## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, CAMPANELLA, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JUVENT INO TOVARCHAVEZ United States Army, Appellant

ARMY 20150250

Headquarters, 8th Theate r Sustainment Command Gregory A. Gross, Military Judge Colonel Anthony T. Febbo, Staff Judge Advocate (pretrial and recommendation)
Lieutenant Colonel LaJohnne A.W. Morris , Acting Staff Judge Advocate (addendum)

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Ryan Yoder, JA; Major Brian J. Sullivan, JA (on brief); Captain Ryan Yoder, JA; Major Brian J. Sullivan, JA (reply brief) ; Lieutenant Colonel Melissa R. Covolesky, JA; Captain Ryan Yoder, JA; Major Brian J. Sullivan, JA (on brief in response to specified issues); Lieutenant Colonel Carrier, JA; Captain Cody Cheek, JA; Major Brian J. Sullivan, JA (reply brie f to specified issues).

For Appellee: Li eutenant Colonel A.G. Courie III, JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on brief); Major Michael E. Korte, JA; Captain Christopher A. Cl ausen, JA (on brief in respon se to specified issues).

7 September 2017

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

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

Charged with sexually assa ulting his fellow soldier Specialist (SPC) JR on two separate occasions, an enlisted panel of a general court-martial convictedTOVARCHAVEZ—ARMY 20150250

2 appellant only of the latter instance. 1 Appellant collaterally attacks his conviction
and claims his counsel we re ineffective at trial. 2 Because the affi davits submitted by the parties contain material differences in fact that we cannot resolve on appeal, we
remand the case for a hearing pursuant to United States v. DuBay , 17 U.S.C.M.A. 147, 37 C.M.R. 411 ( 1967). Appellan t also raises two assi gnments of legal error directly attacking the fi ndings. Both merit disc ussion, but not relief.

The case is before us for review und er Article 66, UCMJ. The convening authority approved th e adjudged sentence to a dishonorable discharge, confinement for two years, total forfei ture of pay and allowances , and reduction to E-1.

LAW AND DISCUSSION

A. Ineffective Assistance of Counsel

Appellant alleges hi s defense counsel were defici ent in cross-examining SPC JR and that this deficiency resulted in the panel finding hi m guilty. Appellant specifically asserts, as part of the assigned er ror, that the civ ilian defense counsel (CDC) even admitted his ineffectiv eness. The gover nment disagrees.

1. May this court consider un sworn unauthenti cated matter?

Appellant relies on a printed email signed by “Don” from 520508[####]@yzwplx.com that was included in appella nt’s Rules for CourtsMartial [hereinafter R.C.M.] 1105 matters. Appella nt asserts the email is from appellant’s civilian defense counsel to ap pellant’s military de fense counsel. The
date on the email in dicates it was sent shortly after trial.

1 Appellant was charged with two specific ations of sexual assa ult in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 92 0 (2012 & Supp. I 2014) [hereinafter UCMJ].

2 Pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), appellant asserts the evidence is factually and legally insufficient to sustai n a conviction. We disagree. Appellant also as ks us to consider the issu es of post-trial delay and
ineffective assistance of coun sel raised in his post-trial matters. We find the posttrial delay in this ca se did not rise to the level of a due process violation and does not warrant relief. Appellant’ s ineffective assistance of c ounsel claims raised in his post-trial matters overlap with his assignment of error an d sworn declaration. While we specifically address seve ral of these claims, the Dubay court may consider all the factual and legal bases for appellant’s clai ms of ineffective as sistance of counsel upon remand.TOVARCHAVEZ—ARMY 20150250

3 The substance of the email read s in its entiret y as follows:

[M], re Tovar appeal: I screwed up crossing CW. 3 I, alone
was ineffective. Let’s talk how best to present issues on appeal, including pretrial is sues. Even th ough I think I came out on top on all pretri al issues, my methodology can help lay the foundation for ineffective assistance crossing CW and reversal. Let’s talk [M ]onday. Don’t want to drag you into it, but [I] lost re spect for the military 40 years ago, so I’m not concer ned with reversal for ineffective assistance. FYI, not sour grapes, I received an honorable discharg e at 21, 4 years serv ice, E5. I served very honorably, but what I witnessed was a disgrace. My bad for not being timely prep ared. I believed battle stations were [T]ues day, not [M]onday.

Appellant also asks us to consider an unsworn memo randum for record (MFR) by appellant’s post-t rial defense counsel summarizing a conversation with the civilian defense counsel. (App ellant appears to have been assigned new post-trial counsel). The MFR recounts a conversation between m ilitary counsel and civilian
defense counsel that oc curred two to three m onths prior to the date of the MFR. The substantive paragraphs of the MFR are as follows:

2. During this conv ersation [the CDC] told me he was ineffective in representing PVT Tovar-Chavez because he failed to cross[-]examine the vi ctim effectivel y. He went on to say it was his first military tria l and he did not
realize the victim would take th e stand the first day. As a result, he did not have any notes from her Article 32 testimony with him and was completely unprepared to proceed. Additionally, he di d not have the Article 32 testimony transcribed.

3. He did not ask the Mi litary Judge fo r a delay.

3 In his brief, appellant notes that “CW” are not the initials of the victim or any other witness in the case. Ap pellant suggests that this misnaming of the victim is further evidence that the CDC was unprepare d for trial. Given the context, we are
certain that CW is an abbreviation for “com plaining witness.” Ev en in his affidavit
to this court submitted on appeal, the CDC continues to use “CW” to refer to the
victim.TOVARCHAVEZ—ARMY 20150250

4 Both parties on appeal also ask us to consider the audi o recording of the Article 32, UCMJ, prel iminary hearing. Presumably, this is a reference to a CD included in the allied papers labeled “US v. Tovarchavez I.O. copy.” No one has authenticated the audio recording or claime d that it is an ac curate and complete recording of the hearing.

In resolving the issue of in effective assistance of coun sel presently before this court, we note that both pa rties ask us to re ly on unauthenticat ed matter that is attached to the record of trial. That is, e ach party asks us to assume the authenticity of matter that, if it had been admitted at trial, would require at least some foundation. Indeed, as the Article 32, UCMJ, hearing o ccurred before the military judge was detailed to the case, and the R.C.M. 1105 matters we re submitted after authentication, the military judge likely co uld not (even if asked) authenticate that such matters “accurately report[] the pr oceedings.” R.C.M. 1104(a)(1). The military judge did not “pre side” over a proceeding in which these matters were considered. R.C.M. 1104(a)(2). The partie s on appeal have no t stipulated to the authenticity of the documents. Further, ne ither party on appeal filed a motion for us
to consider the documents.

In United States v. Cade , 75 M.J. 923, 928 (Army Ct. Crim. App. 2016) we
defined what is th e “record of trial on appeal.” We f ound the Pres ident had answered this questio n when he defined the “contents” of the record of trial in R.C.M. 1103(b)(2). Id. Allied documents an d other matter “attached” to the record of trial are not part of the record of trial. Id. ; See R.C.M. 1103(b)(3). Neither the military judge nor an yone else has certified or auth enticated matters “attached” to the record as being accurate. See R.C.M. 1104. In Cade , we required that matter
from outside the record of trial must be sw orn by someone with personal knowledge.
75 M.J. at 930.

The problem with consider ing unsworn unauthenticated matter that was never subjected to adversarial testin g should be o bvious. Both parties (and recently crime victims) have broad authority to unilaterally attach matters to the reco rd of trial (the
accused in his submis sion of R.C.M. 1105 matters and the government in assembling the record and determining which allied papers to include). See R.C.M. 1103(b)(1). The Military Rules of Eviden ce do not–in the main–apply to submission of matters at Article 32, UCMJ, hearin gs or in post-trial. See Military Rule of Evidence 1101. Absent a stipulation by the parties, matter s ubmitted to the cour t for consideration that is not part of the authenticated record of trial should be accompanied by a sworn
declaration that the matter is what a party says it is.

Confusion on this issue perhaps stems from the fact that this court does consider post-trial matters in determining the appropriateness of the sentence. Our superior court has clearly said so. See United States v. Boone , 49 M.J. 187, 192 (C.A.A.F. 1998). To forestal l needless motion practice, our local rules allow for anTOVARCHAVEZ—ARMY 20150250

5 appellant to request in th e appellant’s brief that we consider the post-trial submissions. However, our sentence appropriateness revi ew is a separate endeavor
from our determination of whet her there was legal or factual error in the tr ial. “It is inappropriate to base an appellate op inion on assertions dehors the record.” United
States v. Matthews , 68 M.J. 29, 41 (C.A .A.F. 2009) (citing United States v. Crouch

, 566 F.2d 1311, 1316 (5th Cir. 1 978) (internal ellipses omi tted)). For example, an appellant could rightly cry fo ul if we were to affirm a finding as correct in law because (at least in part) of a factual assertion made in a crime victim’s submission
under R.C.M. 1105A.

However, Boone itself distinguishes between Courts of Crim inal Appeals’ review of sentences as being appropriat e and determinations as to whether the findings and sentence are correct in law a nd fact. 49 M.J. at 193. The Court of Appeals for the Armed Forces (CAAF) stated that “[w]e have reco gnized that there are legitimate an d salutary reasons for the now-Court of Criminal Appeals to have
the discretion to obtain evid ence by affidavit, te stimony, stipulation, or a factfinding hearing, as it deem s appropriate.” Id . Except for a stipul ation (which requires agreement by both parties), at each instance listed by the CAAF the matter appears to be coming to the court by wa y of oath or sworn declaration.

Thus, our superior court has not required post-tri al hearings to resolve conflicting accounts created by unsworn submissions. See United States v. Lofton

, 69 M.J. 386, 391 (C.A.A.F. 201 1) (convening authority no t required to order posttrial hearings based on unswor n unsubstantiated statements).

Likewise, while we do not do ubt the integrit y of counsel, 4 our superior court
has made it clear that we cannot consider court filings to be th e equivalent of sworn
declarations. United States v. Lewis , 42 M.J. 1, 4 (C.A.A.F . 1995) (“The question
remains whether th e Army court erred by treating de fense counsel’s motion as the “functional equivalent” of an affidavit. We hold that it was error . . . .”). That is, even assuming that appellate c ounsel had personally verified in their briefs that the allied papers they wish us to consider are what they sa y they are, we cannot treat a brief as if it we re an affidavit.

Normally, we need not remand for fact finding based on co nflicts created by
an unsworn unauthen ticated document. See United Stat es v. Gunderman , 67 M.J.

4 Here, this is not merely a technicality as the CDC appe ars to dispute the accuracy
of some of the words attributed to him in the R.C.M. 1105 matters – at least in part. The government submitted a sworn affidavit from the CDC. The CD C stated that the matter quoted in appellant’s brief was not a ve rbatim recitation of what he had said. That is, to some greater or lesser extent he appears to dispute the accuracy of the
words attributed to him in the email or the MFR.TOVARCHAVEZ—ARMY 20150250

6 683 (Army Ct. Crim. App. 2009). However, for unrelated reason s discussed below,
we remand this case for fa ctfinding. Accordingly, while we have significant concerns that the parties view the record on appeal differently than we do, for reasons of judicial ec onomy it is best to di spose of these concer ns by wrapping them
into a DuBay hearing where these issues can be addressed by the trial court.

2. Was counsel ineffe ctive for failing to cross-exam ine SPC JR on prior statements?

Setting aside the issues raised by a ppellant in reliance on the unsworn matters, appellant also submitted a sworn personal af fidavit. In the affidavit, appellant asserts he had three post-assault conversations with SPC JR in which she made exculpating statements.

First, appellant asserts that the day after the offense of which he stands
convicted he had a Facebook conversation with SPC JR. He asserts that in the conversation SPC JR affirmatively stated sh e was not upset by appellant’s conduct. Rather, she stated she wa s upset because she had ch eated on her boyfriend. Appellant states he told hi s defense counsel a bout this conv ersation but his counsel “never sought a copy of th is online conversation from me, from SPC JR, or from Facebook directly.”

Appellant’s counsel respond s that the conversation in question would have “corroborated [SPC JR’s] allegations of ra pe and would not have been prudent to introduce into the trial.” Although unstated directly, we infer from this statement
that the CDC had discussed th e Facebook exchange with appellant. However, and citing to his trial notes, th e CDC averred that his pretri al discovery fo und that the
Facebook conversation had been deleted. He also disagrees with the substance of
the conversation and states that the panel would have in ferred rape from SPC JR’s statement that she was upset.

The affidavits both agre e that appellant and hi s counsel di scussed the
Facebook conversation. The CD C also agrees with appellan t’s assertions that he had not expected to cross-examine SPC JR on the first day of tr ial. The affidavits part ways on 1) whether the CDC attempted to get a copy of the Facebook conversation; 2) whether the conver sation was deleted; and 3) what was sa id in the Facebook
conversation.

We are not allowed to ma ke credibility determin ations on the basis of conflicting affidavits when resolving collat eral claims of ineffective assistance of
counsel. United States v. Ginn , 47 M.J. 236, 243 (C.A.A.F. 1997).

In Ginn , the CAAF outlined five principles to guide this court when to order a factfinding hearing. Id. at 248. Most on point is the first, which stated that “if the facts alleged in the affidavit allege an error that would not result in relief even ifTOVARCHAVEZ—ARMY 20150250

7 any factual dispute were resolv ed in appellant’s favor, th e claim may be rejected on
that basis.” Id.

Here, we cannot determine one way or the other whet her, assuming appellant’s factual assertions are true, appellant received effective assistance of counsel. Accordingly, a factfinding hear ing is necessary. To prevent extended appellate process, to ensure appellant’s claims of error are given adequate consideration, and for reasons of judicial economy, we direct a DuBay hearing to make appropriate factual and legal determinations on appellant’s claim of ineffective assistance of counsel gene rally. That is, while th is one disput e regarding a
Facebook conversation is what necessitates a fa ctfinding hearing, the DuBay court may consider all the factual and legal base s for appellant’s claims of ineffective
assistance of counsel.

B. Mistake of Fact

Appellant asked the panel for an instruction on the defe nse of mistake of fact. The military judge denied the request. Accord ingly, any error is preserved for appeal.

A military judge has an affirmative du ty to instruct on special defenses reasonably raised by the evidence. R.C.M. 920(e)(3). “The test for determining
whether an affirmative defense of mistake of fact has been ra ised is whether the
record contains some evidence of an ho nest and reasonable mi stake to which the
members could have attached cred it if they had so desired.” United States v.
Hibbard , 58 M.J. 71, 75 (C.A.A.F . 2003). Put different ly, an instruction on a defense is not required if no reasonable panel member could find the defense applicable. United States v. Schumacher , 70 M.J. 387, 38 9-90 (C.A.A.F. 2011) (stating that the test is similar to the test for legal sufficiency).

After making verbal and non-verbal rejections of appellant’s advances SPC JR testified to an aggressive struggle on her bed. As appellant tried to pull SPC JR’s sweat pants off, SPC JR pulle d them back up. This con tinued for some time, until appellant overpowered SPC JR . He then assau lted her by putting his penis in her vagina. When done, appell ant refused to get off SPC JR until she kissed him.

Appellant did not testify. Accordingly, the only evidence regarding the
assault came from SPC JR. There were no “mixed messages” from which a mistake
of fact could occur. See United Stat es v. DiPaola , 67 M.J. 98, 102 (C.A.A.F. 2008).
There is no evidence to whic h the members could have atta ched credit that there was
a reasonable mistake of fact as to consent. Th e assault described by SPC JR was, in every which way, object ively non-consensual.TOVARCHAVEZ—ARMY 20150250

8 Additionally, we find no evidence appell ant honestly posses sed an innocent state of mind. We recently addressed this issue in United States v. Kelly , where we
said:

An accused is not required to testify to establish a mistake
of fact defense. United States v. Jones , 49 M.J. 85, 91 (C.A.A.F. 1999). Ho wever, to warrant an instruction on
the mistake of fact defense there must be “some evidence
of an honest and reasonable mistake to which the members
could have attached credit if they had so desired.” United
States v. Hibbard , 58 M.J. 71, 75 (C.A.A.F. 2003).

In other words, there is no per se requirement an accused testify to establish a mistake of fact defense, but evidence the accused honestly and reas onably believed the victim
had consented must come fr om somewhere. In many cases, the only source of ad missible evidence about the accused’s subjective belief th e victim consented may well
be from the accused himself.

M.J. , 2017 CCA LEXIS 453, at *30-31 (Army Ct. Crim. App. 5 Jul. 2017).

To be clear, we agree with appellant that there need no t be direct evidence of
an honest belief. Just as the government often proves an accused’s in tent to commit an offense by inference, the defense can establish some evidence of an honest mistake of fact to consent by inference. See Dep’t of Army, Pam 27-9, Legal Services: Military Judges’ Benchbook, para. 7-3, n. 2 (10 Sept. 2014). Here, appellant points us to numerous pre-a ssault interactions between SPC JR and appellant, to include the conduct that was charged, but of which appellant was acquitted. Looking at the evidence in a ligh t most favorable to appellant, one could infer that on the day of th e assault appellant went to SPC JR’s barracks room honestly believing they might engage in consensual interc ourse. However, once in the room and being rebuffed both verbally and non-verbal ly, the reason ableness of the inference disappears. That is, as the evidence wa s that SPC JR manifestly rejected appellant’s a dvances, at the time of the offense there was no evidence that appellant honestly believed she was consenting or th at such a belief would be
reasonable.

C. United States v. Hills

The military judge ga ve the panel in this case an instruction that was for all substantive purposes identical to the instruction that the CAAF found to be error in
United States v. Hills , 75 M.J. 350 (C.A.A.F. 2016)

. However, although discussedTOVARCHAVEZ—ARMY 20150250

9 more than once, trial defe nse counsel offered no objection to th e instruction and ultimately stated he had “no objection” to the instruction.

We specified the issue of whether appellant forfeited or waived any objection
to the instructions when he stated he had no objection to the instruction he now challenges on appeal. In United States v. Hoffman , we determined a statement of “no objection” to instruc tions that are challenged on appeal constitutes an
affirmative waiver of the issue. M.J. , 2017 CCA LEXIS 42 5, at *15 (Army Ct. Crim. App. 27 Jun. 2017). We ci ted the Fourth Circuit in United States v. Smith , for the proposition that a statement of “no ob jection” is an “int entional relinquishment
or abandonment of a known right.” No. 97-4904, 1998 U.S. App. LEXIS 22673, at *3-4 (4th Cir. Sep. 16, 1998). Citing almost every circuit co urt of appeals we stated that “[a]bsent evidence to th e contrary, we pres ume that counsel are competent under Strickland v. Washington , 466 U.S. 668, 690 (1984), thus defense counsel stating that he or she has “no objection ” is a purposef ul decision.” Hoffman , M.J. , 2017 CCA LEXIS 425, at *15.

This case is perhaps distinguishable from Hoffman. Hoffman involved several additional opportunities for the accused to obj ect to the erra nt instruction, to include written motions practice. Id . at *18-20. Our decision in Hoffman was conditioned on that being a case “where a ppellant ‘was fully aware of the [issue], and he had numerous opportunities to contest its admission and use.’” Id. (citing United States v. Swift , 76 M.J. 210, 217 (C.A.A.F. 2017)).

However, we need not deci de whether the issue was waived because even if
the issue was not waived we still would not find plain error. Appellant has not met
his burden of establishi ng material prejudice to a substantial right. United States v. Paige , 67 M.J. 442, 449 (C.A.A.F . 2009) (To establish plai n error, appellant must show: (1) an error was committed; (2) the er ror was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights).

Appellant argues that beca use any error violated ap pellant’s presumption of
innocence and right to be conv icted only by proof beyond a reasonable doubt, the error materially prejudiced appellant’s subs tantial rights. The first two subparts of appellant’s brief on prejudice ad dress the gravity of the error.

In our view, this misunder stands our prejudice analys is. A prejudice analysis is separate from the find ing of error. As the Supreme Court stated in Puckett v.
United States :

Any trial error can be said to impair substantial rights if
the harm is defined as “being convicted at a trial tainted with [fill-in-the-blank ] error.” Nor does the fact that there is a “protected liberty intere st” at stake render this caseTOVARCHAVEZ—ARMY 20150250

10 different. That interest is always at stake in criminal cases. Eliminating the thir d plain-error prong through semantics makes a nullity of Olano ’s instruction that a defendant normally “must make a specific showing of prejudice” in order to obtain relief.

556 U.S. 129, 142 (2009 ) (internal citations omitte d, bracketed language in original). In other words, absent structural error, proof of error does not ipso facto prove prejudice. If it did, our plain error test would be effectively reduced to only two prongs. If a Hills error were structural, we presume our superior court would have so stated, given the st rong presumption agai nst structural errors, and further would not have bothered to test for prejudice in that case, which it did. 75 M.J. at
358.

Appellant also argues that this case was not strong. The eviden ce consisted of the credible testimony of SPC JR as well as post-a ssault apologies that the government successfully presented as evidence of consciousness of guilt. Appellant correctly notes the lack of corroborating physical or forensic evidence.

Our understanding of the proper framework for determining prejudice for
Hills violations continues to de velop as we consider ea ch new case. A candid
review of our cases consideri ng the matter shows a progressi on in our anal yses as we consider the facts of each new case and absorb bindin g and persuasive authority from our superior an d sister courts. See Hoffman , M.J. , 2017 CCA LEXIS 425, at *12-13 (surveying recent decisions of Hills violations). For this panel, we have viewed the danger from an improper propen sity instruction to be greatest when issues of propensity are clearly at play.

In United States v. Guardado , we found a low likelihood of prejud ice because
the evidence that the accused had committed the other misconduct was not credible. 75 M.J. 889 (Army Ct. Crim. App. 2016), pet. granted, 76 M.J. 166 (C.A.A.F. 2017). “The likelihood of pr ejudice from propensit y evidence is greate st when the evidence
is solid and credible. In other words, weak evidence offered to show propensity poses less danger of contributing to the verdict.” Id. at 898.

Similarly in United States v. Moore , this panel was presented with a case in which there was substantial evidence as to one offense, but less convincing evidence
as to the other offenses . ARMY 20140875, 2017 CCA LEX IS 191 (Army Ct. Crim. App. 23 Mar. 2017), pe t. granted, 76 M.J. , 2 017 CAAF LEXIS 630 (C.A.A.F. 22 June 2017) (order). We assessed that such a situation created a danger that strong evidence of one offense may bleed over to prove the offenses for which the evidence was not so strong. Id . at *10-14. Accordingly, we set aside all but the one offense.
Id.TOVARCHAVEZ—ARMY 20150250

11 In United States v. Denson , we set aside all the subj ect offenses because of concerns about propensity. ARMY 20150137, 2017 CCA LEXIS 564 (Army Ct. Cr. App. 18 Aug. 2017). In that case, the gover nment presented evid ence that several charged victims were assaulted in a manner that was arguably similar. An improper propensity inference was a rational response to these facts. Id. at *3-5. In such a case, an instruction that tells a panel they may infer that which there may have been a natural instinct to do anyw ay compounds the danger of an improper instruction.

Most importantly, however, ou r analysis of prejudice for Hills violations is framed by the appellate post ure of the issue on appeal. 5 In cases of preserved error, the burden falls on the government and th e burden is proof of harmlessness beyond a
reasonable doubt. Hills , 75 M.J. at 357. In cases of unpreserved error, the burden is on appellant to show material pr ejudice to a subs tantial right. Hoffman , M.J. , 2017 CCA LEXIS 425, at *30-31.

Here, we cannot find a specific showing of prej udice in a case where propensity was not argued or discussed. Indeed, the absenc e of an objection by the defense and argument by the trial counsel is indicative of the low impact of propensity at the trial.

For the reasons stated in Hoffman we find appellant has met the first two prongs of a plain error analysis and has demonstr ated that the Hills instruction in
this case was obvious error. Id. at *26-30. We, however, do not find ap pellant has met his burden of establishing prejudice , and therefore do no t find plain error.

CONCLUSION

In light of this court’s in ability to resolve the conflicting affidavits presented on appeal, the record of trial is returned to The Judge Advocate General for such action as is required to conduct a DuBay hearing on whether trial defense counsel were ineffective in their repres entation of appe llant at trial.

As noted in our discussion , although the need for a DuBay hearing primarily results from the conflicting affidavits of appellant and his civilian de fense counsel regarding the Face book conversation between SPC JR and appellant, the DuBay military judge shall consider all of appella nt’s claims of ineff ective assistance of counsel. However, th e military judge is re quired to consider on ly those claims of ineffective assistance of counsel that have already specifically been identified by appellant’s briefs, Grostefon materials, and sworn affidavi t. The Clerk of Court is

5 In Guardado and Moore we treated the Hills issue as preserve d based upon the government’s concession or the parties frami ng of the issue. Guardado , 75 M.J. at 905; Moore , 2017 CCA LEXIS 191, at *6.TOVARCHAVEZ—ARMY 20150250

12 directed to provide a copy of these materials to the DuBay judge. The military judge at the hearing will make fi ndings of fact and conclusi ons of law as appropriate.

Upon conclusion of the DuBay hearing, the record will be returned to this
court for further review.

Senior Judge MULLIGAN and Se nior Judge CAMP ANELLA concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: