                                   CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            KERN, ALDYKIEWICZ, and MARTIN
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Private E1 MICHAEL A. NICKS
                            United States Army, Appellant

                                     ARMY 20110658

                      Headquarters, III Corps and Fort Hood
                        Patricia H. Lewis, Military Judge
   Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate (pre -trial)
            Colonel Stuart W. Risch, Staff Judge Advocate (post-trial)


For Appellant: Major Jacob D. Bashore, JA; Major Kevin F. Sweeney, JA (on brief
and supplemental brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James A. Varley, JA;
Captain Sean Fitzgibbon, JA (on brief).


                                    30 September 2013

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MARTIN, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of conspiracy, one specification of
making a false official statement, four specifications of larceny, two specifications
of forgery, one specification of assault consummated by a battery, and one
specification of housebreaking, in violation of Artic les 81, 107, 121, 123, 128, and
130, 10 U.S.C. §§ 881, 907, 921, 923, 928, 930, Uniform Code of Military Justice
(2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad -conduct
discharge, confinement for two years, total forfeitures, an d reduction to the grade of
Private (E–1). The convening authority approved thirteen months confinement, and
the remainder of the sentence as adjudged.
NICKS—ARMY 20110658

        This case is before us for review under Article 66, UCMJ. We have
considered the record of trial and appellant’s three assignments of error. For the
first two assignments of error, appellant argues that his defense counsel did not
request deferment or waiver of forfeitures, and that his failure to do so constituted
ineffective assistance of counsel. Without reaching the ultimate issue of ineffective
assistance, we find that appellant has not established a colorable showing of possible
prejudice regarding deferment of forfeitures, but has established a colorable showing
of possible prejudice regarding waiver of forfeitures. The third assignment of error
does not merit discussion or relief.

                                      I. FACTS

       Appellant was represented at the post -trial portion of his court-martial by
Captain [hereinafter CPT] JT. In a sworn affidavit, appellant alleges that although
his defense counsel never advised him in writing of his right to request that the
convening authority defer and/or waive adjudged and/or automatic forfeitures, the
defense counsel did advise him of the same rights orally. Appellant further asserts
that he asked his defense counsel to seek both deferment and waiver of forfeitures
for him, but that his defense counsel failed to do so. Appellant asserts that his
chances of receiving forfeiture relief from the convening authority were prejudiced
by his trial defense counsel’s inaction and that he received ineffective assistance of
counsel. Appellant’s pleadings and affidavit before this court do not address the
balancing test required for deferment of punishment under Rule for Courts -Martial
[hereinafter R.C.M.] 1101(c)(3).

       On 28 June 2013, we ordered the trial defense counsel, CPT JT, to answer
appellant’s allegation of ineffective assistance of counsel. In a sworn affidavit, CPT
JT agreed with appellant that he orally advised his client o f his right to request
forfeiture relief. He asserts that he specifically advised appellant that any sentence
to confinement of six months or more, or a sentence that included a punitive
discharge would result in automatic forfeitures during any period of confi nement.
He then explained that appellant could petition the convening authority to defer any
forfeiture until time of action. He also advised appellant of his right to request
waiver for his dependents. Finally, CPT JT asserts that while appellant discu ssed
his dependents and the ability to request deferment and waiver, appellant and his
counsel made a tactical decision not to make the request based on his changed family
situation.

                                       II. LAW

      This court often considers allegations of error related to deferment of
punishment and waiver of forfeitures. For example, in United States v. Fordyce, 69
M.J. 501 (Army Ct. Crim. App. 2010) (en banc), the appellant alleged that he
received ineffective assistance of counsel when his counsel did not submit a requ est



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to the convening authority to defer and waive forfeitures. 69 M.J. at 502. In that
case, both Fordyce and his defense counsel submitted affidavits, but the defense
counsel could not recall advising Fordyce about waiver of forfeitures. Id. at 502.
Without reaching the issue of whether Fordyce’s counsel was deficient, this court
concluded that appellant had suffered prejudicial error in the post -trial processing of
his case. Id. at 504-505. Ultimately, this court concluded that appellant was not
“afforded a full opportunity to present matters to the convening authority prior to his
action on the case.” Id. at 504 (quoting United States v. Hawkins, 34 M.J. 991, 995
(A.C.M.R. 1992)).

       Recently, this court examined the format of an appellant’s claim of lost
opportunity to request deferment and waiver of forfeitures. Specifically, we held
that we will not invade the attorney-client privilege without an affidavit or
declaration under penalty of perjury from appellant asserting that the defense
counsel’s performance was deficient. See United States v. Axtell, 72 M.J. 662
(Army Ct. Crim. App. 2013) (en banc). Furthermore, this court held that a Post-
Trial and Appellate Rights form indicating a desire to request deferment and waiver
of forfeitures alone does not set forth a prima facie case of in effective assistance of
counsel. See id. at 663-664 (citing United States v. Moulton, 47 M.J. 227, 229
(C.A.A.F. 1997); United States v. Gunderman, 67 M.J. 683 (Army Ct. Crim. App.
2009)).

       We analyze allegations of ineffective assistance of counsel using the standard
set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Axtell, 72 M.J.
at 664-665. An appellant must demonstrate that his counsel’s performance was
deficient – that is, the counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed by the Sixth Amendment. Id. An appellant
must also demonstrate prejudice. Id. In post-trial matters involving a convening
authority's decision, there is material prejudice to the substantial rights of an
appellant if there is an error and the appellant makes some colorable showing of
possible prejudice. United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999) (citing
United States v. Wheelus, 49 M.J. 282, 289 (C.A.A.F. 1998). Both prongs of the
Strickland test are mixed questions of law and fact. Strickland, 466 U.S. at 698.
There is no particular order that must be follow ed in analyzing an ineffective
assistance of counsel claim. United States v. Quick, 59 M.J. 383, 386 (C.A.A.F.
2004) (citing Strickland, 466 U.S. at 697).

                                  III. DISCUSSION

                       A. Failure to Request Deferment of Forfeitures

       First, although appellant asserted ineffective assistance of counsel in an
affidavit alleging his counsel failed to request deferment or waiver of forfeitures, we
conclude that appellant has not established a colorable showing of possible prejudice



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flowing from CPT JT’s failure to request deferment of forfeitures. Accordingly, we
need not address whether CPT JT’s performance was deficient as it relates to any
deferment of forfeitures.

       Ordinarily, adjudged forfeitures included in the sentence of a court -martial
take effect on the earlier of the date that is 14 days after the date on which the
sentence is adjudged or the date on which the sentence is approved by the convening
authority. UCMJ art. 57(a). However, upon application of the accused, the
convening authority may defer until action a forfeiture of pay or allowances or
reduction in grade that would otherwise become effective on t he dates described
above. UCMJ art. 57(b).

       The President, under his Article 36, UCMJ rule-making authority, has
mandated certain requirements for an accused requesting deferment of punishment.
A request for deferment must be made in writing. R.C.M. 1101(c)(2). Further, the
accused has the “burden of showing that the interests of the accused and the
community in deferral outweigh the community’s interests in imposition of the
punishment on its effective date.” R.C.M. 1101(c)(3). The rule provides multiple
factors that a convening authority may consider:

      the probability of the accused’s flight; the probability of the accused’s
      commission of other offenses, intimidation of witnesses, or interference
      with the administration of justice; the nature of the offenses (including
      the effect on the victim) of which the accused was convicted; the
      sentence adjudged; the command’s immediate need for the accused; the
      effect of deferment on good order and discipline in the command; the
      accused’s character, mental condition, family situation, and service
      record.

Id.

       Our prejudice analysis of appellant’s ineffective assistance of counsel
allegation turns on whether appellant has met two interrelated burdens. Appellant’s
first burden is the requirement provided by R.C.M. 1101(c)(3). Appellant’s second
burden is his requirement to make a colorable showing of possible prejudice on
appeal. These burdens are interrelated because, as a matter of logic, appellant’s
burden of establishing a colorable showing of possible prejudice on appeal is
inextricably tied to whether appellant has m ade a showing that the R.C.M.
1101(c)(3) test balances in favor of deferment.

      Appellant’s pleadings do not mention the balancing test required in R.C.M.
1101(c)(3). He has not balanced – as the President requires – those factors.
Appellant’s silence on appeal regarding the R.C.M. 1101(c)(3) burden an d the




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factors articulated therein leads to but one conclusion: appellant has failed to make a
colorable showing of possible prejudice.

       In making this conclusion, we expressly note that we do not substitute our
judgment for the convening authority’s judgment. However, the Strickland prejudice
test necessarily examines whether the outcome would have been different; “the
defendant must show that there is a reasonable probability of a different result.”
Strickland, 466 U.S. at 694. Although a “colorable showing of possible prejudice”
is arguably a lesser standard, that standard is still outcome focused. Appellant has
not shown that his interests and the community’s interest in deferral outweigh the
community’s interest in imposition of the punishment on its effective date or at any
point in the post-trial or appellate proceedings. He has therefore not carried his
burden of making a colorable showing of possible prejudice.

                        B. Failure to Request Waiver of Forfeitures

       Unlike deferment, we conclude that appellant has made a colorable showing
of possible prejudice regarding waiver of automatic forfeitures. * The relevant
authorities for waiver of automatic forfeitures are Article 58b, UCMJ and R.C.M.
1101(d). Those authorities lack the allocated burden required for deferment of
punishment. Indeed, a convening authority can even grant waiver of automatic
forfeitures without a request from the accused. Compare UCMJ art. 57a(a) with
UCMJ art. 58b(b). Similar to adjudged forfeitures, automatic forfeitures take effect
14 days after the date on which the sentence is adjudged. UCMJ art. 58b(a)(1).

       Congress established waiver of automatic forfeitures to give convening
authorities “discretionary authority ‘to provide transitional compensation for the
dependants of the accused.’” United States v. Emminizer, 56 M.J. 441, 443
(C.A.A.F. 2002) (quoting H.R. Conf. Rep. No. 104-450, at 853 (1996), U.S.C.C.A.N.
1996, pp. 238, 379). Both appellant’s affidavit and the record of trial amply reflect
that appellant had several dependants and providing them support was a concern of
his. Accordingly, we conclude that appellant has met his burden and established a
colorable showing of possible prejudice regarding waiver of forfeitures.

       However, on the record before us we cannot resolve the first Strickland prong
as to whether CPT JT was deficient for not requesting waiver of forfeitures.
Appellant’s and CPT JT’s affidavits present materially conflicting versions of the
facts. This court cannot decide “disputed questions of fact pertaining to a post -trial
claim, solely or in part on the basis of conflicting affidavits submitted by the


*
 We note that Article 58b, UCMJ, only permits waiver of automatic forfeitures, and
appellant was adjudged total forfeitures. At action, however, the convening
authority could disapprove, mitigate, or suspend appellant’s adjudged forfeitures and
waive the automatic forfeitures for a period of six months.


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parties.” United States v. Ginn, 47 M.J. 236, 243 (C.A.A.F. 1997). Applying the
principles set forth in Ginn, we are unable to decide whether CPT JT’s actions were
deficient without further proceedings. Id. at 248; see United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

       Under the facts of this case, we are confident that a DuBay hearing could not
possibly put appellant in a better positi on than the relief we provide, as appellant
requests that this court remand the case for new post -trial processing. Accordingly,
to protect the interests of justice and to promote judicial economy, we will order a
new recommendation and action without ruling on the issue of ineffective assistance
of counsel. United States v. Starks, 36 M.J. 1160, 1164 (A.C.M.R. 1993) (citing
United States v. Spurlin, 33 M.J. 443 (C.M.A. 1991); United States v. Sosebee, 35
M.J. 892 (A.C.M.R. 1992). Our action allows appellant to submit the request for
waiver of forfeitures which he alleges he wanted but was never submitted.
Notwithstanding our finding of no prejudice with regards to deferment, nothing
herein limits appellant from seeking deferment upon remand.

                                  CONCLUSION

       The convening authority's initial action, dated 23 March 2012, is set aside.
The record of trial is returned to The Judge Advocate General for a new staff judge
advocate post-trial recommendation (SJAR) and new action by the sa me or a
different convening authority in accordance with Article 60(c)-(e), UCMJ.
Appellant should also receive a newly-appointed defense counsel to assist with the
preparation of his clemency matters.

      Senior Judge KERN and Judge ALDYKIEWICZ concur. *

                                       FOR THE COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of
                                       Clerk of Court
                                                Court




* Corrected


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