## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, MORAN, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JOHNAT HAN M. JOHNSON United States Army, Appellant

ARMY 20120643

Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Timothy Grammel, Military Judge

Colonel Jeff A. Bovarn ick, Staff Judge Advocat e (advice and addendum)

Lieutenant Colonel Sebastian A. Edwards (recommendation)

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Captain John L. Schriver, JA; Ca ptain Jack D. Einhorn, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James Varley, JA; Major Catherine L. Bran tley, JA (on brief).

24 June 2014

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SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to hi s pleas, of rape of a child, indecent libert y with a child, three specifications of sodomy with a child under the age of twel ve, five specif ications of aggravated assault in which grievous bodily harm is in tentionally inflicted upon a child under the age of six weeks, and child ne glect, in violation of Articles 120, 128, and 134, Uniform Code of Mi litary Justice, 10 U.S.C. §§ 920, 925, 928 , 934 (2006 & Supp. I) [hereinafter “UCMJ” ], respectively. The militar y judge senten ced appellant

to a dishonorable disc harge, confinement for thirty-ei ght years, and reduction to theJOHNSON—ARMY 20120643

2 grade of E-1. The convening authority appr oved only th irty years confinement and otherwise approved the remainder of the sentence. 1

This case is before this court for review under Article 66, UCMJ. In his sole assignment of error, appellan t alleges ineffective assistan ce of counse l in the posttrial phase of his cour t-martial. Without deciding the issue of ineffective assistance of counsel, we remand this case for a new recommendation and action. 2

BACKGROUND

In an affidavit filed cont emporaneously with his br ief before th is court, appellant alleges, inter alia :

My civilian defense counsel only called me one time after my court-martial. This phone call took place approximately two days befo re clemency submissions were due. I asked my civili an defense counsel if I could send a personal letter to the co nvening authorit y. He told

me that I could send a letter to the convening authority, but it probably would not add much to the clemency

submission or make a di fference in the convening authority’s decision whether to grant clemency. He also said there probably was not enough time to do a typed

letter but I could provide a handwritten one. When I explained that it would take me a fe w days to do a handwritten letter, he said that they wo uld just submit the clemency submission “as is.”

Appellant’s affidavit includ es some topics his personal statement allegedly would have contained, including: his remorse for his crimes; his combat experience; explanations about his relationship with his wife and children; his mental health issues resulting from his combat experience; the abuse he witnessed as a child; and his subsequent, futile effort s to obtain mental health treatment as a result of witnessing this abuse.

1 The convening author ity also deferred au tomatic forfeitures un til action, and, at action, waived those automatic forfeitures fo r a period of six m onths. Appellant was

also credited with 196 da ys confinement against the sentence to confinement.

2 Given the relief in this case, we ne ed not decide appellant’s personal submissions made pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982).JOHNSON—ARMY 20120643

3 We subsequently ordered an affidavit from the civilian defense counsel, Mr. JP, who represented appe llant in the post-trial phase of his court-mar tial. In his affidavit, Mr. JP states:

I told [appellant] he could submit a statement if he

wanted. He told me he did not want to write a statement to the convening auth ority. I told him not to worry about the format, but what was important was that he put something in. I did tell him he could hand write a statement. He seemed apathe tic and resigned. He clearly expressed that he did not want to write a statement. I do not remember any conversation about length of time for submission of the statement, because he clearly did not

want to submit a statement. There was no talk about a “looming deadline” because we were assured we could get

more time. . . . If worse came to worse, [appellant] could

have faxed us his statement fr om the CJA office. I do not remember discussing the like lihood of him being granted clemency, but if I did it was not in the context of submitting a personal statement to the convening authority. . . .

I did not tell him not to subm it a personal statement. I would never have suggested this to him or any other client

in a similar situation.

Ultimately, no personal statement from ap pellant was included in his clemency

submissions.

LAW AND DISCUSSION

We analyze claims of ineffective assi stance of counsel us ing the two-pronged

test of Strickland v. Washington , 466 U.S. 668 (1984). To establish ineffective

assistance of counse l, “an appellant must 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). However, our ability to resolve Strickland ’s performance prong is circumscribed by the genera l prohibition against an a ppellate court’s ability to decide whether counsel’s performance was deficient when presen ted with materialJOHNSON—ARMY 20120643

4 factual conflicts in competing affidavits. 3 United States v. Ginn , 47 M.J. 236 (C.A.A.F. 1997). In the case at bar, th ese affidavits are at odds regarding why appellant did not submit a personal statem ent with his clemency submissions. Accordingly, we cannot d ecide this first prong.

We also cannot resolve this ineffect ive assistance of counsel claim on the second prong. See Strickland , 466 U.S. at 697 (a uthorizing courts to decide such claims on lack of prejudice without deciding whether counsel was deficient). In the post-trial context of ineffe ctive assistance of counse l claims, the threshold for establishing prejudice is low because of the convening authority’s highly discretionary power to grant clemency. United States v. Lee , 52 M.J. 51, 53 (C.A.A.F. 1999). Co urts will give an ap pellant the benefit of the doubt an d find that “there is material prejudice to the substan tial rights of an appe llant if there is an error and the appellant makes some colo rable showing of po ssible prejudice. Id.

The government’s brief does an exem plary job in show ing how most of appellant’s proffered personal statement would have been cumulative with other clemency submissions an d the record of trial. 4 However, the record and other clemency submissions do not document appe llant’s purported unsu ccessful efforts to

obtain mental health treatment for the abuse he witnesse d as a child. Given the importance of consideration by the convening authority of a servicemember’s letter requesting clemency, cf. United States v. Siders , 15 M.J. 272, 27 4 (C.M.A. 1983), we give appellant the benefi t of the doubt and conclude that he has made some colorable showing of possible prejudice. See United States v. Wheelus , 49 M.J. 283, 289 (C.A.A.F. 1998).

Ordinarily, given the conflicting affidavits, we would order a DuBay hearing. See United States v. DuBay , 17 U.S.C.M.A. 147, 37 C.M. R. 411 (C.M.A. 1967).

Under the facts of this case , we are confident that a DuBay hearing could not possibly put appellant in a better position th an the relief we prov ide. Likewise, we

are confident there is no need to further delve into the issue of ineffective assistance

of counsel. Consid ering the interests of justice an d judicial econ omy, we order a

new review and action.

3 None of the si x exceptions to Ginn ’s general rule apply in this case. See Ginn , 47

M.J. at 248.

4 Although the convening authority is not requi red to review the reco rd of trial, Rule for Court-Martial 1107(b)(3)(B)(i), the conve ning authority expressly did so in this

case.JOHNSON—ARMY 20120643

5 CONCLUSION

The convening author ity’s initial action, dated 12 December 2012, is set aside.

The record of trial is retu rned to The Judge Advocate General fo r a new staff judge advocate post-trial recommendation (SJA R) and new action by the same or a different convening authority in accord ance with Article 60(c)-(e), UCMJ. Appellant should also receive a newly-appo inted defense counsel to assist with the preparation of his clemency matters.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: