## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 PATRICK T. WILLBARGER United States Army, Appellant

ARMY 20091026

Headquarters, III Co rps and Fort Hood Gregory Gross, M ilitary Judge Colonel Stuart W. Risch, Sta ff Judge Advocate (pretrial)
Lieutenant Colonel Anth ony T. Febbo, Acting Staff Judge Advocate (recommendation) Colonel Stuart W. Risch, St aff Judge Advoca te (addendum)

For Appellant: Lieutena nt Colonel Imogene Jamison, JA; Major Jacob D. Bashore, JA; Captain Kristin McGrory, JA (on brief).

For Appellee: Major Amber J. Roach, JA; Major LaJohnn e A. White, JA; Captain Julie A. Glascott, JA (on brief).

26 December 2012

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

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

ALDYKIEWICZ, Judge:

A military judge, sitting as a special court-martia l, convicted appellant, pursuant to his pleas, of two specifications of absence without leave (AWOL) in violation of Article 86, Unif orm Code of Military Justice, 10 U.S.C. § 886 (2006) [hereinafter UCMJ]. Contra ry to appellant’s pleas, th e military judge convicted him of failing to go to his ap pointed place of duty, two specifications of willfully disobeying a superior commissioned officer, being disrespectful in language towards a noncommissioned officer, and two specifications of making a false official
statement in violation of Ar ticles 86, 90, 91, 107, UCMJ, 10 U.S. C. §§ 886, 890, 891, 907 (2006). The convening author ity approved the adjudge d sentence of a badconduct discharge, confinement for five months, and forfeiture of $933.00 pay per

month for five months. Th e appellant was credited with forty-two days of confinement against the sentence to confinement.WILLBARGER

— ARMY 20091026

2 Appellant’s case is now be fore this court for review under Article 66, UCMJ. He raises one assignment of error that warrants discussion but no relief, that “appellant was denied effectiv e assistance of counsel in the post-trial phase of his
court-martial when his trial defense counse l failed to timely s ubmit appellant’s 1105 matters in a timely manner.” * Although not raised as an assignment of error, appellant also complains, via a footnote in his written submission before this court, about the delay in th e post-trial processing of his ca se. While not a model of posttrial processing, we find no relief is warranted. Finally, with regard to the two false official statement findings of guilt, we find that the eviden ce was legally and factually sufficient to sustain a conviction for part of the statem ents alleged in the specifications, but not the statements as alleged in their entirety. We shall take
corrective action in our decretal paragraph affirm ing only so much of the specification as matches the evid ence presented at trial.

BACKGROUND

Appellant was tried and convicted on 12 November 2009. At trial, he was represented by Captai n (CPT) BG, appellant’s detailed defense counsel. The written post-trial and appellat e rights form design ated CPT BG as the defense counsel to receive the staff judge advoca te’s post-trial recommendati on (SJAR) as well as a copy of the authenticated re cord of trial for post-trial purposes. On 1 February 2010, eighty-two days after announcement of the sentence in his case, appellant completed his confinement. The SJAR was co mpleted on 24 March 2010 and served
on CPT BG on 26 March 2010. On 6 April 2010, CPT BG requested a twenty day delay to submit post-trial matters, a request approved by the acting staff judge advocate on 14 April 2010. Post-trial matters were due on 25 April 2010. Between 25 April 2010 and 8 Septembe r 2010, the government cont acted CPT BG on no less than four occasions seeking a status on appellant’s post-trial submissions or to provide CPT BG with inform ation to assist him in co ntacting his c lient. On 8 September 2010, CPT BG advise d the Fort Hood office of the staff judge advocate
Criminal Law Division that he would no longer be representing ap pellant due to his change in active duty stat us. However, several weeks later, on 21 September 2010, CPT BG reversed his positio n, advising the Criminal Law Division that he could continue to represent appellant in his capacity as a U.S. Army Reserve judge advocate. On or about 3 December 2010, fo r reasons undeveloped in the record, new defense counsel, CPT ZB, was de tailed to represen t appellant. On 20 January 2011, CPT ZB requested an additional twenty day delay to submit post-trial matters. On 15 February 2011, 461 days following announ cement of the sentence, CPT ZB submitted post-trial ma tters on behalf of appellant, matters consisti ng of a threepage defense memorandum with one enclosure, a three-page letter from appellant. Ten days later, on 25 Febr uary 2011, the conv ening authority, after considering appellant’s post-trial submissi on, took action in the case.

* We note that appellant’s alle gation of error is unsupported by eith er affidavit or a declaration made under penalty of perjury.WILLBARGER

— ARMY 20091026

3 LAW AND DISCUSSION

1. Ineffective Assistance of Counsel

“[T]he military accu sed has the right to the effe ctive assistance of counsel during the pretrial, trial, and post-trial stages” of his court-martial. United States v.
Hicks , 47 M.J. 90, 92 (C .A.A.F. 1997) (citing United States v. Carter , 40 M.J. 102, 105 (C.M.A. 1994); United States v. Fluellen , 40 M.J. 96, 98 (C.M.A. 1994)). Whether appellant received e ffective assistance of couns el is reviewed de novo. United States v. Mazza , 67 M.J. 470, 474 (C.A.A.F. 2009). “In assessing the
effectiveness of coun sel we apply the standard set forth in Strickland v. Washington

, 466 U.S. 668, 687 (1 984), and begin with the presumption of co mpetence announced
in United States v. Cronic , 466 U.S. 6 48, 658 (1984).” United States v. Gooch , 69 M.J. 353, 361 (C.A.A.F. 2011 ). To overcome the pres umption of competence, the
Strickland standard requires appellant to demonstrat e “both (1) that his counsel's performance was deficient, and (2) that th is deficiency result ed in prejudice.” United

States v. Green , 68 M.J. 360, 361 (C .A.A.F. 2010) (citing Strickland , 466 U.S. at 687). If we conclude that appellan t fails to satisfy one prong of the Strickland test, we need not analyze appellant's showing on the remaining prong. Strickland , 466 U.S. at 697; United States v. McConnell , 55 M.J. 479, 481 (C.A.A.F. 2001).

Under the facts of this ca se, we find appellant suffe red no prejudice from the delayed submission of post-tr ial matters and therefore we need not address whether counsel’s performance was defici ent. Appellant’s filing before this court claims the delay in submitting post-t rial matters denied him the opportunity to seek “meaningful and timely relief from his sentence. ” Appellant also alleges difficulty in finding employment becaus e of the post-trial delay in his case, which was due largely as a result of the timing of defense counsel’s submission of Ru le for CourtsMartial [hereinafter R.C.M. ] 1105 matters. Appellant’s post -trial submission, submitted 461 days following tr ial, requested disa pproval of the pun itive discharge, or alternatively, disa pproval of the adjudg ed forfeitures. Af ter fully considering appellant’s submission, the co nvening authority, the same convening authority that referred appellant’s ca se, approved the sent ence as adjudged.

Appellant received a full and fair opportunity to have his clemency matters considered by a convening authority w hose options regarding clemency were unaffected by the dela yed receipt of R.C. M. 1105 matters. See e.g.

, United States v.

Travis , 66 M.J. 301, 304 (C.A.A.F . 2008) (no prejud ice where eviden ce establishes convening authority fully, fa irly, and in accorda nce with law considered appellant’s clemency matters notwithstand ing that his consideration oc curred over one year after completion of trial). Regarding appell ant’s purported diffi culty in finding employment, we find appellant’s allegati on mere speculation unsupported by any
evidence and not amoun ting to prejudice. See United States v. Allende , 66 M.J. 142, 145 (C.A.A.F. 2008) (appellant's affidavit that he was deni ed employment as a result of inability to obtain timely discharge certificate, Depart ment of Defe nse Form 214WILLBARGER

— ARMY 20091026

4 (DD 214), without more is insufficient to establish prejudice); Cf. United States v.

Jones , 61 M.J. 80 (C.A.A.F. 2005) (prej udice established by submission of unrebutted affidavits from pot ential employer that appell ant's ability to apply for employment limited and/or precluded because of a lack of a DD 214).

2. Post-Trial Processing

While not raised as an assignment of error, appe llant’s brief raises, via a footnote, dilatory post-trial processing separate and apart from the issue of
ineffective assistance of coun sel, requesting “meaningful relief or a new SJAR and Action.” Having considered United States v. Moreno , 63 M.J. 129 (C.A.A.F. 2006)
and the four factors of Barker v. Wingo , 407 U.S. 514 (1972) in assessing whether the delay violated appellant’s due process rights, we find no due process violation and no prejudice. Addition ally, considering th is court’s sentence appropriateness authority under Article 66(c ), UCMJ, and its authority to grant relief despite the absence of prejudice, United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2002), we
find no relief is warrant ed in appellant’s case.

3. Factual Sufficiency

Article 66(c), UCMJ, requires this co urt to conduct a de novo review of the legal and factual suffici ency of the evidence. United States v. Gilchrist , 61 M.J. 785, 793 (Army. Ct. Crim. Ap p. 2005) (citation omitted) . The test for legal sufficiency is “whether, considering the ev idence in the light mo st favorable to the prosecution, a reasonab le factfinder could have foun d all the essential elements beyond a reason able doubt.” United States v. Lubasky , 68 M.J. 260, 263 (C.A.A.F. 2010) (citations omitted). The test for factual suffici ency is “whether, after weighing the evidence of re cord and making allowances for not having personally
observed the witnesse s, [this court is] convinced of appell ant’s guilt beyond a
reasonable doubt.” Gilchrist , 61 M.J. at 793 (citation om itted). Our review of the
record reveals the evidence is factually insufficient to support the fi nding for the two false official statement specifications as written, but not in sufficient to support findings by exceptions. Appropriate action to modify the findings, by exceptions, to comport with the evidence presented sha ll be taken in our decretal paragraph.

CONCLUSION

On consideration of the entire record and the written pleadi ngs of the parties, to include appellant’s assigned error as we ll as the error rais ed via footnote to appellant’s brief, we find the assertions of error to be wit hout merit. With regard to Specification 1 of Charge V, we affirm only so much of the finding of guilty as finds that appellant “did, at or near Fort Hood, Texas, on or about 31 August 2009, with intent to deceive, make to SGT [LM] an offi cial statement, to wit: he needed to get a blood test, which statement was totally false and was th en known by [appellant] to be so false.” With regard to Specification 2 of Charge V, we affi rm only so much ofWILLBARGER

— ARMY 20091026

5 the finding of guilty as finds that appellant “did, at or near Fort Hood, Texas, on or about 31 August 2009, with intent to deceive, make to SGT [SR] an official statement, to wit: he was going to the de ntist, which statement was totally false and was then known by [appellant] to be so false.” Th e remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the errors noted, the entire record, and in accordance with the principles of 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 identified by Judge Baker in his concurring opinion in Moffeit , we are confident that appellant would have received a sentence at least as seve re as that adjudged. The
sentence is affirmed.

Senior Judge KERN and Judge MARTIN concur.

FOR THE COURT:

MALCOLM H. SQUIRES JR.
Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: