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

                           UNITED STATES, Appellee
                                        v.
                           Specialist RYAN C. DOWNS
                          United States Army, Appellant

                                  ARMY 20120570

                             Headquarters, Fort Riley
                         Jeffery R. Nance, Military Judge
      Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate (pretrial)
       Lieutenant Colonel John A. Hamner, Staff Judge Advocate (post-trial)

For Appellant: Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Lieutenant
Colonel Katherine A. Lehmann, JA (on brief); Lieutenant Colonel Peter Kageleiry,
Jr., JA; Major Vincent T. Shuler, JA; Captain Patrick J. Scudieri, JA (on reply
brief).

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

                                   28 August 2014

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

HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of aggravated sexual assault, wrongful sexual contact, and
assault consummated by battery in violation of Articles 120 and 128, Uniform Code
of Military Justice, 10 U.S.C. §§ 920 and 928 (2006 and Supp. III 2006) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for seventy-eight months, 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 sixty months, and
reduction to the grade of E-1.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant’s
sole assignment of error alleges ineffective assistance of counsel at the
presentencing hearing for failure “to conduct a proper investigation and present vital
evidence to the military judge.” Additionally, pursuant to United States v.
DOWNS—ARMY 20120570

Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant personally alleges that his defense
counsel’s lack of preparation for a contested trial led appellant to plead guilty
despite his desire to plead not guilty.  These issues of ineffective assistance of
counsel merit discussion but no relief.

                                    BACKGROUND

       In support of the assigned error, appellant submitted an affidavit wherein he
claims his detailed military defense counsel “did not create the impression that he
was putting forth significant effort on [appellant’s] behalf.” So, appellant also
retained Mr. KS and Mr. GG as civilian defense counsel and avers that they also
“seemed unprepared for a contested trial” which “played a significant role in my
decision” to plead guilty. Additionally, appellant swears, “At trial, I was still under
the impression Mr. [KS] would call some of my family members as sentencing
witnesses and was surprised when he did not call any of them or SGT [CH].”

       Along with his affidavit, appellant submitted nine affidavits (four from family
members, three from civilian friends, and two from fellow soldiers). All affiants
hold a favorable opinion of appellant and were willing to provide, if called to the
stand, favorable testimony regarding his rehabilitative potential and character.
Some refer to their surprise upon not being asked to provide such testimony at
appellant’s court-martial. In response to this court’s order, all three of appellant’s
trial defense counsel—Captain TH, Mr. KS, and Mr. GG—submitted affidavits.

       The affidavits of the three trial defense counsel refute appellant’s claim of
lackadaisical preparation and instead attest to their preparation for trial, their efforts
and investigation regarding this case, communications with appellant, and their
interaction with his family members and other proposed character witnesses.
Defense counsel also provide explanation for the extenuation and mitigation
evidence they did present during presentencing as well as explanation for the
witnesses they chose not to call. Attached to the affidavits are several notes,
e-mails, and forms which document their efforts on behalf of appellant as well as
appellant’s personal decision regarding choice of forum, personal decision to plead
guilty, and personal decision regarding his unsworn statement during presentencing.

        In reply to his trial defense counsel’s affidavits, appellant submitted five
additional signed statements, all from people who had previously submitted
affidavits. An additional sworn statement from appellant himself claims he told both
civilian and military counsel that he wanted his family members and certain others
to testify during the presentencing portion of his trial and was surprised when they
did not.


  Also pursuant to Grostefon, 12 M.J. 431, appellant personally raises the issue of an
inappropriately severe sentence. This issue does not merit discussion or relief.


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DOWNS—ARMY 20120570

                              LAW AND DISCUSSION

       Claims of ineffective assistance of counsel are reviewed de novo. United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011). In evaluating allegations of
ineffective assistance of counsel, we apply the standard set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). This standard requires appellant to
demonstrate: (1) that counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice. Id. Appellant must show “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. The relevant issue is whether counsel’s conduct
failed to meet an “objective standard of reasonableness” such that it fell outside the
“wide range of professionally competent assistance.” Id. at 688, 690. “On appellate
review, there is a ‘strong presumption’ that counsel was competent.” United States
v. Grigoruk, 56 M.J. 304, 306-307 (C.A.A.F. 2002) (citing Strickland, 466 U.S. at
689). The following three questions are utilized to determine if this presumption has
been overcome and resulted in prejudice:

             (1) Are appellant’s allegations true; if so, “is there a
             reasonable explanation for counsel’s actions?”;

             (2) If the allegations are true, did defense counsel’s level
             of advocacy fall “measurably below the performance . . .
             [ordinarily expected] of fallible lawyers?”; and

             (3) If defense counsel was ineffective, is there a
             “reasonable probability that, absent the errors,” there
             would have been a different result?

Id. at 307 (citing United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991).

             Claim that Ineffective Assistance of Counsel Led Appellant
                         to Plead Guilty Against His Desire

       First, we determine if a post-trial evidentiary hearing is required with respect
to this particular claim of ineffective assistance of counsel. It is not.

             [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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DOWNS—ARMY 20120570

United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). In his pretrial offer to
plead guilty, appellant acknowledged in writing that he was satisfied with both
military and civilian defense counsel, nobody had forced or coerced him into
offering to plead guilty, and he understood his “legal and moral right to plead not
guilty.” Furthermore, on no less than ten occasions before the military judge entered
findings of guilty, appellant admitted in open court and under oath that he was
satisfied with defense counsel, he had consulted fully with them, he had enjoyed
sufficient time and opportunity to receive the full benefit of their advice, and he
desired to plead guilty and was doing so voluntarily and of his own free will.
Appellant has provided no rational explanation as to why he would have
mischaracterized his level of satisfaction with his defense counsel and his decision
to plead guilty and enter into a pretrial agreement with the convening authority.

      Trial defense counsel were not ineffective, and their preparation and
performance did not lead to an involuntary plea of guilty.

                   Claim that Defense Counsel Were Ineffective at
                        Appellant’s Presentencing Hearing

       First, we determine if a post-trial evidentiary hearing is required with respect
to this particular claim of ineffective assistance of counsel. It is not.

     With respect to the complaint of failure to call to the stand witnesses from
whom appellant desired to have testimony, we refer to the first Ginn principle:

             [I]f the facts alleged in the affidavit allege an error that
             would not result in relief even if any factual dispute were
             resolved in appellant’s favor, the claim may be rejected on
             that basis.

Ginn, 47 M.J. at 248. The decision concerning who is to testify is one of a strategic
or tactical nature. United States v. Paxton, 64 M.J. 484, 490 (C.A.A.F. 2007). It is
well-established that we will not second-guess decisions of that type by defense
counsel. United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993). We are
satisfied that trial defense counsel made a “reasoned tactical decision” to use the
testimony of SSG JP at sentencing and not use the testimony of other potential
witnesses whom they had contacted and with whom they had conversed. United
States v. Weathersby, 48 M.J. 668, 673 (Army Ct. Crim. App. 1998). According to
trial defense counsel’s affidavits, appellant told many, if not all, of these witnesses
that his victims were not credible and that he had done nothing wrong. Failure to
call witnesses who did not believe appellant even committed the crimes to which he
pleaded guilty and who could have potentially undercut a mitigation strategy of
“accepting responsibility and expressing sincere remorse” was not ineffective
assistance of counsel.



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DOWNS—ARMY 20120570

       With respect to the complaint of insufficient investigation and preparation, we
refer to the fourth Ginn principle:

             [I]f the affidavit is factually adequate on its face but the
             appellate filings and the record as a whole “compellingly
             demonstrate” the improbability of those facts, the Court
             may discount those factual assertions and decide the legal
             issue.

Ginn, 47 M.J. at 248. Here, the appellate filings include trial defense counsel’s e-
mails discussing trial preparation, notes from multiple witness interviews, and other
documents evincing their preparation for trial as well as their consultation and
communication with appellant.

       Furthermore, the military judge explained and appellant understood his
extenuation and mitigation rights at trial, to include calling witnesses. Despite
being informed he could withdraw his pleas of guilty at any time before the sentence
was announced, appellant did not do so nor did he voice any displeasure with his
counsel’s performance during presentencing. Then, the military judge also
explained and appellant stated he understood his post-trial rights to include his
opportunity to “submit just about anything you want the convening authority to
consider.” Despite this understanding, in his personal letter submitted to the
convening authority pursuant to Rule for Courts-Martial 1105, appellant again
voiced no displeasure with his counsel’s performance during presentencing. Defense
counsel’s investigation of this case, preparation for trial, the successful negotiation
of a beneficial pretrial agreement, and presentation of presentencing evidence was
not ineffective.

                                   CONCLUSION

      On consideration of the entire record, the submissions of the parties, and
those matters personally raised by appellant pursuant to Grostefon, 12 M.J. 431, the
findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge TELLITOCCI concur.

                                       FOR
                                     FOR   THE
                                         THE   COURT:
                                             COURT:




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




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