## UNITED STATES ARMY COUR T 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, Militar y Judge (arraignment) Gisela Westwater, Military Judge (trial)

Colonel Andres M. Mart on, Staff Judge Advocate

For Appellant: Major Todd W. Sim pson, JA; Capta in Scott A. Mar tin, JA.

For Appellee: Lieutenant Col onel Eric K. Stafford, JA.

21 December 2018

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

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

ALDYKIEWICZ, Judge:

Appellant was co nvicted at a jud ge alone general court-martial, pursuant to his pleas, of false official sta tement, sexual a ssault, and bur glary in violation of articles 107, 120, and 129, Uniform Code of Military Justice, 1 0 U.S.C. §§ 907, 920, and 929 (2012) [U CMJ]. The court sentenc ed appellant to a dish onorable discharge, forty-two months confineme nt, and reduction to E-1. 1

1 The military judge in itially sentenced ap pellant to a bad-cond uct discharge, confinement for forty-two months, and a reduction to E-1. Afte r being advised by

the trial counsel that the sexual assault h ad a mandatory disho norable discharge associated with it, the judge “c larified” then “reconsidered” h er sentence and reannounced the sentence as previ ously adjudged, bu t this time an nouncing a dishonorable discharge. The charges exposed appellant to a max imum punishment

(continued . . .)DELA PENA—ARMY 20170534

2 Appellant submitted his case for review wit hout specific assign ments of error. Appellant personally rai sed matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), two of which c laim ineffectiv e assistance of counsel (IAC) during appellant’s guilty plea a nd sentencing p roceeding, which we will discuss. 2 In support of his claim of IAC, appellant and his wife submitted d eclarations under penalty of perjury pursuan t to 28 U.S.C. § 1746.

BACKGROUND

Factually, appellant’s case is straightforward. Appellant brok e into his neighbor’s home at night and sexua lly assaulted her. Appellant sodomized her while she was asleep or un conscious. Appellant then lied to a U.S. A rmy Criminal Investigation Command (CID) spec ial agent during the official m ilitary investigation

into his actions. 3

On 31 December 2015, at Fort Campbell, Kentu cky, appellant and his wife celebrated New Year’s Eve in their residence along with their n eighbor, Sergeant (SGT) B and her cousi n. Sergeant B lived next door to appellan t 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 th en went to bed. She clo sed the front door, but left it unlocked so that her cousin, who was still a t appellant’s re sidence, could return. Although appellant and SGT B h ad been neighbor s for approxim ately six mo nths, SGT B never spoke to appellant prior to this evening. Most notably, SGT B did not do or say

(. . . continued) of forty-five ye ars of confinement. His pretrial agreement lim ited confinement to five years.

2 In addition to his IAC claim, appellant cha llenges the military judge’s sentence reconsideration, arguing, in essence, t hat the change in puniti ve discharge from badconduct to dishonorable required a reduction in his adjudged co nfinement. While we

find error in how the sentence wa s announced, we cannot find pr ejudice when the dishonorable discharge was man datory as a matter of law.

3 Appellant’s last criminal act w as his false official statement to CID on 21 January 2016. Although not relevan t to the dispositi on of the case, we note that charges in this case were not preferred u ntil 15 Februar y 2017, 390 days a fter his last criminal act and 410 days after his assaul t of Sergeant B, a significant yet unexplained delay in what appears to b e a simple and straightforward case. While we recognize sexual

assault cases take time and a guilty plea recor d 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 t hat could reasonably lead appellant to b elieve that she would consent to any sexual activity with him.

On 1 January 2016, in the early morning h ours and before sunris e, appellant opened, without authority or perm ission, the clos ed front door of SGT B’s residence and proceeded upstairs to SGT B’s bedroom where h e found her in a deep sleep. He

sat on the bed an d after removing the cov ers, rubbed her, strok ed her buttocks,

forced her underwear down, licked her st omach, and ultimately p enetrated her vulva with his tongue.

On 21 January 201 6, when questioned by a CID special agent abou t his New Year’s Eve actions, appe llant initially lied , stating “I’ve nev er been in the house”

and “I’ve never been in her ro om,” denying any entry into SGT B ’s residence on the night in question. App ellant eventually co nfessed, admitting t o breaking into the home, entering SGT B’s bedroom, a nd sexually assaulting her.

LAW AND DISCUSSION

We write to add ress appellant’s Grostefon claim of IAC. In reaching our decision, we have co nsidered appellant’s 28 U.S.C. § 1746 decla rations. While we

note that his coun sel did not submit affi davits, 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 i n any case sim ply because

an affidavit is submit ted by an appellant. In most instances i n which an appellant

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

ineffective assistance of counsel at trial, the authority of th e Court to decide that legal issue without further proceedings should be clear.” Id . at 248. The court went on to articulate six principles 4 that guide the service co urts 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 affidavi t does not set forth specific facts but consists instead of speculative or conclusory observations, the claim may be rejec ted on that basis.

(continued . . .)DELA PENA—ARMY 20170534

4 whether to order a factfindi ng hearing as authorized by United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M .R. 411 (1967). Id

.

Ineffective assist ance claims are rev iewed “de novo.” United States v. Harpole , 77 M.J. 231, 236 (C .A.A.F. 2018). Appella nt prevails on an i neffective

assistance of counsel claim if h e demonstrates “ both ‘(1) that his counsel’s performance was deficient, and (2) that this deficiency resulte d in prejudice.’” United States v. Captain , 75 M.J. 99, 10 1 (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 a nd 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 ba sis of those uncontroverted

facts.

Fourth, if the affidavit is factua lly adequate on its face but the appellate filings and the record as a whole “compellingly demonstrate” t he improbability of those facts, the Court may discount t hose 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 ap pellate court may decide the

issue on the basis of the a ppellate file and record (including the admissions made in the plea inquiry at trial and appellant’s expression of s atisfaction 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 Ap peals 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 deci de the legal issue.

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

5 McIntosh , 74 M.J. 29 4, 295 (C.A.A.F. 2015)); s ee 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 conduc t falls within the wide range of reasonable pr ofessional assistance.’” United States v. Rose , 71 M.J. 138, 143 (C.A.A.F. 2012) (quoting Strickland , 466 U.S. at 689). “S ince counsel are presumed competent, an appellant must rebut this presumption by showing specific

errors that were unreasonable un der prevailing p rofessional nor ms.” United States v.

McConnell , 55 M.J. 479, 482 (C.A. A.F. 2001). Regarding the prejudice pr ong, appellant must show that “[b]ut for counsel’s deficient perform ance, there is a reasonable prob ability that he would not have pleaded guilty an d would have insisted on going to trial.” Rose , 71 M.J. at 143 (ci tations and quota tions omitted).

In many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistan ce challenges to convictions obtained through a trial. For example, where the alleged

error of counsel is a failure to investigate or discover potentially exculpatory evi dence, the determination whether the error “prejudice d” the defendant by causing him to plead guilty rather tha n go to trial will depend on the likelihood that discovery of the evidence would have led counsel to chang e his recommendation as to the plea. This assessment, in turn, w ill 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 defe nse 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 defens e team competen tly performed their duties, I would not have plead [ sic] guilty.” The d eficiencies appella nt relies on are as follows: (1) counsel failed to investigate exculpatory evidenc e, to wit, that SGT B told appellant’s wife that the s exual activity w as consensual a nd SGT B’s “strong

motive to fabricate the allegations,” reveng e for a prior repor t of domestic violence between SGT B and her husband; ( 2) counsel told appellant, base d on “my CID interrogation, my only op tion was to plead gu ilty or else I wou ld be sentenced to between 10 and 15 years of confine ment;” (3) counsel failed to explore and discuss with appellant a motion to “supp ress” his CID st atement conside ring he was “sleepDELA PENA—ARMY 20170534

6 deprived” during his interrogation; (4) c ounsel failed to raise , during sen tencing, appellant’s level of intoxicatio n “as an extenua ting factor” at the time of the sexual assault and burglary; and, (5) counsel failed to “negotiate for a disapproval of a dishonorable discharge.” We co nclude appellant failed to meet his burden of proof

on either Strickland prong.

A. Prejudice in a Guilty Plea

We begin our analysis with a dis cussion of prejud ice in a guilt y 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 mor e, does not establish prejudice warranting relief. “‘ A mere allegatio n by the defend ant that h e would have insisted on going t o trial is insuffici ent to establish pr ejudice.’” 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); s ee also Miller v. Champion , 262 F.3d 1066, 1072 (10th Cir. 2001) ( “mere allegation” th at defendant would h ave insisted on trial, while necessary to raise a claim of IAC linked to a guilty plea , is “ultimately

insufficient” to esta blish prejudice). It is appellant’s burde n to establish a “reasonable probability that, bu t for counsel’s errors, [the ac cused] would not have pleaded guilty and would have insisted on goi ng to trial.” Barker , 7 F.3d at 633 (citation omitted). A bald unsupport ed claim is no t sufficient to meet this standard.

B. Failure to Investigate

Assuming without deciding the trut h of appellant’s failure to i nvestigate “exculpatory evid ence” allegation, no relie f is warranted as ap pellant fails to establish any prejudi ce. Appellant acknowl edges he personally told his attorneys about the alleged excu lpatory evidence from his wife prior to e ntry of any plea. Appellant fails to sho w how his counsel’s speaking to his wife about this

information would have changed his counsel ’s advice regarding t he plea or, more importantly, his per sonal decision to plead guilty. See, e.g. , U nited States v. Buie

, 1990 U.S. App. LEXIS 27245, at *2 ( 4th Cir. 30 Ma r. 1990) (appe llant’s claim that he would not have pleaded guilt y had his attorney s discovered a n 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 w here counsel and appellant were unaware of potentially favorable evidence prior to e ntry of pleas. We fin d appellant’s claim that he would have pleade d not guilty to ring hollow when considerin g the following: (1) the inherent bias of appellant’s wife; (2) the non-compelli ng nature of SGT B’s alleged motive to fab ricate, revenge for a prior reporting of d omestic violence between SGT B and her husband; ( 3) that SGT B also told appella nt’s wife that appellant sexually assaulted her, a statement made almost conte mporaneously with the alleged “exculpatory stateme nt” and likely to be brought ou t during any cross-DELA PENA—ARMY 20170534

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

he assaulted SGT B when she wa s “asleep, unconsci ous, and other wise unaware of the sexual act;” (5) a ppellant’s detailed c onfession to CID tha t tracked his plea colloquy; and, (6) SGT B’s in-court testimony, albeit during se ntencing, that tracked

the non-consensual nature of appellant’s se xual assault.

C. Advice on How to Plead

Regarding counsel’s advice on how to plea d, we find neither def icient performance nor prej udice. Considering a ppellant’s crimes, its attendant facts and circumstances, and all evidence presented on sent encing, a sent ence of fifteen years

would have been lenient and most definitel y appropriate followi ng a guilty plea, let alone a contest. That said, appellant paints a picture regardi ng his plea that is compellingly rebutted by the record of trial , a record that une quivocally demonstrates that any decision to plead guilty was an informed decision by an

accused who was not f orced, coerced, or pre ssured to enter into his plea. Appellant knew, based on his plea alone, he could be sen tenced to a disho norable discharge, forty-five years confinement, forfeiture of all pay and allowan ces, and reduction to E-1, the same exposure he faced if he contested the charges. T he military judge asked appellant, “are you pleadi ng guilty not on ly because you hope to re ceive a lighter sentence, but also because you are c onvinced that you a re, in fact guilty?” Appellant replied, “ yes, your Honor.”

D. Motion to Suppress

Regarding appellant’s assertion o f IAC regarding his confession , specifically his inability to review the confe ssion and counsel’s alleged fa ilure to explore and discuss with him a po ssible suppress ion motion, we find no meri t. Appellant fails to articulate how a pretrial review of a confession, the contents of which he obviously knew, would have cause d him to opt for a cont ested proceeding. First, appellant, as part of his plea, waived all “wai vable” motions, a pretrial agr eement provision covered by the militar y judge during appella nt’s plea inquiry. Second, he fails to provide any evidence that any suppression motion had a ny chance , even a remote one, of succeeding. “‘When a cla im of ineffectiv e assistance o f counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable proba bility 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 In troduce Mitigating Evidence

As for counsel’s failu re to raise appellant’ s level of intoxica tion during sentencing, we note a ppellant is not claim ing counsel failed to raise a viable defense

to either his sexual assault or burglary c onviction. See, e.g.

, United States v.DELA PENA—ARMY 20170534

8 Hearn , 66 M.J. 770, 776 (Army Ct. Crim. App. 20 08) (voluntary intoxi cation 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 b e so severe as to render accused “‘incapable of fo rming the necessary intent’” (q uoting United States

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

intoxication was n ot so severe as to affect his guilt, 5 a fact borne ou t by appellant’s express disclaimer of any and a ll defenses to the charges and s pecifications in his offer to plead guilty, he fails to articulat e how counsel’s int roduction of voluntary

intoxication duri ng sentencing would not b e matter inconsistent with his guilty plea thus requiring, at the very least, reopening of the providence inquiry or at its worst, a rejection of app ellant’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 el ected a contested proceeding had he known that his i mpairment woul d not be presen ted during sentencing, impairment that lik ely would be seen as appellant m aking an excuse for

inexcusable behavior and perhaps enhancin g, vice reducing, his punishment.

F. Failure to Negotiate a Good Pre-Trial Agreement

Lastly, we find neither deficien t performance no r prejudice ste mming from appellant’s negotiated pretrial agreement. Appellant claims co unsel were deficient because they failed t o “negotiate for a dis approval of a dishon orable discharge.” Appellant, however, fails to prov ide any evidence that any gove rnment official would have supported o r even entertained s uch an offer. As pre viously noted, appellant faced a dish onorable discharge, f orty-five years conf inement, forfeiture of all pay and allowances, and re duction to E-1. His counsel nego tiated a sentence limitation of five y ears, an eighty perce nt reduction in his co nfinement exposure. Ultimately, appellant w as sentenced to forty -two months confine ment, eighteen months less than his bargained f or deal and less than eight per cent 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 presentenci ng phase of the trial, my defense team should have pres ented evidence of my l evel of intoxication as an extenuating

factor.” His Grostefon “brief” states, “Ap pellant was substa ntially impaired by alcohol.” Appellate br iefs, 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, 4 98 (6th Cir. 2012). Beyo nd the statements her ein provided, the record, to include the stipulation of fact, is silent as to app ellant’s level of

intoxication.DELA PENA—ARMY 20170534

9 Appellant sexually assaulted hi s 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 h er husband was away.

Having considered appellant’s IA C allegations su pported by decl arations, the record of trial, and Ginn principles one, two, f our, and five, we fi nd that appellant

has failed to show a reasonable probability that but for counse l’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 a ppellant’s cla im on his failure to establish prejudice obviates any need to order responsive affid avits or order a DuBay hearing. S ee United States v. Melson , 66 M.J. 346, 350-51 ( C.A.A.F. 2008) (if presumption of compete nce is overcome , appellate court “must” c ompel defense counsel to explain actions before any ineffective assistance fi nding).

CONCLUSION

The findings and sentence are AFFIRMED.

Senior Judge WOLFE and J udge SALUSSOLIA concur.

FOR THE COURT:

J OHN P. TAITT JOHN P. TAITT Acting Clerk of Court FOR THE COURT: