## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, TELLITOCCI, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant RAS HAD J. VALMONT United States Army, Appellant

ARMY 20110644

Headquarters, 3rd Infantry Division and Fort Stewart James L. Pohl, Military Judge Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Capt ain A. Jason Nef, JA; Captain James S. Trieschmann, Jr., JA (on brief); Colonel Ke vin M. Boyle, JA;

Lieutenant Colonel Jonathan F. Potter, JA; Major Am y E. Nieman, JA; Captain James S. Trieschmann, Jr., JA (on supplemental brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Capt ain Steve T. Nam, JA (on brief).

22 October 2014

--------------------------------- OPINION OF THE COURT

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

COOK, Senior Judge:

A panel composed of office r and enlisted members s itting as a ge neral courtmartial convicted appellant, contrary to his plea, of premeditated murder, in violation of Article 118(1) , Uniform Code of Military Justice, 10 U.S.C. § 918 (2006) [hereinafter UCMJ]. The panel sentenced appellant to a dishonorable discharge, confinem ent for life without the possibility of parole, forfei ture of all pay and allowances, and reducti on to the grad e of E-1. Th e convening authority (CA) approved the adjudged sent ence and granted 407 days of confinement credit.

Appellant’s case is now be fore us for review pursua nt to Article 66, UCMJ.

In his initial brief to this court, appellant raised two assignments of er ror, neither of which merits discussion or relief. Appellan t also personally raised matters pursuant

to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). We have reviewed theseVALMONT— ARMY 20110644

2 matters and they do not merit discussion or relief. In his supplemental brief to this court, appellant raises two ad ditional assignments of error, 1 both of which merit

discussion but not relief.

FACTS

Background

On 17 June 2010 at Fort Gillem, Georgi a, appellant walked into the office of his supervisor, Master Sergeant (MSG) PM , and shot him six times. Appellant’s

shots struck MSG PM in the head, torso and arm, killing him almost immediately. After fatally shooting MSG PM , appellant left MSG PM’s of fice, exited the building, got into his car and drove to a local civilian police station. He then turned himself in to a civilian police officer , informing the officer he had just shot someone at Fort

Gillem.

The evidence linking appellant to the s hooting of MSG PM wa s extensive. In addition to appellant’s incriminating statement to law enforcement, eyewitnesses of the killing identified appellant as the s hooter. Ballistics analysis confirmed appellant’s pistol, recovered from his car, was the weapon used to kill MSG PM, and lab analysis revealed MSG PM’s blood on appe llant’s clothing.

The government establis hed appellant’s motive , and ultimately his premeditation, for shooti ng MSG PM stemmed from ad verse personnel actions recently taken against appell ant. In addition to tes timony from surviving members of appellant’s chain of command that detailed these ac tions and MSG PM’s role in

1 Additional As signment of Error I

APPELLANT WAS DENIED HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

WHEN DEFENSE COUNSEL DID NOT REASONABLY INFORM [APPELLANT] OF PLEA NEGOTIATIONS

AND INCORRECTLY ADVISED HIM THAT THE

CONVENING AUTHORITY WAS ONLY LEGALLY

ABLE TO OFFER A MINIMU M OF LIFE WITHOUT

PAROLE.

Additional Assign ment of Error II

THE UNLAWFUL COMMAND INFLUENCE MOTION WAS NOT WAIVED, AND IF IT WAS WAIVED, THE

WAIVER RESULTED FROM INEFFECTIVE

ASSISTANCE OF COUNSEL.VALMONT— ARMY 20110644

3 them, multiple witnesses heard appellant st ate after he shot MS G PM, “I’m tired of them fucking with me .”

As conceded by appellant’s trial defense counsel du ring his opening statement, “Staff Sergeant Valmont did s hoot [MSG PM]. The defense does not contest any of that.” What appellant and his defense team contes ted was the level of appellant’s mental re sponsibility when he shot MSG PM.

Basically, appellant’s defe nse was twofold. First, appellant proffered he was suffering from a severe mental disease or defect at th e time of the sh ooting, namely

delirium. Because of this condition, he was unable to appreciate th e nature and quality or wrongfulness of his conduct and was therefor e not guilty of murder by

reason of lack of mental re sponsibility. Seco nd, the defense em ployed a partial mental responsibility th eory and argued, in the alternat ive, that appe llant committed the shooting without premeditation and therefore was only guilty of the lesser

included offense of unpremeditated murder or volunt ary manslaughter. Underlying

both defenses was the theme that the toxi c nature of appellan t’s command climate was a major factor in causing appellant, in a fit of rage and with out premeditation, to

kill MSG PM.

After the government intr oduced its evidence, appella nt, in his case-in-chief,

offered the results of the second Board conv ened to inquire into appellant’s mental condition pursuant to Rule fo r Courts-Martial [hereinafter R.C.M.] 706 [hereinafter Board] and the testimony of Dr . JC (Commander, U.S. Navy) , an expert in forensic psychiatry and a member of appellant’s seco nd Board. Unlike the results of his first Board, this second Board found appellant was sufferi ng from the severe mental

disease of delirium at the time of the shooting. As found in the second Board’s report and as testifie d to by multiple witnesses at tr ial, appellant ha d recently been attempting to lose a signif icant amount of body fat in orde r to attend a military

course. The second Board concluded the recen t weight loss and accompanying dehydration was a likely physiological “insul t” that led to appell ant’s delirium.

Testimony regarding ap pellant’s attempts to lose weight prio r to the shooting

and the chain of command’s in sistence on appellan t attaining a body fat percentage 3% less than the Army standard as a course prerequisite consumed quite a bit of time

at trial. The defense used this evidence to not only support th e delirium diagnosis

but to also show that the command’s effo rts to enforce an arbitrary and drastic standard were proof the co mmand environment was “toxic.” Ultimately, the defense strategy was to blame the command climate in general and appellant’s first-line supervisor—Sergeant First Class (SFC) TM—i n particular, for dr iving appellant to “madness” and causing MSG PM ’s death. Appellant also called Dr. ES (Captain, U.S. Navy), an expert in fo rensic psychiatry, as a witness. Dr. ES’s testimony was

used to bolster the second Board’s diagnosis and th e reputation of its members and

to also criticize how the first Board was conduct ed.VALMONT— ARMY 20110644

4 Although the second Board found appellant was suffer ing from delirium at the time of the shooting, it al so found appellant “retained the ability to appreciate the nature and quality and wr ongfulness of his actions at th e time of the offenses despite impairment due to deliri um.” This conclusion was highlighted during the government’s cross-examination of Dr. JC. Defense attemp ted to address this issue through the testim ony of appellant’s co-workers concerning his demeanor on the day of the shooting. These witnes ses testified, in general, that appellant did not appear

to be himself before th e shooting.

In its rebuttal, the go vernment called the doctor who conducte d the first Board, Dr. BL, an expert in forensic and clinical psycholo gy. Dr. BL testified that he did not diagnose appellan t as suffering from any seve re mental disorder at the time of the shooting, to in clude delirium, and refuted th e delirium diagnosis reached by the second Board. The govern ment also called Dr. GS to testify as an expert in general and forensic psychiatry. Dr. GS te stified that he disagreed with the second Board’s diagnosis that appellant suffered from delirium at the ti me of the shooting and agreed with Dr. BL’s diagnosis. In addition, the government call ed other coworkers who interacted with appellant on th e day of the shooting and found nothing out of the ordinary wi th his actions before the shooting.

A. Ineffective Assi stance of Counsel

The gist of appellant’s first additional assignment of error is that he was denied his right to effective assistance of counsel based on co unsel’s failures with respect to pretrial ne gotiations. Specifically, in the affidavit appellant submitted in support of his suppleme ntal brief to this c ourt, he alleges:

Near the time after the [prefe rral] of charges against me occurred, I met with my orig inal civilian defense counsel, Mr. [WC]. I was informed th at the governmen t was willing to limit my confinement [to] 50 years if I pled guilty. However, when th is offer was explaine d to me, Mr. [WC] never explained to me the mechanics of pa role or how good-conduct time served could decrease the actual confinement I might have to serve.

After this one vague initial discussion, I rele ased Mr. [WC]

and retained new civilian defe nse counsel. Al though I asked them about possible deals to plead guilty, they never

informed me of such disc ussions with th e government. I asked them about a thirty y ear or forty year confinement cap. My new counse l informed me that if I plead guilty to murder, the statutory minimum was confinement for life withVALMONT— ARMY 20110644

5 eligibility for parole. Thus, the only deal th ey could even approach the government with was life with the possibility of parole.

In addition to my counsel informing me of the minimum confinement sentence, after my R.C.M. 706 board, they

informed me I faced around 15 years confinement because

the board results were favora ble to my defense. Thus, because they advised me th e minimum sentence was life with parole and I would probably only get 15 years confinement, I stopped asking them about a poss ible deal.

Following appellant’s supp lemental assignments of er ror, this court ordered appellant’s five tr ial defense counsel, WC, TB, MW, Major (M AJ) JB and MAJ DH, to provide affidavits to address appellant’s allegations. We recei ved these affidavits and supporting documents.

Mr. WC agrees with appe llant’s initial assertion to the extent he recalls discussing a possible pretri al agreement (PTA) with a ppellant and th at this PTA

would include a 50 -year limit on confinement. Mr. WC recalls appell ant “adamantly opposed such a reso lution.” While Mr. WC does not “recall spec ifically” whether he discussed the concept of parole or “good time” c onfinement reduction with appellant, he explains that in general, an ytime he discussed a PT A with a client he would discuss parole and good time.

In their affidavits, Mr. TB and Mr. MW recall discussi ng the concepts of “good time” and parole with appellant. Mr. MW states:

I explained to the appellant th e benefits of getting a term of years rather than a life sentence. I explained the pros and cons and how they impact ed his ability to get parole, benefits inside the prison, clemency inside the prison. The appellant understood wh at I said, but refused to consider a deal over 25 ye ars. On several occasions, he expressed his belief that he was not guilty of murder,

either because he was deliri ous at the time or because he

felt harassed by his Colonel.

In addition, Mr. TB recalls discussing with appellant th e “possibility of obtaining a pretrial agreement limiting the term of confinement to 40 years” and Mr. MW recalls discussing th e possibility of pleading guilt y and entering into a PTA

“on numerous occasions” with appellant. Mr. TB further states that he:

discussed the possibility of a pre-trial agreement with theVALMONT— ARMY 20110644

6 trial counsel numerous times and was continually told that absolutely no offer with a te rm less than 50 years would be favorably considered . . . . Both [MW] and myself relayed this information back to appellant and appellant

became hostile and informed bo th [MW] and myself that he would not sign a [PTA]. Again, [MW] and I discussed the potential ramifications of trying the case without a [PTA] and informed appellant that based on the evidence against him, the possibility of conviction of pre-meditated murder was extremely high.

After the second Board wa s conducted and after again discussing possible PTAs with appellant, both Mr. TB and Mr. MW discusse d the possibility of a PTA with government counsel. Government counsel maintained their position that the government would not accept a PTA that did not co ntain at least 50 years of

confinement. As further evidence that this conversation to ok place, Mr. TB

submitted e-mails between defense counse l and government counsel as well as emails exchanged between the va rious defense counsel.

In reference to e-mails exchanged between defense couns el and government counsel, government counsel stated, “[i]n light of the Court’s recent ruling re a mitigation expert and the 706 results, are you going to reengage [appellant] with an [Offer to Plead Guilty]/Quantum ?” In his reply, Mr. TB st ated “[w]e are setting up a conference call with [appella nt] to discuss a PTA, we are currently in the 40-45 year range. Please let me know if you anticipate any issues wi th getting this approved – in light of the 706 findings .” The final e-mail in th is series is from government counsel who stated, “[TB], Thanks for the e-mail. We have alwa ys been in the 50 year range. How we get th ere doesn’t matter. If you’ d like to submit 45 and we counter with 50, that’s fi ne. How did your conversation with [appellant] go?”

In regards to e-mails between defens e counsel discussing a PTA, the first relevant exchange is a 16 April 2011 e-mail from Mr. TB to Mr. MW and MAJs (Captains at the ti me) JB and DH:

[MW] and I spoke to Dr. [G] at length this week and he basically said that the majority of what was in the 706 would only be used for motive and he could no t get us to a mental responsibility defens e – and he is on e of the most defense friendly forensic psyc hs out there. He was quite surprised at the findings and said they were “a stretch.” That being said, [MW] and I are going to try and talk to [appellant] on Monday to discuss a PTA, we are contemplating a 40-45 year [Offer to Plead Guilty] with a justification memo attached for the [CA].VALMONT— ARMY 20110644

7 Mr. TB next discusses th e PTA issue in a follow-up e-mail sent to the other three respective defense counsel on 19 April 2011:

[MW], I talked to [appellant] for over an hour this morning and he stated that he will not take any [offer to plead guilty] and wants to take the case to trial. I explained that we have spok en to multiple experts and they will not support a mental responsibility defense, but he [stated] that he was [dia gnosed] with delirium and was not mentally responsible at th e time of the shooting. I highly recommend you give him a call an d [give] him your take on this as well, I do not think a trial is in his best [interest].

