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

                           UNITED STATES, Appellee
                                        v.
                       Specialist DANIEL ZAVALAGAMEZ
                          United States Army, Appellant

                                    ARMY 20110197

                       Headquarters, 82d Airborne Division
                   Tara A. Osborn, Military Judge (arraignment)
                     Gary J. Brockington, Military Judge (trial)
                  David L. Conn, Military Judge (DuBay Hearing)
         Lieutenant Colonel Lorianne M. Campanella, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain
Jack D. Einhorn, JA (on brief).

For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain
Kenneth W. Borgnino, JA (on brief).


                                      7 August 2012

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                    SUMMARY DISPOSITION ON FURTHER REVIEW
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Per Curium:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of conspiracy to wrongfully distribute marijuana, two
specifications of wrongful introduction of marijuana with intent to distribute, and
wrongful distribution of marijuana, in violation of Articles 81 and 112a, Uniform
Code of Military Justice, 10 U.S.C. §§ 881, 912a (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, confinement for
thirty-four months, forfeiture of all pay and allowances, and reduction to the grade
of E-1. Pursuant to a pretrial agreement, the convening authority approved only
eighteen months of confinement, and otherwise approved the remainder of the
adjudged sentence.

       Appellant alleges that he was denied his Sixth Amendment right to effective
assistance of counsel. Specifically, appellant claims that his defense counsel,
Captain (CPT) KA, “failed to notify the military judge of potential pretrial
ZAVALAGAMEZ—ARMY 20110197

punishment issues and/or entered into a sub rosa agreement with the government in
order to obtain SPC Zavalagamez a plea deal.”

                                   BACKGROUND

       On 27 April 2012, this court ordered a hearing pursuant to United States v.
DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), to resolve material
inconsistencies in post-trial affidavits between appellant and his defense counsel
regarding appellant’s representation. Appellant clarified at the hearing that his
counsel’s deficiencies included not fully explaining what constituted Article 13,
UCMJ, pretrial punishment. According to appellant, this caused him not to disclose
that his First Sergeant made disparaging comments about appellant and his co-
accused on numerous occasions in front of unit formations. Moreover, he alleged
his defense counsel advised him not to raise issues to the military judge regarding
the denial of his leave and restriction to post because it would jeopardize his pretrial
agreement. This latter allegation forms the basis for his claim that his counsel had a
sub rosa agreement with the government.

      The DuBay military judge made, inter alia, the following findings of fact and
conclusions of law:

             CPT [KA] orally explained to appellant the concept of
             illegal punishment at their initial meeting, and provided
             appellant with some examples of acts which might
             constitute Article 13 punishment. Appellant demonstrated
             he is both reasonably intelligent and able to complain of
             perceived mistreatment, as reflected by his consultation
             with CPT [KA] upon being denied leave. Appellant
             agreed, both in a stipulation of fact and in response to a
             specific question posed by the military judge, that he was
             not subject to pretrial punishment under Article 13. CPT
             [KA] discussed these statements with appellant in
             preparing him for his guilty plea. Appellant bears a
             reasonable burden to ask questions if he does not
             understand what he admits and agrees to during his trial.
             Therefore, under the circumstances, appellant should have
             been aware and should have raised the matters he now
             alleges on appeal at his trial, including harassing public
             comments by his First Sergeant.

The DuBay military judge also found:




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ZAVALAGAMEZ—ARMY 20110197

             Both the testimony and evidence make clear that the only
             potential treatment of appellant that either the trial
             counsel, CPT [ML], or defense counsel, CPT [KA] were
             aware of at trial was denial of appellant’s leave,
             restriction to the installation and no contact order with co-
             accuseds/co-suspects. Both government counsel and CPT
             [KA] reasonably concluded these matters did not rise to
             the level of Article 13 pretrial punishment. There is,
             therefore, no basis to conclude CPT [KA] had any sub
             rosa agreement with trial counsel or any member of the
             government.

                              LAW AND DISCUSSION

      The Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), set out
a two-prong test for ineffective assistance of counsel:

             First, the defendant must show that counsel’s performance
             was deficient. This requires showing that counsel made
             errors so serious that counsel was not functioning as the
             “counsel” guaranteed the defendant by the Sixth
             Amendment. Second, the defendant must show that the
             deficient performance prejudiced the defense. This
             requires showing that counsel’s errors were so serious as
             to deprive the defendant of a fair trial, a trial whose result
             is reliable.

Id. at 687; United States v. Wean, 45 M.J. 461, 463 (C.M.A. 1997). See
also United States v. Green, 68 M.J. 360 (C.A.A.F. 2010).

       In analyzing CPT KA’s performance in the case at hand, we adopt the military
judge’s findings of fact and conclusions of law as our own. Upon review of the
entire record, to include the DuBay hearing, we do not find the performance of
appellant’s defense counsel to be deficient. As such, we need not address the
prejudice prong of Strickland. United States v. Polk, 32 M.J. 150, 153 (C.M.A.
1991). We hold that appellant received effective assistance of counsel.

                                   CONCLUSION

       In addition to appellant’s assigned error, we have also considered those
matters personally raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1882), and find them to be without merit as well. On consideration of the
entire record, including the briefs and affidavits submitted by all parties and the



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ZAVALAGAMEZ—ARMY 20110197

DuBay hearing, we hold the findings of guilt and the sentence as approved by the
convening authority correct in law and fact. Accordingly, the findings of guilty and
the sentence are AFFIRMED.


                                       FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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