UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             COOK, GALLAGHER, and HAIGHT
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Staff Sergeant BRANDON A. TRIPP
                            United States Army, Appellant

                                      ARMY 20111018

                             Headquarters, Fort Riley
                         Jeffery R. Nance, Military Judge
           Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain E. Patrick Gilman, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on
brief).
                                         17 July 2013
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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as p recedent.

GALLAGHER, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of four specifications of conspiracy, one specification of
absence without leave terminated by apprehension, one specification of escaping
custody, five specifications of larceny, and one specification of burglary, in
violation of Articles 81, 86, 95, 121, and 129 Uniform Code of Military Justice, 10
U.S.C. §§ 881, 886, 895, 921, 929 (2006) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for five years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. Pursuant to a
pretrial agreement, the convening authority approved only so much of the sentence
as provided for a bad-conduct discharge, confinement for twenty -two months,
forfeiture of all pay and allowances, and reduction to the grade of E -1. The
convening authority also awarded ninety-seven days of confinement credit.
TRIPP—ARMY 20111018

       This case is before us for review pursuant to Article 66, UCMJ. We find three
issues merit discussion, one of which merits relief.

                                   BACKGROUND

       In his assignment of error to this court, appellant 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 submit a
personal letter and several letters from family members to the convening authority as
part of his request for clemency. This was despite appellant informing his trial
defense counsel that he desired to submit such matters. In support of this allegation
of error, appellant provided a sworn affidavit wherein he stated:

             Approximately one week after I was sentenced on 15
             November 2011, my trial defense counsel and I discu ssed
             submitting clemency matters for consideration by the
             convening authority pursuant to R.C.M. 1105/1106.
             During that discussion, [my defense counsel] instructed
             me to have my family members write letters to submit to
             the convening authority. He also told me I had
             approximately one month to obtain those letters. I told my
             defense counsel I would obtain letters requesting
             clemency on my behalf from various family members and
             I would submit them to [my defense counsel] upon
             receiving them.

             By mid December 2011, I received letters written on my
             behalf . . . . I sent those four letters, along with a letter I
             wrote for the convening authority, to [my defense counsel]
             at Fort Riley, Kansas, approximately one week after
             receiving the letters from my family members.

Appellant also stated he was unaware, until receiving his record of trial, the letters
had not been submitted to the convening authority for consideration .

        In response to this allegation of error and pursuant to an order by this court,
appellant’s trial defense counsel submitted an affidavit stating he never received the
letters from appellant. Moreover, appellant’s trial defense counsel states he spoke
with appellant on more than one occasion and provided appellant with a due date of
16 December 2011 to submit any matters to him for inclusion in the clemency
request. He further advised appellant that he would contact family members on
appellant’s behalf to obtain supporting documentation , but appellant denied this
offer. Appellant’s trial defense counsel provided a due date of 16 December 2011 to
ensure all matters were collected and prepared for submission prior to his



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deployment to Afghanistan. Appellant’s trial defense counsel did not leave until 29
December 2011 and did not receive the alleged letters before his deployment.
Additionally, Ms. Gibson, the post-trial paralegal preparing appellant’s matters for
presentation to the convening authority, attested she never received the letters prior
to appellant’s matters being submitted on 7 February 2012.

                              LAW AND DISCUSSION

                          Ineffective Assistance of Counsel

       The Sixth Amendment guarantees an accused the right to the 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 post -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 assessing the effectiveness of counsel we apply the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumpt ion
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 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?

United States v. Polk, 32 M.J. 150, 153 (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)).




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TRIPP—ARMY 20111018

       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 (citation omitted). 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
finding deficient performance.” United 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 alleged by the defense would not result in
relief 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.

        After consideration of the record of trial, the pleadings, and the post -trial
affidavits, we conclude a fact-finding hearing is not required in this case . First, in
his affidavit, appellant simply avers that he assumed responsibility for obtaining
letters for inclusion in his clemency request. Furthermore, he states he ultimately
received those letters and mailed them to his defense counsel but not until the agreed
upon deadline had past. Defense counsel’s and Ms. Gibson’s affidavits are equally
simplistic and can be read consistently in that they merely aver that neither counsel
nor the post-trial paralegal ever received the letters, let alone before the deadline or
before submission of the clemency packet. Importantly, appellant does not claim his
counsel received the letters and did not submit them. Nor does counsel claim that
appellant is lying when he states he put the letters in the mail.

        Second, we find appellant failed to establish his counsel’s performance fell
measurably below the expected professional standards. Appellant’s trial defense
counsel adequately advised him of his ability to submit matters to the convening
authority and advised him to obtain such matters; offered to gather supporting letters
for appellant and established an agreed upon, reasonable due date of “approximately
one month” for appellant to get any desired matters to his defense counsel; checked
in with appellant to remind him to submit any desire d matters; prepared a clemency
request and reviewed the contents with appellant ; and submitted his clemency
request to the post-trial paralegal with instruction that it be forwarded to the
convening authority after service of the staff judge advocate’s post-trial
recommendation. On the other hand, appellant allowed an established deadline t o
pass without informing his trial defense counsel that he was about to or did mail
matters for submission but they would be arriving past that deadline. Appellant was
aware his trial defense counsel was deploying yet made no effort to contact anyone
to let them know the letters had been mailed and would be late or to determine if
they had arrived. Under these circumstances, we cannot say appellant’s defense
counsel acted unreasonably in submitting matters to the convening authority . This is
especially true where action was not taken until 7 February 2012 and the letters still
had not arrived at Fort Riley.




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TRIPP—ARMY 20111018

       We find appellant has failed to meet the first prong of the Strickland test by
showing his counsel’s performance was deficient. See Strickland, 466 U.S. at 687.
Additionally, even if appellant’s trial defense counsel’s performance was deficient,
appellant has failed to establish that the deficiency resulted in pre judice. Although
appellant’s letter and the letters from his relatives would have provided new
information about his background, his separation from his son, and his family’s
willingness to support him, the remainder of the information was included within the
record of trial and within appellant’s trial defense counsel’s clemency request:
appellant’s strong military history, his drug addiction history, and a request for an
early release from confinement. Additionally, appellant’s family’s need for
financial support had been brought to the convening authority’s attention through the
request for deferment of forfeitures. Appellant’ s criminal conduct, particularly his
burglarizing a deployed neighbor’s home, as well as stealing TA-50 from soldiers
and stealing military property was especially aggravating. The adjudged sentence
included five years of confinement. Pursuant to a pretrial agreement, the convening
authority reduced the term of confinement to twenty-two months of confinement.
We are confident appellant has failed to make a colorable showing of possible
prejudice.

                   Sufficiency of Plea to Conspiracy on Divers Occasions

        While not raised by the parties, we find there is a substantial basis in law and
fact to question appellant’s plea of guilty t o conspiring with Ms. DC “on divers
occasions” in Specification 1 of Charge III. In order to establish an adequate factual
predicate for a guilty plea, the military judge must elicit “factual circumstances as
revealed by the accused himself [that] objecti vely support that plea[.]” United
States v. Davenport, 9 M.J. 364, 367 (CMA 1980). Here, Specification 1 of Charge
III alleged appellant did “between on or about 19 October 2010 and on or about 16
June 2011, on divers occasions, conspire with” Ms. DC to commit larceny of
military property in excess of $500.00. However, appellant only admitted to
conspiring with Ms. DC on one occasion. See Manual for Courts-Martial, United
States (2008 ed.), pt. IV ¶ 5.c.(3) (an agreement to commit se veral offenses is
ordinarily but a single conspiracy). As such, we find the military judge abused his
discretion in accepting appellant’s plea of guilty to conspiring with Ms. DC “on
divers occasions” and we will strike the “divers occasions” language fro m the
specification.

                                    Maximum Punishment

      This court has long held “the record must show either that one item of the
property stolen has [a value of $500.00] or that several items taken at substantially
the same time and place have such an aggregate value” for an accused to be
convicted of the greater offense and subjected to a maximum punishment that
includes five years of confinement. United States v. Harding, 61 M.J. 526, 528



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(Army Ct. Crim. App. 2005) (citing United States v. Christensen, 45 M.J. 617, 619
(Army Ct. Crim. App. 1997) (quoting United States v. Rupert, 25 M.J. 531, 532
(A.C.M.R. 1987)).

      In Specification 2 of Charge III appellant was charged with conspiring to
commit larceny of property, and in Specification 2 of Charge IV appellant was
charged with larceny of that same property. Both specifications alleged the property
value exceeded $500.00.

       In this case, the military judge and the parties correctly recognized that the
language in the specifications “of a value of more than $500.00,” while factually
accurate as to the total value of property taken, did not trigger the enhanced
maximum punishment. The accumulated value did not trigger the greater maximum
punishment because no single item exceeded $500.00 in value nor was it established
that property taken at substantially the same time and place exceeded $500.00 in
value. As the military judge and the parties correctly calculated and applied the
maximum punishment by utilizing the maximum punishment attributable to larceny
of property of a value less than $500.00 for both Specification 2 of Charge III and
Specification 2 of Charge IV, there is no error.

                                   CONCLUSION

       On consideration of the entire record and the submissions by the parties, we
approve and affirm only so much of Specifica tion 1 of Charge III as provides,
“[b]etween on or about 19 October 2010 and on or about 16 June 2011, at or near
Fort Riley Kansas, conspire with Mrs. D.C. to commit an offense under the Uniform
Code of Military Justice, to wit: larceny of TA -50, of a value of more than $500.00,
the property of the United States Government, and in order to effect the object of the
conspiracy the said accused did cut the locks on the storage cages containing the
TA-50.”

       The remaining findings of guilty are AFFIRMED. Reassessing the sentence
on the basis of the error noted, the entire record, and in accordance with the
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors Judge Baker identified in
his concurring opinion in Moffeit, this court affirms the sentence.

      Senior Judge COOK and Judge HAIGHT concur.




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TRIPP—ARMY 20111018
                      FOR
                       FORTHE
                           THECOURT:
                              COURT:



                      ANTHONY O. POTTINGER
                      Chief Deputy Clerk of Court
                      ANTHONY O. POTTINGER




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