In response to an e-mail authored by MAJ JB, Mr. TB sent a follow-up email:

[MAJ JB], I completely agre e with you, we are going to talk with him again about the [Offer to Plead Guilty]. I

think he is foolish in his ne wfound desire to contest this case, especially in light of the fact that we ha ve talked to an extremely defense friendly forensic psych who has told

us that there is not enough for a mental responsibility

defense. I tried to talk some sense in to him again today but he was absolutely adamant about trying th e case. The worst thing that could have happened here was that the 706 said he suffered from a [sev ere] mental defect but was not mental [sic] at the time of the shooting. Frankly, I don’t think he grasps the co ncept, even though I spent nearly an hour explai ning it, again . . . .

Major DH, while not re calling any firm PTAs being offered by the government, did recall Mr. WC discussing the possibility of a PTA that included a 50-year limitation on confinem ent with the appellant. Sh e also recalled appellant was opposed to su ch a PTA.

Major JB recalls advising appellant to think about entering into a PTA with the government and that appe llant was adamantly opposed to the concept. Major JB informally discussed a potential PTA with government counsel, but does not recall the specifics and does not re call the government of fering a PTA.

In a ddition, included in matters submitted by appellant pur suant to R.C.M.

1105 and 1106 was an e-mail dated 1 February 2011 from government counsel to MAJs DH and JB that stated in relevant part:VALMONT— ARMY 20110644

8 All I want for Xmas is an [O ffer to Plead Guilty]/Quantum. However, Xmas is long past. I talked to [app ellant’s] new attorney yesterday out of Hawaii. He wo uld like to go to [a guilty plea] as I’ m sure the rest of us would like it too. With that, I’m su re you can understand that negotiations

become much more difficult after the command spends money.

Appellant has offered no ad ditional evidence in response to these e-mails or

affidavits.

B. Unlawful Command Influence

The issue of unlawful command influence (UCI) was first raised at trial during appellant’s case-in-c hief. Staff Sergeant (SSG) NC, a co-worker of appellant’s, stated she was af raid to testify at appellant ’s court-martial because she feared reprisal based on her unit’s actions after she participat ed in appellant’s Article 32, UCMJ, hearing. When asked what actions the unit had taken against her,

SSG NC stated:

I was moved, sir, without an y documentation. I had not been at the [unit] one year – six months. And besides the

other two reasons th at were stated for them moving me I

also was told that because of the shooting [SSG NC was present at the killing] that I was being m oved, sir.

Staff Sergeant NC further stated she felt intimidated about test ifying “[b]ecause I

was told I would be moved aw ay from my family if I di dn’t sign a piece of paper to

be moved for the reason that I just stated.”

At this point in the trial, the milit ary judge held an Article 39(a), UCMJ,

session to address this issue. After fi rst establishing appellant had not filed a

motion for relief based on UC I, the military judge asked the defense whether they

intended to file a motion a lleging UCI. In response, defense counsel stated:

We’re not raising [UCI] for th e purposes of saying that there was – these people are all here and th ey’re willing to testify. And so the issue is not that they are no longer willing to testify. This goes specifically to this issue of

this command climate and the fe ar of being repr ised against

that was also in the unit. Th is was the same fe ar we believe that [appellant] had and it goes directly to all the underlying activities leading up to the week of the shooting.VALMONT— ARMY 20110644

9 When asked by the military judge whether th e defense wished to pursue a UCI motion based on the reprisal alleged by SSG NC, the defense counsel responded, “defense waives that issue so long as it ’s permitted to again raise this as an evidentiary issue. But in terms of a legal motion for unlawful command influence that may be raised by the defense, the defe nse is waiving that mo tion.” However, a short time later, the military judge, defense and government counsel agreed to

conduct additional re search into whether the UCI issu e was waiveable. The military judge stated that if the issue was waivea ble, it had to be a free, voluntary and knowing waiver, would need involvement by the appellant in the process, and would

be revisited later in the proceedings.

Staff Sergeant NC was then re-called to the stand. She again testified about being afraid to testify an d spent considerable time on the stand. Her testimony included: appellant’s first- line supervisor, SFC TM, mi cro-managed appellant and treated him poorly; appellant was normally a positive pe rson but was worried during the week of the incident; both she an d appellant had filed Inspector General complaints against the unit’s commander; appellant had go tten a body wrap the week of the shooting in order to lose weight; and on the day of the shooting appellant had bloodshot eyes and was not ac ting normally, to the extent that she informed multiple

members of the unit that somethin g was wrong with appellant.

After SSG NC was excused, the milita ry judge again stat ed defense counsel and appellant needed to decide how they wa nted to proceed with respect to the UCI allegations and establis hed when the issue w ould be litigated.

Ms. ML, a co-worker of ap pellant’s, was then called to test ify as a defense witness. Contrary to argument contai ned in appellant’s supplemental brief, 2 Ms. ML’s testimony was that the unit commander had retaliate d against her and others based not upon anything concerning the shooting but instead upon an administrative complaint she had filed against the commande r through “the union.” A hearing into this allegation was held in November 2010, eight m onths before th e shooting. The gist of the remainder of Ms. ML’s testimony was that the command climate was toxic and that appellant was normally a happy pers on but on the da y of the shooting

was not himself.

2 Appellant’s supplemental br ief alleges that Ms. ML “received pressure from the

command” based on her associ ation with appellant during the court-martial process and that “after the shooting, [Ms. ML] testif ied that she also rece ived reprisals from the command after identifying [appellant] as a witness regarding her administrative employment hearing.” Howeve r, per Ms. ML’s testimony, th e administrative hearing occurred eight months prior to the shooting.VALMONT— ARMY 20110644

10 At the end of Ms. ML’s di rect testimony, she stated she was afraid to testify at appellant’s trial because:

I am scared of Colonel [DK], very scared of Colonel [DK], very, because he’s made it k nown that he personally takes my folder home and Major [M B]’s folder home. And I can’t say what he’s said to others, but he’s made – I know

that he’s done a lot to me an d he’s intimidated me. So I just really – just being in th is building right now, I know he’s in this building and it’s kind of fr ustrating. It’s real

bad. I know he’s in here an d I’m not trying to look around in this room, but I know he’s in this building. And it’s just too much for me.

Major MB, another of appellant’s co-w orkers, testified ne xt for the defense and stated the command climate was very st ressful and hostile. She alleged she was harassed by the unit commander before the shooting because she had to report to him in the morning, afternoon a nd evening. Conseq uently, before th e shooting, MAJ MB filed a complaint against the commander for harassment and unfair treatment and felt retaliated against for making that complaint. 3 She never heard anything back regarding her complaint. In addition, MAJ MB testified that appellant was generally an “upbeat” person, but on the day of th e shooting, he did not appear normal.

An additional co-worker then testif ied that the command climate was toxic

and stressful and that on the day of the sh ooting appellant looked like “the seven headed dragon” had taken him over. Then, Ms. MS, a lice nsed social worker who treated appellant and other members of the unit, testified the un it work environment appeared so stressful she wrote a letter inquiring into the ma tter. After Ms. MS testified, the military judge again addres sed the UCI issue wi th defense counsel:

MJ: While we were talking about it during [an R.C.M. 802 conference] prior to meetin g today I raised again the

issue of UCI and Defe nse, you indicated . . . two things. Just tell me if it’s true. That you do not believe althoug h there may be eviden ce of UCI in the terms of what happened to [SSG NC] post-32, would it be fair to say you do not believe that impact ed your ability to present your case?

3 Appellant in his brief ag ain mischaracterizes test imony by alleging MAJ MB testified she “received reprisals from the unit commander after the shooting because

of her associ ation with appellant.”VALMONT— ARMY 20110644

11 Civilian Defense Counsel 1 [C DC 1]: That’s correct your
honor.

MJ: OK. And you’ve been able to have access to witnesses and witnesses you ha ve access to for looking into it [sic]. There ar e – the ones you want are cooperating with you and wi ll testify as you want?

CDC1: Your honor, every witne ss that we needed for trial either to speak with in an in terview or call to testify we have been able to speak with or contact.

MJ: So if there had been any UCI it had no impact on this

trial?

CDC1: That’s correct, sir.

MJ: And therefore you do no t wish to raise the issue?

CDC1: That’s corr ect, your honor.

MJ: Okay. You’ve discusse d this with your client?

CDC1: We have at length.

MJ: Okay. Staff Sergeant Valmont, unlawful command

influence is a serious issu e. It can be somewhat complicated for lawyers and judges for that matter.

ACC: Yes sir

MJ: Okay. And I don’t want to go into the ex tent of those discussions, bu t talking to your attorneys do you feel that you understand what this issue is about?

ACC: Yes sir.

MJ: Okay. And what could possibly happen if you did

raise it and were successful?

ACC: Yes sir.

MJ: After discussi ng it with your a ttorneys do you have any questions about what unlawful comm and influence isVALMONT— ARMY 20110644

12 or the facts in this case that at least from your perspective may give rise to it? Do you have any questions?

ACC: No sir.

. . . .

MJ: Are you convinced th at despite a ny unlawful command influence that may have occurred in this case, you have been able to present all witn esses and evidence and present a full defense in this case?

ACC: Yes sir.

MJ: Okay. And accordingl y do you agree with your attorneys’ decision that you do not wi sh to pursue this issue any further during this trial?

ACC: Yes sir.

MJ: I find the accu sed has made a knowi ng, voluntary and intelligent – I’m not going to say waiver because there may not even be an issue here , but decision not to pursue any allegation of un lawful command influe nce at this trial.

On rebuttal, the governm ent called Sergeant Major BS who generally refuted the allegations made by SSG NC, MAJ MB and Ms. ML.

LAW AND DISCUSSION

A. Ineffective Assi stance of Counsel

1. Failure to Communicate Formal Pretrial Offers

Claims of ineffective assistance of counsel in the plea bargain context are governed by the two-pa rt test set forth by the Supreme Court in Strickland v. Washington , 466 U.S. 668, 687 (1984). See Hill v. Lockhart , 474 U.S. 52, 58-59 (1985). The two-pa rt test found in Strickland requires appellan t to demonstrate: (1) that his counsel’s performance was deficien t, and (2) that this deficiency resulted in prejudice. Strickland , 466 U.S. at 687.

The relatively recent Supreme Court decision in Missouri v. Frye , 132 S. Ct. 1399 (2012), is particularly relevant to appellant’s case . In a 5-4 decision, the Supreme Court held that: “[ A]s a general rule, defense counsel has the duty toVALMONT— ARMY 20110644

13 communicate formal offers from the prosecution to accept a plea on terms and conditions that may be fa vorable to the accused.” Frye , 132 S. Ct. at 1408.

Therefore, appellant’s allegation of ineffective assistance of counsel (IAC) initially fails based on a lack of evidence to find the government ma de a formal plea offer. E-mails, to includ e those from government coun sel, and statements from multiple defense counsel support a finding that government counse l only engaged in

informal discussions with defense counsel concerning a possible PTA. It is also apparent that both defense and government counsel unde rstood that a ny formal PTA would need to originate with appellant a nd would not be support ed by the staff judge advocate or approved by the CA unless it c ontained no less than a 50-year limitation

on confinement.

In addition, even assumi ng these informal discussions could be construed as a formal plea offer, appellant concedes his original defe nse counsel, Mr. WC,

discussed with him th e possibility of entering into a PTA that incl uded a 50-year limitation on confinement. Ap pellant’s allegation of IAC does not assert a lack of communication regardin g potential plea deal s, but rather conten ds he was not fully informed by Mr. WC on the im pact of parole and “good ti me” on a 50-year sentence

to confinement. An IAC finding in this cas e, when appellan t admits he was informed about a potential pl ea deal but not about collat eral parole matters, would necessitate extending Frye well beyond the scope of its narrow holding. Id

.

However, this issue is itself mooted ba sed on conversation s Mr. MW and Mr. TB had with appellant wherei n they discussed parole and “good time” in detail. Appellant has not refuted thos e accounts. As such, the re cord reflects appellant was

on notice as to the “real tim e” associated with a 50-year confinement limitation.

Given there is no indica tion government counsel ever offe red support for a PTA that included less than a 50-year confinement limitation, and no indication appellant ever intended to ac cept a PTA that included a 50-year limitati on, the rest of appellant’s allegation conc erning internal defense di scussions including a 30 or 40 year confinement cap , is irrelevant per Frye . As such, pursuant to Strickland , we find appellant has not established a prima facie case of IAC because he has neither (1) established deficient perf ormance by any of hi s counsel; nor (2) made a colorable showing of possib le prejudice.

2. Advice on Maximum Se ntence to Confinement

Appellant also alleges th at counsel were ineffectiv e because they incorrectly advised him concerning the minimum punishment associated with a guilty plea to a murder charge. In condu cting this review, we will again utilize the Strickland standard and apply a “str ong presumption” that trial defense counsel were

competent. United States v. Grigoruk , 56 M.J. 304, 308 (C.A.A.F. 2002).VALMONT— ARMY 20110644

14 Appellant, in his post-trial affidavit, specifically alleges his civilian defense counsel, Mr. MW and Mr. TB, “informed me that if I pl ed guilty to murder, the statutory mini mum was confinement for life with eligibility fo r parole. Thus, the only deal they could even approach the gov ernment with was life with the possibility of parole.” 4 This erroneous advice concerning the unavai lability of a PTA that

included a term of years to confinement 5 was allegedly a major factor in appellant’s decision not to agree to a PTA and represented deficient performance on the part of his counsel. “[W]here the accused has been grossly misl ed by a miscalculation or erroneous sentence estimation by defens e counsel, such conduct may constitute [IAC].” United States v. St. Blanc , 70 M.J. 424, 428 (C.A.A.F. 2 012) (internal citations omitted).

In response to appellant’s allega tions, Mr. MW and Mr . TB submitted posttrial affidavits that detail numerous discussions with ap pellant concerning possible

PTAs. Both Mr. MW and Mr. TB implicitly refute appellant’s allega tions that they told appellant the CA coul d only approve a PTA that included a period of

confinement for life with the possibility of parole because both recall urging appellant to offer and ultima tely accept a PTA that contained a 40-year term of

confinement.

Because appellant and couns el have filed c onflicting post-tria l affidavits, we have analyzed whether a post-trial evidentiary hearing is required. United States v.

Ginn , 47 M.J. 236 (C.A.A.F. 1997). After applying the fourth Ginn principle, we

find such a heari ng is not required. Id . at 248. Assuming ap pellant’s affidavit is factually adequate on its face, “the appe llate filings and the record as a whole ‘compellingly demonstrate’ the improbabilit y of those facts” an d therefore we may “discount those factual assertions and decide the legal issues.” Id

.

4 Appellant’s supplemental brief initially alleges that defense counsel informed appellant, regarding a guilty plea to murder, that the CA “was only legally able to

offer a minimum of life without parole.” After repeating this alle gation a few times, appellant’s brief then states the alleged error was advi sing appellant the CA could only approve a minimum conf inement period of life with the possibility of parole. Because appellant’s affi davit only supports the latter allegation, this is the allegation

we will address.

5 At the time of appellant’s trial, in acco rdance with R.C.M. 1107(d)(2), and Article 56a(b), UCMJ, althou gh a premeditated murder conv iction, under Ar ticle 118(1), includes a mandatory minimum confinement period of life with the possibility of parole, the CA can approve a lesser sentence as part of a PTA or through his posttrial clemency authority.VALMONT— ARMY 20110644

15 Prior to retaining Mr. TB and Mr. MW, appellant wa s informed by his first civilian counsel, Mr. WC, that the government “was willing to lim it my confinement at 50 years if I pled guilty. ” Appellant, per his affidavi t, admits this conversation took place. Mr. WC and MA J DH, in their affidavits, remember this conversation taking place. In addition, MA J JB avers that when he was the lead attorney in appellant’s case, he “explain ed to [appellant] that due to the overwhelming evidence

in the case he needs to think about the poss ibility of entering into an agreement with

the Government to re duce any potential sentence to a te rm of years.” Appellant has

not addressed MAJ JB’s statement.

Appellant offers no explan ation as to why he would discount the guidance he

received from Mr. WC and MA J JB and end up being misl ed by erroneous guidance that he allegedly received from Mr. TB and Mr. MW. The improbab ility of that eventuality is heightened by MAJ JB’s continued representation of appellant throughout the process and his availability to address the alleged misleading information provided by Mr. TB and Mr. MW.

In making our decision, we find pa rticularly illuminating the e-mails previously identified in this opinion. These e-mails demonstrat e that on or about 16 April 2011, Mr. MW and Mr. TB were planning on discussing a PTA with appellant that included a term of years ( 40-45). One of these e-mails was sent to government counsel to establish that the 40 -45 year range was re asonable. On 19 April 2011, per Mr. TB, appe llant stated he would “not take any [offer to plead guilty] and want[ed] to take th e case to trial.” It is reasonable to conclude the PTA discussed and rejected by appellant on 19 April 2011 included a term of confinement in the 40-45 year range.

In sum, while appellant’ s affidavit alleges erroneous advice about mandatory punishments that could constitute ineffective assistance of counsel if tr ue, the record as a whole and the appellate filings compellingly demons trate the improbability of

those facts. See Ginn , 47 M.J. at 2 48. Thus, under Ginn , this cour t discounts appellant’s factual assertions and finds appellant has failed to demonstrate that counsel’s performance was deficient. See Strickland , 466 M.J. at 687; Ginn , 47 M.J.

at 248.

B. Unlawful Command Influence

Article 37(a), UCMJ, prohibits UCI. W itness interference can constitute UCI.

See United Stat es v. Douglas

, 68 M.J. 349, 354 (C.A.A.F. 2010); United States v.

Gore

, 60 M.J. 178, 185 (C.A.A.F. 2004); United States v. Stombaugh , 40 M.J. 208, 212-13 (C.M.A. 1994); UCMJ art. 37.

Appellant initially argues we should not apply waiv er to his UCI allegation even though his trial de fense team, and appellant himself, were awar e of this issue atVALMONT— ARMY 20110644

16 trial and affirmatively decided not to pursue it. Because the allege d UCI in this case occurred during the adjudica tive stage in the proceedings, and the law is not entirely clear in this area, we agree with appellant and will not apply waiver to this issue. See Douglas , 68 M.J. at 356 n.7; United States v. Johnston , 39 M.J. 242, 244 (C.M.A. 1994); see also United States v. Weasler , 43 M.J. 15, 17-18 (C.A.A.F. 1995); United States v. Reynolds , 40 M.J. 198 (C.M.A . 1994).

On a UCI claim on appeal, a ppellant must first establish: “(1) facts, which if true, constitute [UCI]; (2) th at the proceedings were unfai r; and (3) that the [UCI]

was the cause of the unfairness.” United States v. Salyer , 72 M.J. 415, 423 (C.A.A.F. 2013) (citation omitte d). “[T]he initial burden of showing potential [UCI] is low, but is more than mere allegation or speculation.” Id. (citing United States v.

Stoneman , 57 M.J. 35, 41 (C.A.A.F . 2002)). Spec ifically, appellant must show

“some evidence” of UCI. Id . In addition, alle gations of UCI are reviewed for actual UCI as well as the appearance of UCI. Id.

Our superior court has further held that “prejudi ce is not presumed until the defense produces evidence of proximate causation between the acts constituting [UCI] and the outcome of the court-martial.” United States v. Biagase , 50 M.J. 143, 150 (C.A.A.F. 1999).

In evaluating whether appell ant has met his initial burden, we first note his present claim is premised upon the same tria l testimony that appe llant’s trial defense counsel and appellant himself did not deem worthy of su pporting the very complaint he now lodges. Altho ugh appellant now characte rizes this testimony as “overwhelming evidence of actual and apparent UCI, ” we find it much less compelling.

At trial, the only test imony identified as potentiall y supporting an allegation of UCI was that of SSG NC, sp ecifically that she had faced reprisal in the form of an

unwanted unit transfer for tes tifying on appellant’s behalf at his Article 32 hearing. On appeal, appellant now a lleges that accordin g to their testim ony, Ms. ML and MAJ MB “received pressure from the command for their association with [appellant] during the court-martial process.”

As captured above, Ms . ML’s testimony was that although she was generally afraid of the unit commander, her allegation concerning reprisal was that the unit commander retaliated ag ainst her and witnesse s who testified on her behalf at an administrative hearing because she filed a complaint against the commander through

“the union.” This al leged reprisal had nothing to do with appellant’s court-martial.

Likewise, MAJ MB testified she was harassed by the unit commander before the shooting because she had to report to the commander in the morning, afternoon and evening. Major MB f iled a complaint against the commande r for thatVALMONT— ARMY 20110644

17 harassment and unfair treatme nt. She then complained again concerning perceived reprisal for making the original complaint. All this transpired before the shooting and had nothing to do with appellant’s court-martial.

Assuming, therefore, that SSG NC’s alle gations, if true, constituted UCI, we are left to decide whether appellant’s court-martial proceedi ng was unfair, and whether the assumed reprisal against SSG NC was the ca use of the unfairness.

At trial, appellant’s defense counsel pl ainly stated this a lleged reprisal had no impact on his ability to present his case: “Your honor, every witn ess that we needed for trial either to speak with in an interview or call to te stify we have been able to speak with or contact.” Ba sed on our own revi ew of the record, we conclude this alleged reprisal against SSG NC had no impact on ap pellant’s trial. Because SSG NC testified extensively at trial, it is illogical to now claim that she was somehow influenced not to pr ovide the defense-favorable te stimony that sh e, in fact, provided.

In addition, numerous witn esses testified on appella nt’s behalf as to his demeanor on the day of the shooting and as to the toxic command environment present at the time of the shooting. This testimony sup ported the defense’s strategy that the command drove appellant to invol untarily shoot MSG PM and that appellant therefore lacked the requisite mens rea to support a premeditat ed murder conviction. Contrary to appellant’s alle gations, there is no evidence his ability to call witnesses was impeded, to even the slightest degree , by any command action . As such, we do not find that appellant has met his burden to show that his proceedings were unfair,

let alone establish th at any unfairness was caused by UCI.

CONCLUSION

On consideration of the entire recor d, and the assigned errors, to include matters personally raised by appellant pursuant to Grostefon , 12 M.J. 431 , we hold the findings of guilty an d the sentence as approved by the conven ing authority

correct in law and fact. Accordingly, the findi ngs of guilty and the sentence are

AFFIRMED.

Judge TELLITOCCI and Judge HAIGHT concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: