UNITED STATES, Appellee 

v. 

Rickie E. PARRISH, Sergeant First Class 

U.S. Army, Appellant 

No. 07-0079 

Crim. App. No. 20020916 

United States Court of Appeals for the Armed Forces 

Argued October 2, 2007 

Decided December 5, 2007 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined. 

Counsel 

For Appellant: Captain Richard P. Pizur (argued); Lieutenant 

Colonel Steven C. Henricks and Captain Seth A. Director (on 

brief); Colonel John T. Phelps II, Colonel Christopher J. 

O’Brien, and Captain Fansu Ku. 

For Appellee: Captain Mark E. Goodson (argued); Major Tami L. 

Dillahunt, Major Elizabeth G. Marotta, and Captain Magdalena A. 

Acevedo (on brief). 

Military Judge: Denise K. Vowell 

This opinion is subject to revision before final publication. 
United States v. Parrish, No. 07-0079/AR 

2

Judge ERDMANN delivered the opinion of the court. 

Following a guilty plea, Sergeant First Class Rickie E. 

Parrish was convicted of sodomy with a child under twelve and 

several specifications of indecent acts with the same child. He 

was sentenced to fifteen years confinement, a dishonorable 

discharge, and reduction to E-1. On appeal to the United States 

Army Court of Criminal Appeals, Parrish argued that the 

convening authority failed to defer the adjudged reduction in 

grade pursuant to a material term of the pretrial agreement, as 

that term had been explained to him by his defense attorney. 

Relying on the fourth factor in United States v. Ginn, 47 M.J. 

236, 243 (C.A.A.F. 1997), the Court of Criminal Appeals denied 

relief without ordering an evidentiary hearing on the grounds 

that post-trial affidavits, read together and within the context 

of the record as a whole, demonstrated the improbability of 

Parrish’s assertions. United States v. Parrish, No. ARMY 

20020916, slip op. at 10-12 (A. Ct. Crim. App. Oct. 10, 2006). 

We undertook review of this case to determine whether the 

Court of Criminal Appeals correctly relied on this Ginn factor 

to resolve Parrish’s post-trial claim without an evidentiary 
United States v. Parrish, No. 07-0079/AR 

3

hearing.1 We hold that the Court of Criminal Appeals’ decision 

to resolve the issue without a post-trial evidentiary hearing 

was error. 

BACKGROUND 

 A. The adjudged reduction in Parrish’s grade 

At the time of his court-martial, Parrish was a Sergeant 

First Class E-7. His adjudged sentence included reduction in 

grade to E-1. Under Article 57(a)(1), Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 857(a)(1) (2000), an adjudged 

reduction in grade takes effect either fourteen days after the 

day that sentence is adjudged or the day on which the sentence 

is approved by convening authority action, whichever is earlier. 

The convening authority approved Parrish’s sentence 165 days 

after it was adjudged, so his reduction took effect fourteen 

days after sentencing. 

On appeal to the Court of Criminal Appeals, Parrish filed 

an affidavit asserting that his defense attorney had informed 

him that the pretrial agreement provided for a deferral of the 

reduction in grade so that his family would receive pay at the 

 

1

 The granted issue states: 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS PROPERLY 

EXERCISED ITS FACTFINDING POWER UNDER ARTICLE 66(C), 

UCMJ, IN RESOLVING THE QUESTION OF WHETHER THE 

GOVERNMENT VIOLATED A MATERIAL TERM OF APPELLANT’S 

PRETRIAL AGREEMENT DESPITE CONFLICTING AFFIDAVITS. 

65 M.J. 104, 105 (C.A.A.F. 2007). 
United States v. Parrish, No. 07-0079/AR 

4

E-7 grade until the convening authority took action. After the 

convening authority’s action, he would then receive an 

additional six months pay at the E-1 grade. Because the 

convening authority’s action did not include deferral of the 

reduction in grade, Parrish’s dependants received his pay at the 

E-1 grade rather than at the higher E-7 grade for approximately 

five months. 

Parrish’s pretrial agreement does not provide for a 

deferral of reduction in grade but does contain the following 

provision related to deferral of forfeitures: 

The convening authority agrees to disapprove any 

confinement adjudged in excess of FIFTEEN (15) 

years. The [c]onvening authority also agrees to 

defer any adjudged and statutory forfeitures 

until action and to waive statutory forfeitures 

for a period of six months at action. Any other 

lawfully adjudged punishment may be approved. 

At the court-martial the military judge reviewed the pretrial 

agreement, including the above-referenced portion, with Parrish, 

defense counsel and trial counsel. Parrish, his counsel and 

trial counsel each told the military judge the written pretrial 

agreement contained all the understandings, promises, and 

agreements between the parties, and each affirmatively 

disclaimed any unwritten agreements. They also asserted that 

the quantum portion of the pretrial agreement correctly 

memorialized the convening authority’s promises to Parrish in 

exchange for his guilty pleas. 
United States v. Parrish, No. 07-0079/AR 

5

B. Proceedings before the Court of Criminal Appeals

In Parrish’s affidavit filed with the Court of Criminal 

Appeals, he asserted that he was informed by his defense counsel 

that deferral of the reduction was accomplished by the following 

phrase in the above-referenced provision of the pretrial 

agreement: “defer adjudged and statutory forfeiture until 

action and then [waive] statutory forfeiture for six months.”2 

Parrish also asserted that his wife received the same 

explanation from the trial counsel and assistant trial counsel. 

Parrish also filed an affidavit from his wife which alleged 

that she had been told by the trial counsel that she would 

receive her husband’s pay at the E-7 grade. She further alleged 

that she had complained to trial counsel and the convening 

authority that the checks she received for her husband’s pay 

after his sentence was adjudged were not at the E-7 grade. 

Parrish also filed a letter from Staff Judge Advocate 

Colonel (COL) Mortimer Shea Jr., which was addressed to 

Parrish’s wife. Consistent with Parrish’s assertions, the 

letter acknowledged that Parrish’s wife should have received her 

husband’s pay at the E-7 grade from the date of the courtmartial until the convening authority’s action. Parrish also 

filed a follow-up letter from COL Shea’s successor in the Office 

 

2

 This assertion, if true, provides a possible explanation as to 

why Parrish did not object to the terms of the pretrial 

agreement at trial. 
United States v. Parrish, No. 07-0079/AR 

6

of the Staff Judge Advocate that was sent five months later 

explaining that COL Shea made a mistake and that the reduction 

was not deferred. 

Based on the affidavits of Parrish and his wife and the 

letter from COL Shea, the Government conceded in its responsive 

brief that there was a sub rosa agreement to defer forfeitures 

at the E-7 grade. The Court of Criminal Appeals, citing 

Parrish’s affidavit as the only document “clearly asserting that 

there was a sub rosa agreement,” declined to accept the 

Government’s concession without more evidence. United States v. 

Parrish, No. ARMY 20020916, slip op. at 2 (A. Ct. Crim. App. 

Mar. 17, 2005) (order). 

The lower court ordered the filing of additional affidavits 

from Government trial counsel, defense trial counsel, and COL 

Shea. The court asked the affiants to respond to specific 

questions concerning whether he or she made a sub rosa or 

unwritten agreement to defer the reduction in grade, whether he 

or she knew about any unwritten agreement or knew about any 

advice or promises given to Parrish and his wife that reduction 

from E-7 to E-1 would be deferred until action. The court also 

invited the submission of other evidence or affidavits that 

would address the question of whether a sub rosa or unwritten 

agreement existed. 
United States v. Parrish, No. 07-0079/AR 

7

The requested affidavits and other documents were filed. 

All of the affiants denied knowledge of a sub rosa agreement. 

The filings, however, were less consistent as to the intended 

content of the pretrial agreement. An e-mail exchange between 

Government appellate counsel and trial counsel that took place a 

few days before the Government’s initial concession was filed 

with the Court of Criminal Appeals. In the e-mails the trial 

counsel recalled that deferral of the reduction until action was 

part of the pretrial agreement. Trial counsel wrote more 

specifically, “Our thinking on the issue was that we wanted to 

minimize the impact the reduction to E-1 would have on his 

family and his daughter in particular as she was the victim in 

this case.” In trial counsel’s subsequent affidavit, however, 

he did deny the existence of a sub rosa agreement. 

Relying on the pretrial agreement, the providency inquiry, 

and the fact that Parrish’s clemency submissions did not 

complain about the E-1 grade, the Court of Criminal Appeals 

dismissed Parrish’s assertions without ordering an evidentiary 

hearing on the grounds that the “affidavits, read together and 

within the context of the record as a whole, demonstrate the 

improbability of appellant’s claim that an unwritten agreement 

existed to defer the reduction in grade until action and was a 

material term of the pretrial agreement.” Parrish, No. ARMY 

20020916, slip op. at 10-12. 
United States v. Parrish, No. 07-0079/AR 

8

ANALYSIS 

“Article 66(c) does not authorize a Court of Criminal 

Appeals to decide disputed questions of material fact pertaining 

to a post-trial claim, solely or in part on the basis of 

conflicting affidavits submitted by the parties.” United States 

v. Fagan, 59 M.J. 238, 241 (C.A.A.F. 2004) (citing Ginn, 47 M.J. 

at 243). Rather, the record of trial must be expanded through 

an evidentiary hearing conducted in accordance with United 

States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). 

In Ginn, however, the court set forth a number of factors 

under which a post-trial evidentiary hearing would not be 

required. 47 M.J. at 248. The fourth Ginn factor precludes the 

need for a DuBay hearing when the appellate filings and the 

record as a whole “compellingly demonstrate” the improbability 

of an appellant’s assertions. Id. Focusing on whether a sub 

rosa agreement existed, the Court of Criminal Appeals used the 

fourth Ginn factor to resolve the issue without a DuBay hearing.3

 

 

3

 The six factors articulated in Ginn are as follows: 

(1) 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; 

(2) 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; 

(3) 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 
United States v. Parrish, No. 07-0079/AR 

9

Whether the Army Court of Criminal Appeals correctly 

resolved Parrish’s post-trial claim without a factfinding 

hearing is a legal issue that we review de novo. United States 

v. Sales, 56 M.J. 255, 258 (C.A.A.F. 2002). We agree with the 

Court of Criminal Appeals’ conclusion that the appellate filings 

together with the record as a whole compellingly demonstrate the 

improbability of a sub rosa agreement. That conclusion, 

however, does not address the actual allegation in Parrish’s 

affidavit –- that he and his wife had been misinformed by both 

defense counsel and trial counsel as to whether the pretrial 

agreement deferred the reduction to E-1. This allegation raises 

the possibility that Parrish and the Government shared a mutual 

misunderstanding as to the terms of the agreement. 

Parrish’s affidavit clearly asserts that he and his wife 

were misinformed by his attorney and trial counsel as to the 

 

agrees with those facts, the court can proceed to decide the 

legal issue on the basis of those uncontroverted facts; 

(4) 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; 

(5) when an appellate claim 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, unless the 

appellant sets forth facts that would rationally explain why he 

would have made such statements at trial but not upon appeal; 

(6) the Court of Criminal Appeals is required to order a 

factfinding hearing only when the above-stated circumstances are 

not met. 

United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). 
United States v. Parrish, No. 07-0079/AR 

10

effect of the pretrial agreement. The affidavit does not assert 

that there was a sub rosa or unwritten agreement. Parrish’s 

wife’s affidavit asserts that she was misinformed as well and 

that she complained to the convening authority and trial counsel 

when the checks she received for her husband’s pay after his 

sentence was adjudged were not at the E-7 grade –- providing 

support for Parrish’s assertion that they had been informed that 

the reduction would be deferred. 

The e-mail exchange between the trial counsel and 

Government appellate counsel together with trial counsel’s 

subsequent affidavit reflect that the trial counsel believed at 

some point that the pretrial agreement provided for a deferral 

of the reduction. In the e-mail exchange, trial counsel 

indicated that deferral of reduction was included to minimize 

the impact that reduction would have on Parrish’s daughter, the 

victim in the case. His subsequent affidavit states in part: 

I don’t recall a specific conversation, but I may have 

told [Parrish’s wife] that [Parrish] would continue to 

receive E-7 pay for as long as possible. I say that 

because that is my recollection of what the agreement 

was to have said, and if we discussed issues of 

reductions in pay, given that English was not her 

first language, that would have been how I would have 

phrased it. 

The letter from COL Shea shows that he too was initially 

under the impression that Parrish’s pay would continue at the E7 grade until the convening authority’s action. There is also 

an affidavit from the assistant trial counsel indicating that 
United States v. Parrish, No. 07-0079/AR 

11

after court-martial, Parrish’s wife made a significant number of 

calls to the Office of the Staff Judge Advocate. Although 

assistant trial counsel states that she forwarded most of the 

calls to trial counsel or the victim-witness liaison, she thinks 

“they were all about money and reimbursement for certain 

expenses.” We note that this case is somewhat unique in that 

Government witnesses provide some support for Parrish’s actual 

assertion and that the Government attempted to concede at the 

Court of Criminal Appeals. 

This is not to say that there is not conflicting evidence 

in the record on this issue. To start, the pretrial agreement 

itself does not contain an express term covering a deferral of 

reduction in grade. In addition, the affidavit from assistant 

trial counsel, contrary to the assertions of Parrish’s wife, 

denies ever telling her that the pretrial agreement included 

deferment of reduction in grade until the convening authority’s 

action. Furthermore, COL Shea subsequently provided an 

affidavit that characterized his previous representation as 

“simply a letter that contain[ed] a mistake” and a follow-up 

letter to Parrish’s wife from COL Shea’s successor in the Office 

of the Staff Judge Advocate similarly characterizes COL Shea’s 

representation in this regard as an error. 

 Statements in the affidavits from two defense counsel also 

contradict Parrish’s assertions. The defense counsel who 
United States v. Parrish, No. 07-0079/AR 

12

handled the clemency matters averred that he does not recall 

ever talking with Parrish about an agreement to defer reduction. 

Similarly, an affidavit from the initial defense counsel denies 

ever telling Parrish or Parrish’s wife that the pretrial 

agreement included deferment of any mandatory reduction in grade 

until action. But in that same affidavit the initial defense 

counsel also averred that it was his practice to discuss the 

possibility of deferring reductions and forfeitures with his 

clients and to discuss deferment with his clients if that issue 

arose in negotiations with the Government. Notwithstanding 

Government trial counsel’s recollection that deferral of 

reduction was a consideration, the lead defense counsel does not 

recall discussing those issues with Parrish. 

 Confusion, inconsistency, and factual gaps pervade these 

appellate filings and raise questions as to their reliability, 

accuracy, and completeness. This record does not support a 

conclusion that the improbability of Parrish’s actual assertions 

has been compellingly demonstrated under the fourth Ginn factor. 

Nor do we find applicable any of the other Ginn factors which 

would allow resolution without a post-trial evidentiary hearing. 

In these circumstances, resolution of the issue requires 

factfinding: to develop the full factual scenario underlying 

Parrish’s claim that he and his wife were misinformed by both 

defense counsel and trial counsel as to the effect of the 
United States v. Parrish, No. 07-0079/AR 

13

written pretrial agreement on his pay; to consider, if 

applicable, whether deferment of reduction in grade was material 

to Parrish’s decision to enter a guilty plea; and to uncover 

whether prejudicial legal errors occurred. In this context, we 

remand for a DuBay hearing. See United States v. Sherman, 51 

M.J. 73, 76 (C.A.A.F. 1999). 

DECISION 

The decision of the United States Army Court of Criminal 

Appeals is set aside. The record of trial is returned to the 

Judge Advocate General of the Army for submission to a convening 

authority for a hearing pursuant to United States v. DuBay, 17 

C.M.A. 147, 37 C.M.R. 411 (1967), to address the facts 

underlying Parrish’s claim of error as to deferral of his 

reduction in grade. The military judge at such hearing shall 

make findings of fact and conclusions of law and then return the 

record of trial to the Court of Criminal Appeals for further 

review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). 

Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall 

apply.