UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class JASPER C. BROOKS III

United States Air Force

ACM 38245

13 March 2014

Sentence adjudged 17 October 201 2 by G CM convened at Al Dhafra Air

Base , United Arab Emirates

. Military Judge: Dawn R. Eflein (sitting alone)

.

Approved S entence: Bad

- conduct discharge, confinement for 8 months

, forfeiture of all pay and allowances, and reduction to E

- 1

.

Appellate Counsel for the Appellant: Lieutenant Colonel Jane E. Boomer

.

Appellate Counsel for the United States: Colonel Don M. Christensen ; Lieutenant Colonel C. Taylor Smith; Major Daniel J. B reen; Captain

Matthew J. Neil ; and Gerald R. Bruce, Esquire

.

Before

HELGET, WEBER , and PELOQUIN Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before final release

.

P ELOQUIN , Judge :

Consistent with his pleas, the appellant was convicted by a military judge sitting as a general court

- martial of one specification of failure to obey a lawful general order ; two specifications of making a false official statement ; two specifications of unlawful sexual

contact ; one specification of assault ; and one specification of unlawful entry

, in violation

of Article s 92, 107, 120, 128, and 134, UCMJ, 10 U.S.C. § § 892, 907, 920, 928, 934. 1

1 The appellant was also charged with burglary

, in violation of Article 129, UCMJ, 10 U.S.C. § 929. This charge was withdrawn and dismissed after arraignment in accordance with the terms of a pretrial agre ement.ACM 38245 2 The adjudged sentence consisted of a bad

- conduct discharge, confinement for 10 months, forfeiture of all pay and allowances, and reduction to E

- 1. Pursuant to a pretrial
agreement (PTA)

, the convening authority app roved only 8 months of confinement and the rest of the sentence as adjudged . On appeal, the appellant asserts two errors: (1) H e was denied the effective assistance of counsel; and (2) T he two Article 120 , UCMJ, specifications amounted to an unreasonable multiplication of charges. 2 Finding no error that materially prejudices the appellant, we affirm.

Background

The appellant was a Security Forces airman in a deployed location. A lawf ul

General Order was in effect that prohibited individuals from visit ing the quarters of an individual of the opposite gender except for official purposes or with commander approval. On 22 June 2012, S enior Airman (S rA ) AB , a female, was alone in her dormitory room and asleep on her bed. T he appellant, a male, entered her room without

authorization and crawled onto her bed

. Sh e woke up when he touched her inner thigh

with his hand. H e then rubbed his penis on her thigh. SrA AB told the appellant to stop and to get out of her room , and he left

. SrA AB text

- messaged one of her roommates to inform her that she had just been woken up by someone on top of her on her bed.

SrA AB’s chain of command was notified of the incident , and M aster Sergeant (MSgt) OT interviewed the appellant. The appellant denied ever being in SrA AB ’s

room or on her bed. Later, S taff Sergeant (S Sgt ) MT, a Security Forces investigator, interviewed the appellant. The appellant admitted to entering SrA AB’s room on 22 June 2012, climbing onto her bed, touching her thigh

, and attempting to kiss her li ps and neck. H e denied rubbing his penis on SrA AB but acknowledged that his penis would have been on SrA AB given the position he had taken lying on top of her.

On 12 August 2012, the appellant visited SrA LB, a nother Security Forces airman

, at her guar d post. While there, the appellant placed his hand on SrA LB’s leg without her

consent. S he removed h is hand from her leg. The appellant then placed his head in his hands and laid his hands and head in SrA LB’s lap. Again, she removed the appellant

fro m contact with her. Subsequently, SrA LB moved to a different guard post. The appellant visited SrA LB at this guard post and again touched her leg. She again

removed his hand and told him

, “No

. ” The appellant then gestured to SrA LB

, inviting

her to s it on his lap. S he declined. As s he left the guard post to repair a piece of equipment, the appellant grabbed her hand as she walked past him . SrA LB pulled away and proceeded to her task.

At trial, the appellant pled guilty pursuant to a P T A and agr eed to a Stipulation of

Fact which laid out the facts and circumstances relevant to his criminal actions.

2 The appellant raises this assignment of error pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982).ACM 38245 3 Assistance of Counsel

The appellant contends his trial defense counsel provided ineffective assistance of counsel by not abiding by the appellant’s desires to submit matters in clemency for consideration by the convening authority.

We review de novo claims of ineffective assistance of counsel. United States v. Bradley , 71 M.J. 13, 16 (C.A.A.F. 2012) ( citing United States v. Gooch , 69 M.J. 353, 3 62 (C.A.A.F. 2011) ). Claims of ineffective assistance of counsel are reviewed by applying

the two

- pronged test set forth by the Supreme Court in Strickland v. Washington

, 466 U.S. 668, 687 (1984). See United States v. Green , 68 M.J. 360, 361

- 62 (C.A.A.F. 2010). In order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice. Id. ( citing Strickland , 466 U.S. at 687 ) . “[T]he defense 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) . The Sixth Amendment 3 right to effective assi stance of counsel extends to assistance in the preparation and submission of post

- trial matters. United States v. Gilley , 56 M.J. 113, 124 (C.A.A.F. 2001) ( citing United States v. Fluellen , 40 M.J. 96, 98 (C.M.A. 1994) ). Where there are opposing affidavi ts raising a factual dispute that is material to the resolution of the appellant’s assignment of error, we can resolve the appellant’s claim without a fact

- finding hearing when the appellate filings and the record as a whole compellingly demonstrate the im probability of the facts alleged by the appellant. United States v. Ginn , 47 M.J. 236, 244

- 45, 248 (C.A.A.F. 1997).

There is no need for a fact

- finding hearing in this case. The record of trial and the appellate filings do not support the factual pre mise raised by the appellant in his affidavit. In his affidavit, the appellant suggests trial defense counsel did not contact or consult

with him prior to submitting matters in clemency and that as a result, the appellant was precluded from submitting his own letter and letters from supporters to the convening authority. The appellant’s recollection is at odds with trial defense counsel’s affidavit. Trial defense counsel recalls several discussions with the appellant regarding clemency

, the probability o f clemency in light of the PTA they had struck with the G overnment, and the appellant’s clemency goal of avoiding a punitive discharge. Trial defense counsel recalls speaking with the appellant on 15 November 2012 while the appellant was in

confinement an d prior to trial defense counsel submitting his clemency memorandum on 2 December 2012. There was no discussion of submitting any matters in addition to trial defense counsel’s memorandum. In early January 2013, after clemency matters were due, the appel lant contacted trial defense counsel and discussed the appellant’s revised clemency focus of early release from confinement. Finally , the appellant’s current

3 U.S. C ONST

. a mend. VI.ACM 38245 4 recollection is at odds with his unsworn statement at trial

, where he told the military judge

, “I would request that

– I will take anything

– any kind of punishment as long as it wasn’t a punitive discharge.”

The record and the appellate submissions support the trial defense counsel’s

recollection of events and discussions

, which provide the most p lausible chain of events given the appellant’s statement at trial, the generous terms of the PTA , and the trial
defense counsel’s records.

Turning to Strickland ’s second prong, we further find that, even if trial defense counsel’s actions were lacking, t he appellant has failed to show he suffered any prejudice. The appellant failed to demonstrate what he would have presented to the convening authority and how such submissions may have altered the convening authority’s decision. The a ppellant contends he would have presented a letter from himself and letters from supporters but has not provided any inkling as to what persuasive information those letters might contain. In the absence of such specific information, we cannot even speculate as to what impact these supposed memoranda could possibly make. The appellant has failed to demonstrate any basis for finding prejudice. See
United States v. Perez , 64 M.J. 239, 244 (C.A.A.F. 2007)

.

Unreasonable Multiplication of Charges for Findings

Rule for Courts

- Martial 307 ( c)(4) addresses unreasonable multiplication and provides , “ What is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person

. ” A military judge ’ s decision to deny relief for un reasonable multiplication of charges is reviewed for an abuse of

discretion

. United States v. Pauling , 60 M.J. 91, 95 (C.A.A.F. 2004) . In United States v. Quiroz , 55 M.J. 334, 338 (C.A.A.F. 2001)

, our superior c ourt endorsed five , non

exclusive factors appropriate for us to consider when review ing unreasonable multiplication of charges claims : (1) w hether the appellant objected at trial; (2) w hether each charge and specification is aimed at distinctly separate c riminal acts; (3) w hether the number of charges and specifications misrepresent or exaggerate the accused ’ s criminality; (4) w hether the number of charges and specifications unreasonably increase

the accused ’ s punitive exposure ; and (5) w hether there is an y evidence of prosecutorial overreaching or abuse in the drafting of the charges. Th e se factors, though not exclusive, have subsequently been reaffirmed. See , e.g. , United States v. Campbell , 71 M.J. 19, 24 (C.A.A.F. 2012).

The appellant contends that the specifications against him for wrongful sexual

contact and abusive sexual contact constitute an unreasonable multiplication of charges. In the absence of any objection at trial, w e turn to Quiroz ’s second factor and find that each of the specification s address distinctly separate criminal acts. The abusive sexual contact specification referenced a touching that occurred while the victim was asleep andACM 38245 5 required

, as a n element

, that the victim was substantially incapable of appraising the

nature of the sexual contact

. See M anual for C ourts

- M

artial ( MCM

) , United States

, A 28

- 8 , ¶ 45. b

. (8)(c)(iii) (2012 ed.)

. The wrongful sexual contact specification addressed the appellant’s sexual contact with the victim while she was awake , without requiring, as

an el ement, that the victim was substantially incapable of appraising the nature of the

sexual contact

. See MCM , A28

- 9, ¶ 45.b.(13). The physical acts addressed in these two specifications are individual, discrete actions, and the contexts within which each

t ouching occurred provide significantly different bas e s for demonstrating lack of consent.

We then turn to the issue of waiver. The appellant did not object at trial to the wrongful sexual contact and abusive sexual contact specifications and pled guilty to each

of them as drafted

, in accordance with the terms of his PTA . In United States v. Craig

, 68 M.J. 399

, 400 ( C.A.A.F. 2010)

, an appellant pled unconditionally to a charge and its specifications

, agreeing to waiv e all waivable motions as part of a PT A

. Our superior

court determined such a plea waived multiplicity claims on appeal unless the charged offenses were facially duplicative. Id. ( citing United States v. Campbell , 68 M.J. 217 (C.A.A.F. 2009) ). Similarly in this case, the appellant pled unco nditionally to the charges and specifications, agree ing in his PTA to “[w]aive all waivable motions.” As

the complained offenses are not facially duplicative, we conclude that the appellant’s unconditional guilty plea , coupled with the terms of his PTA , w aived his right to have this unreasonable multiplication of charges issue reviewed at the appellate court level.

See also United States v. Gladue , 67 M.J. 311, 314 (C.A.A.F. 2009)

.

We find the complained of specifications do not constitute an unreasonabl e multiplication of charges; that the appellant waived his right to appeal this matter; and that the military judge, far from abusing her discretion, acted with commendable judicial expertise in her rulings. 4

Conclusion

The approved findings and sentenc e are correct in law and fact and no error materially prejudicial to the substantial rights of the appellant occurred. 5 Article s 59(a)

4 At trial, the military judge merged the abusive sexual contact and wrongful sexual contact specifications f or purposes of sentencing

, thereby reducing the appellant’s punitive exposure.

5 The Air Force Form 1359, Report of Result of Trial, inaccurately indicates the appellant pled guilty to, and was found guilty of, Charge IV. That said, the form’s annotation regarding the specification of Charge IV is accurate in that it records the appellant’s not guilty plea and it properly annotates that the specification was withdrawn and dismissed. Likewise, the court

- martial order (CMO) accurately reflects the result of trial to include the dismissal of Charge IV. We find this post

- trial processing error to be administrative in nature, and of no prejudice to the appellant. Nevertheless, we note the CMO does not identify recipients of unexpurgated versus expurgated copi es of

the CMO, as required by Air Force Instruction (AFI) 51

- 201, Administration of Military Justice , ¶ 10.7.1 (21 December 2007) ( “ To avoid confusion between the recipients

. . . mark the addressees of those who are to receive the unexpurgated copies wit h asterisks

. . . and add, below the distribution list, ‘ Recipients of unexpurgated

CMO. ’”) See also AFI 51

- 201, ¶ 10.7. 1 ( 6 June 2013). Accordingly, we order promulgation of a corrected CMO.ACM 38245 6 and 66 (c) , UCMJ , 10 U.S.C. §§ 859(a), 866(c) . Accordingly, the approved findings and

sentence are

AFFIRMED

.

FOR THE COURT

STEVE N LUCAS

Clerk of the Court