of his affidavit, appellant states he never believed he blacked out, b ut testified otherwise to get the benefit of his deal. Appellant d oes not, however, addr ess the specific
evidence and nuanc es related to his guilt y plea. For example, appellant made admissions in the stipulation of f act, a document which the mil itary judge went over at trial and appella nt stated was true. During his guilty plea , appellant al so provided evidence for every element of every charge. N otably, appellant did not adopt all of
SR’s or JR’s statements and inst ead rationally d escribed which ones he believed.

Overall, appellant’s affidavit does not provide a rational expl anation as to why he would have rep eatedly stated he bel ieved certain evidenc e at his trial and was not coerced into pleading guilty, but has now changed his m ind. It is not
coercion for defense counsel t o explain the ri sks, maximum puni shment, and strength of the evidence. Additi onally, appellant was represen ted by multiple attorneys: they filed motions, secured e xperts, and conducted a ppropriate preparation for a con tested trial. There i s no reason to belie ve that appellant was lying when he said he was satisfied with his representation at trial.

In this case, the mil itary judge ensured t hat appellant underst ood his rights, the elements of the charges, pote ntial defenses, and the eviden ce which supported the charges. We do not see the need for a h earing on the matte r.

CONCLUSION

On consideration of the entire r ecord, the findings of guilty a nd the sentence

are AFFIRMED.

Senior Judge MULLIGAN an d Judge FEBBO concur.

FOR THE COURT:

.

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