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

                           UNITED STATES, Appellee
                                         v.
                     Private First Class RYAN R. DAVIDSON
                          United States Army, Appellant

                                    ARMY 20110512

                     Headquarters, I Corps (Rear)(Provisional)
                         William Sowder, Military Judge
         Lieutenant Colonel Gregg A. Engler, Acting Staff Judge Advocate


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

For Appellee: Major Robert A. Rodrigues, JA; Major Catherine L. Brantley, JA
(on brief).


                                       23 April 2013

                              -------------------------------------
                                SUMMARY DISPOSITION
                              -------------------------------------

Per Curiam:

       A military judge, sitting as a special court-martial, convicted appellant,
pursuant to his pleas, of one specification of absence without leave and three
specifications of wrongful use of a controlled substance, in violation of Articles 86
and 112a of the Uniform Code of Military Justice, 10 U.S.C. §§ 886, 912a (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for 100 days, and reduction to the grade of E-1. The
convening authority approved only so much of the sentence as provided for a bad-
conduct discharge, confinement for three months, and reduction to the grade of E-1.

       In this case, appellant alleges that he was denied his Sixth Amendment right
to effective assistance of counsel in the post-trial phase of his court-martial when his
defense counsel failed to submit matters pursuant to Rule for Courts-Martial
[hereinafter R.C.M.] 1105/1106 to the convening authority on his behalf. Instead, in
lieu of a request for clemency, appellant’s trial defense counsel, after requesting
additional time, then submitted a waiver of clemency matters purportedly signed by
DAVIDSON— ARMY 20110512

appellant. In his post-trial affidavit, appellant asserts he does not recall signing this
document and he did not intend to waive his ability to obtain clemency from the
convening authority. In addition, appellant argues he was not properly advised on
the clemency process or even contacted by his defense counsel after the day of trial.
Rather, appellant states his defense counsel met with him on one occasion, the day
prior to his court-martial, and she “did not explain the clemency process and [she]
did not tell me what I needed to do to apply for it.” Appellant swears that had he
been so advised, he would have submitted a request for clemency to the convening
authority which included a personal submission by appellant and several letters by
his family members.

        On 8 January 2013, this court ordered appellant’s trial defense counsel to
provide a sworn affidavit responding to appellant’s allegations of error. In her post-
trial affidavit, defense counsel maintains: she advised appellant of his ability to
submit clemency matters immediately following his court-martial on 21 June 2011;
appellant signed a waiver of his post-trial rights during this meeting; and she
submitted this signed, but undated, waiver on 6 December 2011, the date appellant’s
clemency matters were due to the convening authority.

       In evaluating ineffective assistance of counsel allegations, we apply the
standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). This
standard requires appellant to demonstrate: (1) “that his counsel’s performance was
deficient, and (2) that this deficiency resulted in prejudice.” Id. Our ability to
resolve this post-trial issue is affected by two factors. First, pursuant to United
States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997), we are prohibited from “deciding
disputed questions of fact pertaining to a post-trial claim, solely or in part on the
basis of conflicting affidavits submitted by the parties.” Id. at 243. Second, we are
required to grant relief in regards to post-trial matters that involve a convening
authority’s decision “if there is an error and the appellant makes some colorable
showing of possible prejudice.” United States v. Fordyce, 69 M.J. 501, 504 (Army
Ct. Crim. App. 2010).

       After reviewing appellant’s and defense counsel’s sworn affidavits, we find
the affidavits to be in conflict as to whether appellant knowingly and voluntarily
waived his ability to submit clemency matters to the convening authority. In
applying the principles set forth in Ginn, we are, thus, not only unable to simply
discount appellant’s affidavit and decide the issue without further proceedings, but
we are also prevented from formally making a finding regarding whether defense
counsel’s performance was deficient without the benefit of a Dubay hearing.
However, a Dubay hearing does not afford the best solution in resolving the issue
before us.

      In this particular case, it is unclear whether appellant knowingly and
voluntarily waived his ability to present matters to the convening authority for



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DAVIDSON— ARMY 20110512

consideration. Accordingly, to protect the interests of justice and promote judicial
economy, we will order a new recommendation and action to ensure appellant is
afforded a meaningful and informed opportunity for clemency. See Fordyce, 69 M.J.
501. We are convinced a DuBay hearing could not put appellant in a better position
than the relief we provide, which happens to be the relief appellant seeks. Thus,
there is no need to further explore the issue of ineffective assistance of counsel.

                                   CONCLUSION

       The convening authority's initial action, dated 15 December 2011, is set aside.
The record of trial is returned to The Judge Advocate General for a new staff judge
advocate’s post-trial recommendation (SJAR) and new initial action by the same or a
different convening authority in accordance with Article 60(c)-(e), UCMJ.
Appellant should receive a newly appointed defense counsel to assist with the
preparation of his clemency matters.  

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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