## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK

, CAMPANELLA , and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class DAMARCUS D. MCGINTY United States Army, Appellant

ARMY 201 1 0627

Headquarters, 2nd Infantry Divisio n T. Mark Kulish and Patrick Parrish , Military Judge s Colonel Jeffery D. Pederson , Staff Judge Advocate (pretrial)

Lieutenant Colonel Paula I

. Schasberger, Staff Judge Advocate (post

- trial)

For Appellant: Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief)

.

For Appellee: Lieutenant Colonel Amber J. Roach, JA ; Major Daniel D. Mauer, JA (on brief).

30 Ju ly 201 3

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

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT , Judge :

A military judge sitting as a general court

- martial convicted appellant, pursuant to his pleas, of one specification of violating a lawful general order, three specifications of failing t o obey a lawful order, and three specifications of committing indecent conduct

, in violation of Article s 92 and 920, Uniform Code of Military Justice, 10 U.S.C. § § 892, 920 (200 6 ) [hereinafter UCMJ]

. The convening authority approved the adjudged sentence of a bad

- conduct discharge, confinement

for thirty months

, and reduction to the grade of E

- 1.

Appellate counsel assigned three errors to this court and appellant personally raised matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982)

. The first error raised by appellate counsel merits discussion but no relief. The additional assignments of error and those matters raised by appellant pursuant to Grostefon are without merit.MCGINTY

— ARMY 20110627

2 BACKGROUND

In an assignment of error to this court, app ellant alleges he received ineffective assistance of counsel in the post

- trial phase of his court

- martial. Specifically, appellant asserts that his trial defense counsel failed to adequately

advise him of his post

- trial rights and failed to submit certain letters on appellant’s behalf to the convening authority

. Appellant alleges he obtained a letter of support from a family friend, Mr. SF , and prepared his own letter for presentation to the convening authority. According to appellant, he mailed these do cuments to his defense counsel in early November 2011 for inclusion in his request for clemency to the convening authority. In his affidavit to this court, appellant maintains:

Prior to my court

- martial, I was briefly advised of
my post

- trial and appell ate rights by my defense counsel Captain (CPT) [CD]. T hat was the only discussion we had concerning post

- trial matters . I have spoken with CPT [ CD ] only one time since I arrived at Fort Lewis. That conversation occurred in late October or early November 2011, via telephone.

During th at conversation CPT [CD] did not discus s my R.C.M. 1105/1106 matters. Captain [CD] never requested that I send him a letter or any other matters. The only time that CPT [CD] spoke to me about clemency was when he briefly d iscussed my post

- trial rights the day before my court

- martial.

The post

- trial advi c e that CPT [CD] provided to me on the eve of trial was brief and I understood very little of it at the time. After I arrived at Fort Lewis, I began to

understand the R.C .M. 1105/1106 clemency process better. I learned from a counselor here at the facility that I could submit letters and petition the convening authority for clemency. I was advised that I should [submit] clemency matters to my defense counsel.

After lear ning of my right to request clemency, I contacted family and friends and I requested letters of support. In October 2011, I received a letter from a family friend, Mr. [SF] of Dallas, Texas. I also wrote a letter on my behalf. In early November 2011, I mailed Mr. [SF’s] letter and my letter to CPT [CD] in Korea . . .

. I intended for these letters to be submitted as part of my R.C.M. 1105/1106 matters. To my knowledge, they wereMCGINTY

— ARMY 20110627

3 not submitted to the convening authority. In fact, no letters of support w ere submitted on my behalf along with CPT [CD ’s ] clemency request.

Appellant also included a second affidavit wherein he explained t he content of his personal hand written letter intended for the convening authority. Appellant

avers the letter contained information such as: he played college football; he regularly sent money to his young daughter; he was remorseful for his crimes; and his sentence was overly severe compared to his co

- accused. Finally, appellant informed the convening authority of his as pirations for the future and the negative impact of a punitive discharge. Appellant did not include a copy of the letter from

Mr. SF nor did he provide an explanation or summary of the content of that letter.

LAW AND DISCUSSION

The Sixth Amendment guara ntees an accused the right to ef fective assistance

of counsel. United States v. Gooch , 69 M.J. 353, 361 (C.A.A.F. 2011) (citing United States v. Gilley , 56 M.J. 113, 124 (C.A.A.F. 2001)). In the military, this guarantee extends to assistance with the pos t

- trial phase of a court

- martial. United States v.

Lee , 52 M.J. 51, 52 (C.A.A.F. 1999). We review de novo claims that an appellant

did not receive the effective assistance of counsel. United States v. Mazza , 67 M.J. 470, 475 (C.A.A.F. 2009).

“In asse ssing the effectiveness of counsel we apply the standard set forth in Strickland v. Washington , 466 U.S. 668, 687 (1984), and begin with the presumption of competence announced in United States v. Cronic , 466 U.S. 648, 658 (1984).”

Gooch , 69 M.J. at 361. To overcome the presumption of competence, t he Strickland standard requires an appellant to demonstrate “both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.” United

States v. Green , 68 M.J. 360, 361 ( C.A.A.F. 2010) (citing Strickland

, 466 U.S. at

687 ).

This Court applies a three

- part test to determine whether the presumption of competence has been overcome:

1. Are the allegations true, and, if so, is there any reasonable explanation for counsel’s actions?

2. If the allegations are true, did counsel’s performance fall measurably below expected standards?

3. Is there a reasonable probability that, absent the errors, there

would have been a different outcome?MCGINTY

— ARMY 20110627

4

United States v. Polk , 32 M.J. 150, 1 53 (C.M.A. 1991). In the context of a post

- trial claim for ineffectiveness, our superior court has modified the third step, requiring only that there be some colorable showing of possible prejudice. Lee , 52 M.J. at 53 (citing United States v. Wheelus , 49 M.J. 283, 289 (C.A.A.F. 1998) )

.

When assessing Strickland's first prong, courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland

, 466 U.S. at 689 . When challenging the performance of trial defense counsel, the appellant “bears the burden of establishing the truth of the factual allegations that would provide the basis for findin g deficient performance.” U nited States v. Tippit

, 65 M.J. 69, 76 (C.A.A.F. 2007) (citation omitted)

.

When there is a factual dispute, we determine whether further fact

- finding is required under United States v. Ginn

, 47 M.J. 236 (C.A.A.F.1997) . If, however, the

facts set forth in the affid avit do not set forth specific facts but consist of speculative or conclu sory observations, the claim may be rejected on that basis

. Ginn

, 47 M.J. at 248

. Further, if the facts alleged by the defense would not result in

r elief under the high standard set by Strickland

, we may address the claim without the necessity of resolving the factual dispute. Ginn

, 47 M.J. at 248

.

First, regarding the letter from Mr. SF , we find that we need not re turn this

case for further fact

- finding under Ginn because appellant’s affidavits do not set forth specific facts

, “but consist[] of speculative or conclu sory observations.” Id

. Thus, we are able to decide the legal issue without further proceedings. Id . While appellant avers he obtained and mailed a letter from Mr. SF for inclusion in his clemency submission, appellant fails to produce a copy of this letter and fails to summarize or describe the content of the letter. Thus, appellant’s claim that fail ure to include Mr. SF’s letter rendered counsel’s submission deficient is speculative at

best

, and we can discount such an assertion.

Second, regarding appellant’s claim that he was not adequately advised by counsel, we find the appellate filings and the record as a whole “compellingly demonstrate the improbability of those facts,” and we may discount those factual assertions and decide the legal issue. Id . Appellant maintains that until a very late
stage he was unaware of his ability to submit clemency matters to the convening authority. However, this statement is directly contradicted by the record. Appellant signed a post

- trial rights advisement form wherein he acknowledged :

Under Rules For Court

- Martial 1105 and 1106, I have the right to submit mat ters to the convening authority that I wish him to consider in deciding what action to take in my case. Those matters include, but are not limited to, aMCGINTY

— ARMY 20110627

5 personal statement, personal letters and documents , letters and documents from any other person

. . . .

Appellant then initialed the portion of the form indicating he understood his post

trial and appellate rights. Therefore, the record directly refutes appellant ’s claim he was unaware of his ability to submit clemency matters.

Third , w e find , even if any and all factual dispute s were resolved in appellant’s favor, he failed to establish his counsel’s performance fell measurably below the expected professional standards and his claims would not result in relief.

See Green , 68 M.J. at 361 (holding a n accused must prove his counsel’s performance was deficient in order to overcome the presumption of competence)

. S ee also Polk

, 32 M.J. at 153 ( holding a court must assess whether appellant’s performance fell below objectively reasonable standards)

. Her e, appellant signed and initialed the
post

- trial and appellate rights form before his court

- martial. On the form, appellant specifically provided :

If I have matters that I wish the convening authority to consider, or matters in response to the staff judg e advocate’s recommendation, such matters must be submitted within 10 days after I receive a copy of the record of trial or the recommendation of the staff judge advocate, whichever occurs later . . . .

Upon my request, the convening authority may

extend this period for good cause, for not more than 20 days.

Appella nt’s trial ended on 22 July 2011 and the post

- trial recommendation was completed on 20 September 2011. Appellant received a copy of the record of trial and post

- trial recommendation on 3 O ctober 2011. Having been served on 3 October 2011, the deadline for appellant’s submission w ould have been 13 October

2011 ( or 2 November 2011 if extended for the maximum allowable period ) . Based on the post

- trial and appellate rights form, it is clear a ppellant was aware of his

deadline for the submission of his clemency matters. However, he failed to meet it. Neither the record nor the appellate filings indicate appellant informed his trial

defense counsel that he was about to or did mail matters for submission but th at
these letters would arrive past th e deadli ne. Under these circumstances, we cannot say appellant’s defense counsel acted unreasonably in timely submitting matters to the convening authority

. This is especially true where action was no t taken until 1 7

November 201 1 and there is no indication contained in the record that the letters had

arrived in Korea even at that later date

.MCGINTY

— ARMY 20110627

6

Finally, w e find even if counsel ’s performance w ere deficient, appellant has

failed to establish that the d eficiency resulted in prejudice. See Strickland , 466 U.S.

at 687. Although appellant’s letter would have provided one a dditional piece of

information

– that appellant played college football and an injury caused him to leave

school

– the remainder of the inf ormation was included within the record of trial or within appellant’s trial defense counsel ’s clemency request. This includes appellant’s personal background ; his apology to all involved and acknowledg ment of guil t; his financial responsibility for his d aughter ; and appellant’s argument that his sentence was overly severe. Thus, because the essence of the information was ultimately presented to the convening authority, w e are confident appellant has failed to make a colorable showing of possible prejudic e.

CONCLUSION

On consideration of the entire record, the submissions of the parties, and those matters personally raised by appellant pursuant to Grostefon , we hold the findings of guilty and the sentence as approved by the convening authority are

correc t in law and fact.

Accordingly, the findings of guilty and the sentence are AFFIRMED.

Senior Judge COOK and Judge CAMPANELLA concur.

FOR THE COURT:

ANTHONY O. POT Chief Deputy Clerk ANTHONY O. POTTINGER

Chief Deputy Clerk of Court