UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

KERN, MORAN, and ALDYKIEWICZ 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist JOHNATHAN M. JOHNSON 

United States Army, Appellant 

ARMY 20120643 

Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell 

Timothy Grammel, Military Judge 

Colonel Jeff A. Bovarnick, Staff Judge Advocate (advice and addendum) 

Lieutenant Colonel Sebastian A. Edwards (recommendation) 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Captain John L. Schriver, JA; Captain Jack D. Einhorn, JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James Varley, JA; 

Major Catherine L. Brantley, 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 his pleas, of rape of a child, indecent liberty with a child, three 

specifications of sodomy with a child under the age of twelve, five specifications of 

aggravated assault in which grievous bodily harm is intentionally inflicted upon a 

child under the age of six weeks, and child neglect, in violation of Articles 120, 128, 

and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, 928, 934 (2006 & 

Supp. I) [hereinafter “UCMJ”], respectively. The military judge sentenced appellant 

to a dishonorable discharge, confinement for thirty-eight years, and reduction to the 
JOHNSON—ARMY 20120643 

2

grade of E-1. The convening authority approved only thirty 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, appellant alleges ineffective assistance of counsel in the posttrial phase of his court-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 contemporaneously with his brief before this 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 before clemency submissions 

were due. I asked my civilian defense counsel if I could 

send a personal letter to the convening authority. 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 difference 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 few days to do a 

handwritten letter, he said that they would just submit the 

clemency submission “as is.” 

Appellant’s affidavit includes 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 efforts to obtain mental health treatment as a result of 

witnessing this abuse. 

 

1

 The convening authority also deferred automatic forfeitures until action, and, at 

action, waived those automatic forfeitures for a period of six months. Appellant was 

also credited with 196 days confinement against the sentence to confinement. 

 

2

 Given the relief in this case, we need 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 appellant in the post-trial phase of his court-martial. 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 authority. 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 apathetic 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 from the CJA office. I do not 

remember discussing the likelihood 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 submit a personal statement. I 

would never have suggested this to him or any other client 

in a similar situation. 

Ultimately, no personal statement from appellant was included in his clemency 

submissions. 

LAW AND DISCUSSION 

 We analyze claims of ineffective assistance of counsel using the two-pronged 

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

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 general prohibition against an appellate court’s ability to 

decide whether counsel’s performance was deficient when presented with material 
JOHNSON—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, these affidavits are at odds regarding why 

appellant did not submit a personal statement with his clemency submissions. 

Accordingly, we cannot decide this first prong. 

 We also cannot resolve this ineffective assistance of counsel claim on the 

second prong. See Strickland, 466 U.S. at 697 (authorizing courts to decide such 

claims on lack of prejudice without deciding whether counsel was deficient). In the 

post-trial context of ineffective assistance of counsel 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). Courts will give an appellant the benefit of the doubt and find that 

“there is material prejudice to the substantial rights of an appellant if there is an 

error and the appellant makes some colorable showing of possible prejudice. Id. 

 The government’s brief does an exemplary job in showing how most of 

appellant’s proffered personal statement would have been cumulative with other 

clemency submissions and the record of trial.4 However, the record and other 

clemency submissions do not document appellant’s purported unsuccessful efforts to 

obtain mental health treatment for the abuse he witnessed 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, 274 (C.M.A. 1983), 

we give appellant the benefit 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 than the relief we provide. Likewise, we 

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

of counsel. Considering the interests of justice and judicial economy, we order a 

new review and action. 

 

3

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

M.J. at 248. 

4

 Although the convening authority is not required to review the record of trial, Rule 

for Court-Martial 1107(b)(3)(B)(i), the convening authority expressly did so in this 

case. 
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CONCLUSION 

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

The record of trial is returned to The Judge Advocate General for a new staff judge 

advocate post-trial recommendation (SJAR) and new action by the same or a 

different convening authority in accordance with Article 60(c)-(e), UCMJ. 

Appellant should also receive a newly-appointed 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: