UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

WOLFE, SALUSSOLIA, and ALDYKIEWICZ 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class DESTRO M. DELA PENA 

United States Army, Appellant 

ARMY 20170534 

Headquarters, Fort Campbell 

Matthew Calarco, Military Judge (arraignment) 

Gisela Westwater, Military Judge (trial) 

Colonel Andres M. Marton, Staff Judge Advocate 

For Appellant: Major Todd W. Simpson, JA; Captain Scott A. Martin, JA. 

For Appellee: Lieutenant Colonel Eric K. Stafford, JA. 

21 December 2018 

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

MEMORANDUM OPINION 

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

ALDYKIEWICZ, Judge: 

Appellant was convicted at a judge alone general court-martial, pursuant to 

his pleas, of false official statement, sexual assault, and burglary in violation of 

articles 107, 120, and 129, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 920, 

and 929 (2012) [UCMJ]. The court sentenced appellant to a dishonorable discharge, 

forty-two months confinement, and reduction to E-1.1

 

 

1

 The military judge initially sentenced appellant to a bad-conduct discharge, 

confinement for forty-two months, and a reduction to E-1. After being advised by 

the trial counsel that the sexual assault had a mandatory dishonorable discharge 

associated with it, the judge “clarified” then “reconsidered” her sentence and reannounced the sentence as previously adjudged, but this time announcing a 

dishonorable discharge. The charges exposed appellant to a maximum punishment 

(continued . . .) 
DELA PENA—ARMY 20170534 

2 

Appellant submitted his case for review without specific assignments of error. 

Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982), two of which claim ineffective assistance of counsel (IAC) 

during appellant’s guilty plea and sentencing proceeding, which we will discuss.2

 In 

support of his claim of IAC, appellant and his wife submitted declarations under 

penalty of perjury pursuant to 28 U.S.C. § 1746. 

BACKGROUND 

Factually, appellant’s case is straightforward. Appellant broke into his 

neighbor’s home at night and sexually assaulted her. Appellant sodomized her while 

she was asleep or unconscious. Appellant then lied to a U.S. Army Criminal 

Investigation Command (CID) special agent during the official military investigation 

into his actions.3

 

On 31 December 2015, at Fort Campbell, Kentucky, appellant and his wife 

celebrated New Year’s Eve in their residence along with their neighbor, Sergeant 

(SGT) B and her cousin. Sergeant B lived next door to appellant and their 

residences shared a common wall. Sergeant B’s husband was out of town. Shortly 

after midnight, SGT B returned to her residence, checked on her four sleeping 

children, and then went to bed. She closed the front door, but left it unlocked so 

that her cousin, who was still at appellant’s residence, could return. Although 

appellant and SGT B had been neighbors for approximately six months, SGT B never 

spoke to appellant prior to this evening. Most notably, SGT B did not do or say 

 

(. . . continued) 

of forty-five years of confinement. His pretrial agreement limited confinement to 

five years. 

2 In addition to his IAC claim, appellant challenges the military judge’s sentence 

reconsideration, arguing, in essence, that the change in punitive discharge from badconduct to dishonorable required a reduction in his adjudged confinement. While we 

find error in how the sentence was announced, we cannot find prejudice when the 

dishonorable discharge was mandatory as a matter of law. 

3

 Appellant’s last criminal act was his false official statement to CID on 21 January 

2016. Although not relevant to the disposition of the case, we note that charges in 

this case were not preferred until 15 February 2017, 390 days after his last criminal 

act and 410 days after his assault of Sergeant B, a significant yet unexplained delay 

in what appears to be a simple and straightforward case. While we recognize sexual 

assault cases take time and a guilty plea record will often be silent as to many 

pretrial issues, we do not see how such a delay in a case such as this can enhance 

justice or convey to others confidence in the military justice system. 
DELA PENA—ARMY 20170534 

3 

anything that evening that could reasonably lead appellant to believe that she would 

consent to any sexual activity with him. 

On 1 January 2016, in the early morning hours and before sunrise, appellant 

opened, without authority or permission, the closed front door of SGT B’s residence 

and proceeded upstairs to SGT B’s bedroom where he found her in a deep sleep. He 

sat on the bed and after removing the covers, rubbed her, stroked her buttocks, 

forced her underwear down, licked her stomach, and ultimately penetrated her vulva 

with his tongue. 

On 21 January 2016, when questioned by a CID special agent about his New 

Year’s Eve actions, appellant initially lied, stating “I’ve never been in the house” 

and “I’ve never been in her room,” denying any entry into SGT B’s residence on the 

night in question. Appellant eventually confessed, admitting to breaking into the 

home, entering SGT B’s bedroom, and sexually assaulting her. 

LAW AND DISCUSSION 

 We write to address appellant’s Grostefon claim of IAC. In reaching our 

decision, we have considered appellant’s 28 U.S.C. § 1746 declarations. While we 

note that his counsel did not submit affidavits, we do not need affidavits to reach our 

decision. 

In United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997), our superior court 

noted “a post-trial evidentiary hearing . . . is not required in any case simply because 

an affidavit is submitted by an appellant. In most instances in which an appellant 

files an affidavit in the Court of Criminal Appeals making a claim such as 

ineffective assistance of counsel at trial, the authority of the Court to decide that 

legal issue without further proceedings should be clear.” Id. at 248. The court went 

on to articulate six principles4

 that guide the service courts of appeal in deciding 

 

4

 The six Ginn principles are as follows: 

First, if the facts alleged in the affidavit allege an error 

that would not result in relief even if any factual dispute 

were resolved in appellant’s favor, the claim may be 

rejected on that basis. 

Second, if the affidavit does not set forth specific facts but 

consists instead of speculative or conclusory observations, 

the claim may be rejected on that basis. 

(continued . . .) 
DELA PENA—ARMY 20170534 

4 

whether to order a factfinding hearing as authorized by United States v. DuBay, 17 

U.S.C.M.A. 147, 37 C.M.R. 411 (1967). Id. 

Ineffective assistance claims are reviewed “de novo.” United States v. 

Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018). Appellant prevails on an ineffective 

assistance of counsel claim if he demonstrates “both ‘(1) that his counsel’s 

performance was deficient, and (2) that this deficiency resulted in prejudice.’” 

United States v. Captain, 75 M.J. 99, 101 (C.A.A.F. 2016) (quoting United States v. 

 

(. . . continued) 

Third, if the affidavit is factually adequate on its face to 

state a claim of legal error and the Government either does 

not contest the relevant facts or offers an affidavit that 

expressly agrees with those facts, the court can proceed to 

decide the legal issue on the basis of those uncontroverted 

facts. 

Fourth, if the affidavit is factually adequate on its face but 

the appellate filings and the record as a whole 

“compellingly demonstrate” the improbability of those 

facts, the Court may discount those factual assertions and 

decide the legal issue. 

Fifth, when 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 record 

(including the admissions made in the plea inquiry at trial 

and appellant’s expression of satisfaction with counsel at 

trial) unless the appellant sets forth facts that would 

rationally explain why he would have made such 

statements at trial but not upon appeal. 

Sixth, the Court of Criminal Appeals is required to order a 

factfinding hearing only when the above-stated 

circumstances are not met. In such circumstances the 

court must remand the case to the trial level for a DuBay

proceeding. During appellate review of the DuBay

proceeding, the court may exercise its Article 66 

factfinding power and decide the legal issue. 

Ginn, 47 M.J. at 248. 
DELA PENA—ARMY 20170534 

5 

McIntosh, 74 M.J. 294, 295 (C.A.A.F. 2015)); see also Strickland v. Washington, 

466 U.S. 668, 687 (1984).

“With respect to the first prong, whether counsel’s performance was deficient, 

courts ‘must indulge a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.’” United States v. Rose, 71 M.J. 

138, 143 (C.A.A.F. 2012) (quoting Strickland, 466 U.S. at 689). “Since counsel are 

presumed competent, an appellant must rebut this presumption by showing specific 

errors that were unreasonable under prevailing professional norms.” United States v. 

McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001). Regarding the prejudice prong, 

appellant must show that “[b]ut for counsel’s deficient performance, there is a 

reasonable probability that he would not have pleaded guilty and would have 

insisted on going to trial.” Rose, 71 M.J. at 143 (citations and quotations omitted). 

In many guilty plea cases, the “prejudice” inquiry will 

closely resemble the inquiry engaged in by courts 

reviewing ineffective-assistance challenges to convictions 

obtained through a trial. For example, where the alleged 

error of counsel is a failure to investigate or discover 

potentially exculpatory evidence, the determination 

whether the error “prejudiced” the defendant by causing 

him to plead guilty rather than go to trial will depend on 

the likelihood that discovery of the evidence would have 

led counsel to change his recommendation as to the plea. 

This assessment, in turn, will depend in large part on a 

prediction whether the evidence likely would have 

changed the outcome of a trial. Similarly, where the 

alleged error of counsel is a failure to advise the defendant 

of a potential affirmative defense to the crime charged, the 

resolution of the “prejudice” inquiry will depend largely 

on whether the affirmative defense likely would have 

succeeded at trial. 

Hill v. Lockhart, 474 U.S. 52, 59 (1985). 

Appellant claims, “[h]ad my defense team competently performed their duties, 

I would not have plead [sic] guilty.” The deficiencies appellant relies on are as 

follows: (1) counsel failed to investigate exculpatory evidence, to wit, that SGT B 

told appellant’s wife that the sexual activity was consensual and SGT B’s “strong 

motive to fabricate the allegations,” revenge for a prior report of domestic violence 

between SGT B and her husband; (2) counsel told appellant, based on “my CID 

interrogation, my only option was to plead guilty or else I would be sentenced to 

between 10 and 15 years of confinement;” (3) counsel failed to explore and discuss 

with appellant a motion to “suppress” his CID statement considering he was “sleep 
DELA PENA—ARMY 20170534 

6 

deprived” during his interrogation; (4) counsel failed to raise, during sentencing, 

appellant’s level of intoxication “as an extenuating factor” at the time of the sexual 

assault and burglary; and, (5) counsel failed to “negotiate for a disapproval of a 

dishonorable discharge.” We conclude appellant failed to meet his burden of proof 

on either Strickland prong. 

A. Prejudice in a Guilty Plea 

We begin our analysis with a discussion of prejudice in a guilty plea. 

Appellant’s statement that “[he] would not have plead guilty,” while a prerequisite 

to making any IAC claim arising from a guilty plea, without more, does not establish 

prejudice warranting relief. “‘A mere allegation by the defendant that he would 

have insisted on going to trial is insufficient to establish prejudice.’” Barker v. 

United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting United States v. Arvanitis, 

902 F.2d 489, 494 (7th Cir. 1990); see also Miller v. Champion, 262 F.3d 1066, 

1072 (10th Cir. 2001) (“mere allegation” that defendant would have insisted on trial, 

while necessary to raise a claim of IAC linked to a guilty plea, is “ultimately 

insufficient” to establish prejudice). It is appellant’s burden to establish a 

“reasonable probability that, but for counsel’s errors, [the accused] would not have 

pleaded guilty and would have insisted on going to trial.” Barker, 7 F.3d at 633 

(citation omitted). A bald unsupported claim is not sufficient to meet this standard. 

B. Failure to Investigate 

Assuming without deciding the truth of appellant’s failure to investigate 

“exculpatory evidence” allegation, no relief is warranted as appellant fails to 

establish any prejudice. Appellant acknowledges he personally told his attorneys 

about the alleged exculpatory evidence from his wife prior to entry of any plea. 

Appellant fails to show how his counsel’s speaking to his wife about this 

information would have changed his counsel’s advice regarding the plea or, more 

importantly, his personal decision to plead guilty. See, e.g., United States v. Buie, 

1990 U.S. App. LEXIS 27245, at *2 (4th Cir. 30 Mar. 1990) (appellant’s claim that 

he would not have pleaded guilty had his attorneys discovered an alleged 

exculpatory document was without merit as appellant knew about the document at 

the time of his plea). 

Appellant’s case is not a case where counsel and appellant were unaware of 

potentially favorable evidence prior to entry of pleas. We find appellant’s claim that 

he would have pleaded not guilty to ring hollow when considering the following: 

(1) the inherent bias of appellant’s wife; (2) the non-compelling nature of SGT B’s 

alleged motive to fabricate, revenge for a prior reporting of domestic violence 

between SGT B and her husband; (3) that SGT B also told appellant’s wife that 

appellant sexually assaulted her, a statement made almost contemporaneously with 

the alleged “exculpatory statement” and likely to be brought out during any cross-
DELA PENA—ARMY 20170534 

7 

examination of appellant’s wife; (4) appellant’s detailed plea colloquy where he said 

he assaulted SGT B when she was “asleep, unconscious, and otherwise unaware of 

the sexual act;” (5) appellant’s detailed confession to CID that tracked his plea 

colloquy; and, (6) SGT B’s in-court testimony, albeit during sentencing, that tracked 

the non-consensual nature of appellant’s sexual assault. 

C. Advice on How to Plead 

Regarding counsel’s advice on how to plead, we find neither deficient 

performance nor prejudice. Considering appellant’s crimes, its attendant facts and 

circumstances, and all evidence presented on sentencing, a sentence of fifteen years 

would have been lenient and most definitely appropriate following a guilty plea, let 

alone a contest. That said, appellant paints a picture regarding his plea that is 

compellingly rebutted by the record of trial, a record that unequivocally 

demonstrates that any decision to plead guilty was an informed decision by an 

accused who was not forced, coerced, or pressured to enter into his plea. Appellant 

knew, based on his plea alone, he could be sentenced to a dishonorable discharge, 

forty-five years confinement, forfeiture of all pay and allowances, and reduction to 

E-1, the same exposure he faced if he contested the charges. The military judge 

asked appellant, “are you pleading guilty not only because you hope to receive a 

lighter sentence, but also because you are convinced that you are, in fact guilty?” 

Appellant replied, “yes, your Honor.” 

D. Motion to Suppress 

Regarding appellant’s assertion of IAC regarding his confession, specifically 

his inability to review the confession and counsel’s alleged failure to explore and 

discuss with him a possible suppression motion, we find no merit. Appellant fails to 

articulate how a pretrial review of a confession, the contents of which he obviously 

knew, would have caused him to opt for a contested proceeding. First, appellant, as 

part of his plea, waived all “waivable” motions, a pretrial agreement provision 

covered by the military judge during appellant’s plea inquiry. Second, he fails to 

provide any evidence that any suppression motion had any chance, even a remote 

one, of succeeding. “‘When a claim of ineffective assistance of counsel is premised 

on counsel’s failure to make a motion to suppress evidence, an appellant must show 

that there is a reasonable probability that such a motion would have been 

meritorious.’” United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001) 

(quoting United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997)). 

E. Failure to Introduce Mitigating Evidence 

As for counsel’s failure to raise appellant’s level of intoxication during 

sentencing, we note appellant is not claiming counsel failed to raise a viable defense 

to either his sexual assault or burglary conviction. See, e.g., United States v. 
DELA PENA—ARMY 20170534 

8 

Hearn, 66 M.J. 770, 776 (Army Ct. Crim. App. 2008) (voluntary intoxication may 

refute specific intent mens rea element of an offense); United States v. Peterson, 47 

M.J. 231, 233-234 (C.A.A.F. 1997) (level of intoxication must be so severe as to 

render accused “‘incapable of forming the necessary intent’” (quoting United States 

v. Box, 28 M.J. 584, 585 (A.C.M.R. 1989)). Assuming appellant’s level of 

intoxication was not so severe as to affect his guilt,5 a fact borne out by appellant’s 

express disclaimer of any and all defenses to the charges and specifications in his 

offer to plead guilty, he fails to articulate how counsel’s introduction of voluntary 

intoxication during sentencing would not be matter inconsistent with his guilty plea 

thus requiring, at the very least, reopening of the providence inquiry or at its worst, 

a rejection of appellant’s plea. See, e.g., United States v. Moon, 73 M.J. 382, 386 

(C.A.A.F. 2014); United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). 

More importantly, appellant fails to show that he would have elected a contested 

proceeding had he known that his impairment would not be presented during 

sentencing, impairment that likely would be seen as appellant making an excuse for 

inexcusable behavior and perhaps enhancing, vice reducing, his punishment. 

F. Failure to Negotiate a Good Pre-Trial Agreement 

Lastly, we find neither deficient performance nor prejudice stemming from 

appellant’s negotiated pretrial agreement. Appellant claims counsel were deficient 

because they failed to “negotiate for a disapproval of a dishonorable discharge.” 

Appellant, however, fails to provide any evidence that any government official 

would have supported or even entertained such an offer. As previously noted, 

appellant faced a dishonorable discharge, forty-five years confinement, forfeiture of 

all pay and allowances, and reduction to E-1. His counsel negotiated a sentence 

limitation of five years, an eighty percent reduction in his confinement exposure. 

Ultimately, appellant was sentenced to forty-two months confinement, eighteen 

months less than his bargained for deal and less than eight percent of his maximum 

exposure. 

 

5

 Appellant’s 28 U.S.C. § 1746 declaration states, “On the night of the alleged 

incident, I was intoxicated. During the presentencing phase of the trial, my defense 

team should have presented evidence of my level of intoxication as an extenuating 

factor.” His Grostefon “brief” states, “Appellant was substantially impaired by 

alcohol.” Appellate briefs, and statements contained therein, are not evidence. See, 

e.g., United States v. Lewis, 42 M.J. 1, 4 (C.A.A.F. 1995) (factual assertions in 

pleadings are not evidence); United States v. Griffin, NMCCA 200201471, 2007 

CCA LEXIS 565, at *13 (N.M. Ct. Crim. App. 20 Dec. 2007); Travaglio v. Am. 

Express Co., 735 F.3d 1266, 1270 (11th Cir. 2013); Taylor v. First Med. Mgmt., 508 

Fed. Appx. 488, 498 (6th Cir. 2012). Beyond the statements herein provided, the 

record, to include the stipulation of fact, is silent as to appellant’s level of 

intoxication. 
DELA PENA—ARMY 20170534 

9 

Appellant sexually assaulted his neighbor, a woman with whom he first spoke 

the night he assaulted her, an assault he committed by breaking into her home, at 

night, while her four children slept and her husband was away. 

Having considered appellant’s IAC allegations supported by declarations, the 

record of trial, and Ginn principles one, two, four, and five, we find that appellant 

has failed to show a reasonable probability that but for counsel’s alleged errors he 

would have insisted on going to trial, thus failing to meet his burden to establish 

prejudice warranting relief. Our resolution of appellant’s claim on his failure to 

establish prejudice obviates any need to order responsive affidavits or order a DuBay

hearing. See United States v. Melson, 66 M.J. 346, 350-51 (C.A.A.F. 2008) (if 

presumption of competence is overcome, appellate court “must” compel defense 

counsel to explain actions before any ineffective assistance finding). 

 

CONCLUSION 

 The findings and sentence are AFFIRMED. 

 Senior Judge WOLFE and Judge SALUSSOLIA concur. 

FOR THE COURT: 

 JOHN P. TAITT 

JOHN P. TAITT 

Acting Clerk of Court 

FOR THE COURT: