OTERO ( ARMY 20080708

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

TOZZI, HAM, and SIMS

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Specialist ROMAN L. OTERO**

**United States Army, Appellant**

ARMY 20080708

Headquarters, National Training Center and Fort Irwin

John Head, Military Judge

Lieutenant Colonel F. Dean Raab, Staff Judge Advocate 

For Appellant:  Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley Voorhees, JA; Captain Shay Stanford, JA (on brief); Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley Voorhees, JA; Captain Shay Stanford, JA (on supplemental brief). 

For Appellee:  Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha Foss, JA; Major Lisa L. Gumbs, JA; Captain Benjamin M. Owens-Filice, JA (on brief and supplemental brief).

17 February 2010

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SUMMARY DISPOSITION

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TOZZI, Chief Judge:

On consideration of the entire record, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence are AFFIRMED.

Judge SIMS concurs.

HAM, Judge, concurring in the result:

I concur that appellant is not entitled to relief.

Pursuant to his pleas, appellant was convicted by a military judge sitting as a general court-martial, of one specification of wrongful possession of child pornography in violation of 18 U.S.C. §2252A, such conduct being prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces, Article 134, Uniform Code of Military Justice, 10 U.S.C. §934.  The military judge sentenced appellant to be discharged from the service with a bad-conduct discharge, confined for twelve months, and reduced to the grade of E-1.  The convening authority approved the adjudged sentence.

Appellant alleges, *inter alia*, his trial defense counsel provided ineffective assistance of counsel when he advised appellant to plead guilty to possession of child pornography knowing the “videos purported to contain child pornography could not be viewed because they were scrambled.”  Appellant submitted a sworn affidavit, stating his trial defense counsel “talked to CID [Criminal Investigation Command] agents . . . to verify what was on the DVDs . . . .  [Trial defense counsel] was told by the agent involved that the DVDs were scrambled.”  Appellant claimed his trial defense counsel “never explained the importance of this information and how it could affect my plea to possession of child pornography.  We never discussed the possibility of pleading to attempted possession of child pornography.”

In order to prove prejudice for an ineffective assistance of counsel claim in this context, appellant must show “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”  *United States v. Alves*, 53 M.J. 286, 289 (C.A.A.F. 2000) (quoting *Hill v. Lockhart*, 474 U.S. 52, 59 (1985)).  *See also United States v. Osheskie*, 63 M.J. 432, 434 (C.A.A.F. 2006).

Appellant’s affidavit does not even assert that he would have changed his plea in this case.  In the absence of such an allegation, his claim is “legally inadequate.”  *United States v. Ginn*, 47 M.J. 236, 247 (C.A.A.F. 1997).  “More importantly, he has not alleged and the record does not show that there *was a**reasonable probability* that he would have changed his plea to not guilty if his defense counsel had” further investigated the images on the DVDs.  *Id.*  Accordingly, even assuming, *arguendo*,**that his trial defense counsel’s performance was deficient, appellant is not entitled to relief.  *See also United States v. Tippit*, 65 M.J. 69, 77, 80-81 (C.A.A.F. 2007).

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

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