UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                          MULLIGAN, FEBBO, and SCHASBERGER
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                         Specialist VICTOR J. FERNANDEZ
                           United States Army, Appellant

                                     ARMY 20160688

            Headquarters, Joint Readiness Training Center and Fort Polk
                        Douglas K. Watkins, Military Judge
          Lieutenant Colonel Christopher L. Burgess, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W.
Simpson, JA; Captain Augustus Turner, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Joshua Banister, JA
(on brief).

                                    16 November 2018

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

       Specialist Victor J. Fernandez appeals his convictions of desertion, rape of a
child, attempted rape of a child, and sexual abuse of a child, asking us to set aside
his guilty plea. Appellant alleges that his trial defense counsel were ineffective in
that they failed to investigate, coerced him to plead guilty, and coached him into
false and misleading testimony. We ordered affidavits from the trial defense counsel
who represented appellant. We find no unethical behavior on the part of the defense
counsel and conclude that their representation was not ineffective.

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of desertion terminated by apprehension,
two specifications of rape of a child under the age of twelve, one specification of
sexual abuse of a child under the age of twelve, and one specification of attempted
rape of a child under the age of twelve, in violation of Articles 80, 85, and 120b,
Uniform Code of Military Justice, 10 U.S.C. §§ 880, 885, and 920b (2012) (UCMJ).
The military judge sentenced appellant to confinement for nineteen years and a
FERNANDEZ—ARMY 20160688

dishonorable discharge. The convening authority approved the adjudged sentence
and credited appellant with 318 days of confinement credit.

       We review this case under Article 66, UCMJ. Appellant’s sole assignment of
error is a claim of ineffective assistance of counsel. Appellant also personally
asserts additional errors pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). 1 After a review of the entire record, to include numerous appellate exhibits,
supplemental briefs, and affidavits, we find the decisions of the trial defense counsel
were reasonable and affirm the findings and sentence.

                                   BACKGROUND

       Around midnight on 11 September 2015, in their quarters at Fort Polk,
Louisiana, appellant’s wife, JR, heard the door to her five-year-old daughter SR’s
room open. She went to investigate and saw appellant hunched over SR’s bed with
SR’s pajama bottoms removed and her buttocks exposed. JR demanded to know
what was going on and appellant stated, “Since I couldn’t be with you, I just wanted
to be with my little girl.” 2 JR immediately told a neighbor who called the military
police. The police apprehended appellant that night.

      On 16 September 2015, SR gave a statement to clinicians at the Rapides Child
Advocacy Center (CAC). In her statement, SR described numerous sexual acts
involving appellant. Among the sexual acts that SR described were occasions where
appellant touched her “pee-pee,” had her touch his “pee-pee,” touched himself, and
attempted to insert his “pee-pee” into hers. SR also recounted seeing a video of her
mother performing oral sex on appellant.

       In October 2015, appellant left Fort Polk without authority. He eventually
went to California. In December 2015, appellant was arrested by the California
police and detained for carrying a concealed handgun and being a deserter. He was
subsequently transferred back to military control where he was placed into pretrial
confinement.

       In January 2016, the government charged appellant with committing numerous
sexual offenses against both JR and SR. The government based these charges on
statements made by JR and SR, DNA evidence taken from SR’s bed, a cell phone
video taken on appellant’s phone, and the medical exam of SR. The time span for
the charged offenses involving SR was between April and September 2015.


1
 To the extent these alleged errors do not overlap with our analysis below, they do
not warrant any further discussion or relief.
2
    SR was appellant’s step-daughter.


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       Appellant’s initial military defense counsel, Captain BB, was scheduled to
leave the military. In addition to CPT BB, the senior defense counsel at Fort Polk,
MAJ CM, was detailed to the case. Major CM was undergoing a medical evaluation
board during this timeframe. Appellant subsequently hired civilian defense counsel,
AC and CC. Appellant released CPT BB and the senior defense counsel detailed
CPT ND to the case.

       Appellant told his defense counsel that he was innocent. Additionally,
appellant told them he believed that AR, JR’s first husband and the father of SR,
could have assaulted SR. Further, appellant told his defense counsel that SR was
visiting AR for the summer (and thus was not in Louisiana), so it was impossible for
him to have committed any crimes involving SR during the charged timeframe. As
to the semen and DNA in SR’s bed, appellant maintained it was from having sex
with his wife in that bed when SR was away.

       Appellant also asked his defense counsel about the likelihood of conviction.
When told the chances of a conviction were high, appellant and his defense counsel
discussed the possibility of a plea deal. AC told appellant he could not plead guilty
if he maintained that he was innocent. AC also told appellant that he did not have to
remember committing the crime if, after looking at the evidence, appellant believed
that he was guilty.

      Appellant told his defense counsel that he had a history of excessive alcohol
consumption. He frequently drank large quantities of alcohol and “blacked out” (i.e.
he could not remember things he did or said). For example, on prior occasions,
appellant had sex with his wife and did not remember. Appellant also had numerous
conversations that he did not remember. 3

      In consulting with his defense counsel, appellant alternated between stating he
was innocent and asking about the possibility of a deal that would limit his
confinement to under 20 years. Appellant eventually entered into a pretrial
agreement to plead guilty to some of the charged offenses in exchange for the
convening authority dismissing several charges, including all of the sexual abuse
and assault allegations against his wife, and capping his amount of confinement at
22 years. Once securing the deal that he wanted, appellant did not mention his
innocence again to any of his defense counsel.

       As part of his pretrial agreement, appellant entered into a stipulation of fact
which was admitted at trial. In this stipulation, appellant admitted to the underlying
facts for each of the charges to which he pleaded guilty. Additionally, appellant


3
 At trial and in the stipulation of fact, appellant gave specific details of his
drinking.


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FERNANDEZ—ARMY 20160688

acknowledged the variance in the date range of when these events took place but
stated that the extended date range was “fairly included.”

       At trial, appellant repeatedly told the military judge that he had no
recollection of the alleged events but had viewed the evidence and believed SR’s
account of what happened. Appellant ascribed his lack of memory to his alcohol
use. He described to the military judge how he would black out and have no
memories. Appellant stated that he believed SR’s statement from 16 September
2015 and the statements she made to medical personnel. For each charge and
specification, appellant told the military judge exactly what evidence he believed,
pointing to specific statements that SR made at the CAC or while undergoing her
medical exam. Appellant did not adopt SR’s November 2015 statement, and he
challenged the veracity of parts of that statement as he thought SR was
“manipulated.”

       The military judge discussed the viability of several defenses with appellant.
As part of this colloquy, appellant specifically disavowed voluntary intoxication and
lack of mental responsibility. Appellant also disavowed any coercion in pleading
guilty. He stated he was satisfied with his attorneys. The military judge found that
appellant knowingly and voluntarily pleaded guilty.

                             LAW AND DISCUSSION

       To establish an ineffective assistance of counsel claim, which we review de
novo, an appellant must show: “(1) his counsel’s performance fell below an
objective standard of reasonableness; and (2) the counsel’s deficient performance
gives rise to a ‘reasonable probability’ that the result of the proceeding would have
been different without counsel’s unprofessional errors.” United States v. Akbar, 74
M.J. 364, 371 (C.A.A.F. 2015) (quoting Strickland v. Washington, 466 U.S. 668,
688, 694 (1984)) (emphasis in original).

       When we evaluate the first Strickland prong, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” 466 U.S. at 689. Appellant has the burden to show “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687; see also Harrington
v. Richter, 562 U.S. 86, 104 (2011).

       Appellant’s claim regarding ineffective assistance of counsel has several
parts. More specifically, appellant claims: (1) his defense team did not investigate
leads; (2) his defense counsel coerced him into pleading guilty; and (3) his defense
counsel suborned perjury during his guilty plea. After reviewing the record, we find
that none of these claims have merit or warrant additional fact-finding.



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       First, in regards to the alleged failure to investigate, we are convinced by the
explanations provided in the various defense counsel affidavits. All defense counsel
acknowledge that appellant provided information which led to helpful evidence. 4
For example, they acknowledge appellant gave them information which established
that either SR was gone or appellant was away during a large majority of the time
period charged. Appellant also told them to investigate AR; the defense counsel did
and found evidence to support appellant’s allegations that AR may have abused SR
and possibly other children. Appellant further asked the defense team to look into
credibility issues with JR. The defense team found JR did have credibility issues,
but they also found that several of her allegations were corroborated by witnesses
who did not have credibility issues. In sum, even with all of appellant’s
information, leads, and suggestions, the defense counsel did not believe that this
information was enough to overcome the strength of the government’s evidence.

       Second, though appellant may have subjectively felt “coerced” into pleading
guilty, the objective facts do not support his assertion. Appellant was facing a
maximum sentence of life without the eligibility of parole. Appellant’s defense
counsel, including the senior defense counsel at Fort Polk and an experienced
civilian defense counsel, evaluated the government’s chance of convicting appellant
as being high. Upon our review of the record of trial and evidence therein, this
evaluation appears reasonable. 5 Telling an accused that the evidence against them is
strong and the potential penalties for a conviction are great is not coercion. 6
       Third, as to the allegation that the civilian defense counsel and rest of the
defense team suborned perjury, we find no evidence that the defense team believed
appellant to be lying when he testified that he could not remember committing the
offenses but had reviewed the evidence and believed the evidence. The defense
counsel agree that appellant originally stated that he was innocent, but wanted a deal
that would cap his confinement at under 20 years. Appellant also told his defense


4
 None of the defense counsel remember telling appellant that the system was corrupt
or that “proof of his innocence would not matter.” Instead, they believe that
appellant interpreted their explanations of how in some circumstances an innocent
man can be convicted as meaning the system is corrupt.
5
  As part of the guilty plea, the government dismissed all of the allegations
regarding various assaults on JR. We are unable to evaluate whether the evidence
for those allegations is as strong as the evidence regarding the offenses against SR.
6
  Appellant also alleges his counsel contacted his mother as part of his attempt to get
him to plead guilty. Even if we did not believe the defense counsel’s explanation of
the conversations with appellant’s mother, this would not change the fact that telling
one’s client their chances of acquittal are slim and the potential punishment is high
is not coercion.


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counsel that he frequently drank to excess and had memory gaps. Prior to trial, the
defense counsel had conversations with appellant regarding the requirement that he
would have to believe that he was guilty or he could not plead guilty. Given the
nature of appellant’s guilty plea in this case, in which he maintained that he had no
recollection of the events but believed SR after reviewing the evidence, we find no
reason to believe that his defense team thought he was lying during the providence
inquiry.

       We have also considered whether we are required to remand this case for a
post-trial fact-finding hearing. In applying the framework outlined in United States
v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997), we are mindful there are “circumstances
under which a DuBay hearing is required to resolve a post-trial claim that is framed
by conflicting affidavits.” United States v. Fagan, 59 M.J. 238, 241 (C.A.A.F.
2004). We conclude that no post-trial hearing is necessary in this case.

       For this analysis, Ginn sets out five factors to consider: in this case, the issues
raised by appellant are covered by the third and fifth Ginn factors.

       For the third Ginn factor, there is no requirement for a post-trial hearing if the
government “either does not contest the relevant facts or offers an affidavit that
expressly agrees with those facts,” and the issue turns on a claim of legal error. 47
M.J. at 248. In this case, the defense counsel’s affidavits expressly agree that
appellant provided them with specific evidence and information to support his
defense. This included, among other things, providing information that SR was
located in a different state during most of the time period charged.

       Critically, in their affidavits, the defense counsel explained they received this
information, investigated the case, and still concluded there was a high likelihood of
conviction based on the overall evidence. We find the defense counsel’s analysis to
be sound and the tactical decisions that resulted to be reasonable and not in error.
For example, had the defense objected to the government’s motion to change the
date range, the military judge may have found it a minor change under Rule for
Courts-Martial (R.C.M.) 603(c). Alternatively, the government could have preferred
additional charges or preferred the impacted charges anew. See R.C.M. 603(d).

      The fifth Ginn factor is also applicable to several of appellant’s claims:
             [W]hen an appellate claim of ineffective representation
             contradicts a matter that is within the record of a guilty
             plea, an appellate court may decide the issue on the basis
             of the appellate file and record (including the admissions
             made in the plea inquiry at trial and appellant’s expression
             of satisfaction with counsel at trial) unless the appellant
             sets forth facts that would rationally explain why he would
             have made such statements at trial but not upon appeal.

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FERNANDEZ—ARMY 20160688

47 M.J. at 248.

        Here, appellant now claims ineffective representation. As part of his
affidavit, appellant states he never believed he blacked out, but testified otherwise to
get the benefit of his deal. Appellant does not, however, address the specific
evidence and nuances related to his guilty plea. For example, appellant made
admissions in the stipulation of fact, a document which the military judge went over
at trial and appellant stated was true. During his guilty plea, appellant also provided
evidence for every element of every charge. Notably, appellant did not adopt all of
SR’s or JR’s statements and instead rationally described which ones he believed.

       Overall, appellant’s affidavit does not provide a rational explanation as to
why he would have repeatedly stated he believed certain evidence at his trial and
was not coerced into pleading guilty, but has now changed his mind. It is not
coercion for defense counsel to explain the risks, maximum punishment, and
strength of the evidence. Additionally, appellant was represented by multiple
attorneys: they filed motions, secured experts, and conducted appropriate
preparation for a contested trial. There is no reason to believe that appellant was
lying when he said he was satisfied with his representation at trial.

       In this case, the military judge ensured that appellant understood his rights,
the elements of the charges, potential defenses, and the evidence which supported
the charges. We do not see the need for a hearing on the matter.

                                   CONCLUSION

      On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                        FOR THE COURT:


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




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