UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                           WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                      Private First Class DESTRO M. DELA PENA
                             United States Army, Appellant

                                       ARMY 20170534

                              Headquarters, Fort Campbell
                      Matthew Calarco, Military Judge (arraignment)
                         Gisela Westwater, Military Judge (trial)
                     Colonel Andres M. Marton, Staff Judge Advocate


For Appellant: Major Todd W. Simpson, JA; Captain Scott A. Martin, JA.

For Appellee: Lieutenant Colonel Eric K. Stafford, JA.


                                      21 December 2018

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

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

ALDYKIEWICZ, Judge:

       Appellant was convicted at a judge alone general court-martial, pursuant to
his pleas, of false official statement, sexual assault, and burglary in violation of
articles 107, 120, and 129, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 920,
and 929 (2012) [UCMJ]. The court sentenced appellant to a dishonorable discharge,
forty-two months confinement, and reduction to E-1. 1

1
  The military judge initially sentenced appellant to a bad-conduct discharge,
confinement for forty-two months, and a reduction to E-1. After being advised by
the trial counsel that the sexual assault had a mandatory dishonorable discharge
associated with it, the judge “clarified” then “reconsidered” her sentence and re-
announced the sentence as previously adjudged, but this time announcing a
dishonorable discharge. The charges exposed appellant to a maximum punishment

                                                                                (continued . . .)
DELA PENA—ARMY 20170534

      Appellant submitted his case for review without specific assignments of error.
Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), two of which claim ineffective assistance of counsel (IAC)
during appellant’s guilty plea and sentencing proceeding, which we will discuss. 2 In
support of his claim of IAC, appellant and his wife submitted declarations under
penalty of perjury pursuant to 28 U.S.C. § 1746.

                                  BACKGROUND

       Factually, appellant’s case is straightforward. Appellant broke into his
neighbor’s home at night and sexually assaulted her. Appellant sodomized her while
she was asleep or unconscious. Appellant then lied to a U.S. Army Criminal
Investigation Command (CID) special agent during the official military investigation
into his actions. 3

       On 31 December 2015, at Fort Campbell, Kentucky, appellant and his wife
celebrated New Year’s Eve in their residence along with their neighbor, Sergeant
(SGT) B and her cousin. Sergeant B lived next door to appellant and their
residences shared a common wall. Sergeant B’s husband was out of town. Shortly
after midnight, SGT B returned to her residence, checked on her four sleeping
children, and then went to bed. She closed the front door, but left it unlocked so
that her cousin, who was still at appellant’s residence, could return. Although
appellant and SGT B had been neighbors for approximately six months, SGT B never
spoke to appellant prior to this evening. Most notably, SGT B did not do or say


(. . . continued)
of forty-five years of confinement. His pretrial agreement limited confinement to
five years.
2
  In addition to his IAC claim, appellant challenges the military judge’s sentence
reconsideration, arguing, in essence, that the change in punitive discharge from bad-
conduct to dishonorable required a reduction in his adjudged confinement. While we
find error in how the sentence was announced, we cannot find prejudice when the
dishonorable discharge was mandatory as a matter of law.
3
  Appellant’s last criminal act was his false official statement to CID on 21 January
2016. Although not relevant to the disposition of the case, we note that charges in
this case were not preferred until 15 February 2017, 390 days after his last criminal
act and 410 days after his assault of Sergeant B, a significant yet unexplained delay
in what appears to be a simple and straightforward case. While we recognize sexual
assault cases take time and a guilty plea record will often be silent as to many
pretrial issues, we do not see how such a delay in a case such as this can enhance
justice or convey to others confidence in the military justice system.



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DELA PENA—ARMY 20170534

anything that evening that could reasonably lead appellant to believe that she would
consent to any sexual activity with him.

       On 1 January 2016, in the early morning hours and before sunrise, appellant
opened, without authority or permission, the closed front door of SGT B’s residence
and proceeded upstairs to SGT B’s bedroom where he found her in a deep sleep. He
sat on the bed and after removing the covers, rubbed her, stroked her buttocks,
forced her underwear down, licked her stomach, and ultimately penetrated her vulva
with his tongue.

       On 21 January 2016, when questioned by a CID special agent about his New
Year’s Eve actions, appellant initially lied, stating “I’ve never been in the house”
and “I’ve never been in her room,” denying any entry into SGT B’s residence on the
night in question. Appellant eventually confessed, admitting to breaking into the
home, entering SGT B’s bedroom, and sexually assaulting her.

                                LAW AND DISCUSSION

       We write to address appellant’s Grostefon claim of IAC. In reaching our
decision, we have considered appellant’s 28 U.S.C. § 1746 declarations. While we
note that his counsel did not submit affidavits, we do not need affidavits to reach our
decision.

       In United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997), our superior court
noted “a post-trial evidentiary hearing . . . is not required in any case simply because
an affidavit is submitted by an appellant. In most instances in which an appellant
files an affidavit in the Court of Criminal Appeals making a claim such as
ineffective assistance of counsel at trial, the authority of the Court to decide that
legal issue without further proceedings should be clear.” Id. at 248. The court went
on to articulate six principles 4 that guide the service courts of appeal in deciding



4
    The six Ginn principles are as follows:

               First, if 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.

               Second, if the affidavit does not set forth specific facts but
               consists instead of speculative or conclusory observations,
               the claim may be rejected on that basis.

                                                                          (continued . . .)


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DELA PENA—ARMY 20170534

whether to order a factfinding hearing as authorized by United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967). Id.

       Ineffective assistance claims are reviewed “de novo.” United States v.
Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018). Appellant prevails on an ineffective
assistance of counsel claim if he demonstrates “both ‘(1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in prejudice.’”
United States v. Captain, 75 M.J. 99, 101 (C.A.A.F. 2016) (quoting United States v.


(. . . continued)
               Third, if the affidavit is factually adequate on its face to
               state a claim of legal error and the Government either does
               not contest the relevant facts or offers an affidavit that
               expressly agrees with those facts, the court can proceed to
               decide the legal issue on the basis of those uncontroverted
               facts.

             Fourth, if 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.

             Fifth, when 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.

             Sixth, the Court of Criminal Appeals is required to order a
             factfinding hearing only when the above-stated
             circumstances are not met. In such circumstances the
             court must remand the case to the trial level for a DuBay
             proceeding. During appellate review of the DuBay
             proceeding, the court may exercise its Article 66
             factfinding power and decide the legal issue.

Ginn, 47 M.J. at 248.




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DELA PENA—ARMY 20170534

McIntosh, 74 M.J. 294, 295 (C.A.A.F. 2015)); see also Strickland v. Washington,
466 U.S. 668, 687 (1984).

       “With respect to the first prong, whether counsel’s performance was deficient,
courts ‘must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.’” United States v. Rose, 71 M.J.
138, 143 (C.A.A.F. 2012) (quoting Strickland, 466 U.S. at 689). “Since counsel are
presumed competent, an appellant must rebut this presumption by showing specific
errors that were unreasonable under prevailing professional norms.” United States v.
McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001). Regarding the prejudice prong,
appellant must show that “[b]ut for counsel’s deficient performance, there is a
reasonable probability that he would not have pleaded guilty and would have
insisted on going to trial.” Rose, 71 M.J. at 143 (citations and quotations omitted).

             In many guilty plea cases, the “prejudice” inquiry will
             closely resemble the inquiry engaged in by courts
             reviewing ineffective-assistance challenges to convictions
             obtained through a trial. For example, where the alleged
             error of counsel is a failure to investigate or discover
             potentially exculpatory evidence, the determination
             whether the error “prejudiced” the defendant by causing
             him to plead guilty rather than go to trial will depend on
             the likelihood that discovery of the evidence would have
             led counsel to change his recommendation as to the plea.
             This assessment, in turn, will depend in large part on a
             prediction whether the evidence likely would have
             changed the outcome of a trial. Similarly, where the
             alleged error of counsel is a failure to advise the defendant
             of a potential affirmative defense to the crime charged, the
             resolution of the “prejudice” inquiry will depend largely
             on whether the affirmative defense likely would have
             succeeded at trial.

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

       Appellant claims, “[h]ad my defense team competently performed their duties,
I would not have plead [sic] guilty.” The deficiencies appellant relies on are as
follows: (1) counsel failed to investigate exculpatory evidence, to wit, that SGT B
told appellant’s wife that the sexual activity was consensual and SGT B’s “strong
motive to fabricate the allegations,” revenge for a prior report of domestic violence
between SGT B and her husband; (2) counsel told appellant, based on “my CID
interrogation, my only option was to plead guilty or else I would be sentenced to
between 10 and 15 years of confinement;” (3) counsel failed to explore and discuss
with appellant a motion to “suppress” his CID statement considering he was “sleep



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DELA PENA—ARMY 20170534

deprived” during his interrogation; (4) counsel failed to raise, during sentencing,
appellant’s level of intoxication “as an extenuating factor” at the time of the sexual
assault and burglary; and, (5) counsel failed to “negotiate for a disapproval of a
dishonorable discharge.” We conclude appellant failed to meet his burden of proof
on either Strickland prong.

                              A. Prejudice in a Guilty Plea

       We begin our analysis with a discussion of prejudice in a guilty plea.
Appellant’s statement that “[he] would not have plead guilty,” while a prerequisite
to making any IAC claim arising from a guilty plea, without more, does not establish
prejudice warranting relief. “‘A mere allegation by the defendant that he would
have insisted on going to trial is insufficient to establish prejudice.’” Barker v.
United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting United States v. Arvanitis,
902 F.2d 489, 494 (7th Cir. 1990); see also Miller v. Champion, 262 F.3d 1066,
1072 (10th Cir. 2001) (“mere allegation” that defendant would have insisted on trial,
while necessary to raise a claim of IAC linked to a guilty plea, is “ultimately
insufficient” to establish prejudice). It is appellant’s burden to establish a
“reasonable probability that, but for counsel’s errors, [the accused] would not have
pleaded guilty and would have insisted on going to trial.” Barker, 7 F.3d at 633
(citation omitted). A bald unsupported claim is not sufficient to meet this standard.

                                B. Failure to Investigate

       Assuming without deciding the truth of appellant’s failure to investigate
“exculpatory evidence” allegation, no relief is warranted as appellant fails to
establish any prejudice. Appellant acknowledges he personally told his attorneys
about the alleged exculpatory evidence from his wife prior to entry of any plea.
Appellant fails to show how his counsel’s speaking to his wife about this
information would have changed his counsel’s advice regarding the plea or, more
importantly, his personal decision to plead guilty. See, e.g., United States v. Buie,
1990 U.S. App. LEXIS 27245, at *2 (4th Cir. 30 Mar. 1990) (appellant’s claim that
he would not have pleaded guilty had his attorneys discovered an alleged
exculpatory document was without merit as appellant knew about the document at
the time of his plea).

       Appellant’s case is not a case where counsel and appellant were unaware of
potentially favorable evidence prior to entry of pleas. We find appellant’s claim that
he would have pleaded not guilty to ring hollow when considering the following:
(1) the inherent bias of appellant’s wife; (2) the non-compelling nature of SGT B’s
alleged motive to fabricate, revenge for a prior reporting of domestic violence
between SGT B and her husband; (3) that SGT B also told appellant’s wife that
appellant sexually assaulted her, a statement made almost contemporaneously with
the alleged “exculpatory statement” and likely to be brought out during any cross-



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DELA PENA—ARMY 20170534

examination of appellant’s wife; (4) appellant’s detailed plea colloquy where he said
he assaulted SGT B when she was “asleep, unconscious, and otherwise unaware of
the sexual act;” (5) appellant’s detailed confession to CID that tracked his plea
colloquy; and, (6) SGT B’s in-court testimony, albeit during sentencing, that tracked
the non-consensual nature of appellant’s sexual assault.

                              C. Advice on How to Plead

       Regarding counsel’s advice on how to plead, we find neither deficient
performance nor prejudice. Considering appellant’s crimes, its attendant facts and
circumstances, and all evidence presented on sentencing, a sentence of fifteen years
would have been lenient and most definitely appropriate following a guilty plea, let
alone a contest. That said, appellant paints a picture regarding his plea that is
compellingly rebutted by the record of trial, a record that unequivocally
demonstrates that any decision to plead guilty was an informed decision by an
accused who was not forced, coerced, or pressured to enter into his plea. Appellant
knew, based on his plea alone, he could be sentenced to a dishonorable discharge,
forty-five years confinement, forfeiture of all pay and allowances, and reduction to
E-1, the same exposure he faced if he contested the charges. The military judge
asked appellant, “are you pleading guilty not only because you hope to receive a
lighter sentence, but also because you are convinced that you are, in fact guilty?”
Appellant replied, “yes, your Honor.”

                                 D. Motion to Suppress

       Regarding appellant’s assertion of IAC regarding his confession, specifically
his inability to review the confession and counsel’s alleged failure to explore and
discuss with him a possible suppression motion, we find no merit. Appellant fails to
articulate how a pretrial review of a confession, the contents of which he obviously
knew, would have caused him to opt for a contested proceeding. First, appellant, as
part of his plea, waived all “waivable” motions, a pretrial agreement provision
covered by the military judge during appellant’s plea inquiry. Second, he fails to
provide any evidence that any suppression motion had any chance, even a remote
one, of succeeding. “‘When a claim of ineffective assistance of counsel is premised
on counsel’s failure to make a motion to suppress evidence, an appellant must show
that there is a reasonable probability that such a motion would have been
meritorious.’” United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001)
(quoting United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997)).

                      E. Failure to Introduce Mitigating Evidence

       As for counsel’s failure to raise appellant’s level of intoxication during
sentencing, we note appellant is not claiming counsel failed to raise a viable defense
to either his sexual assault or burglary conviction. See, e.g., United States v.



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DELA PENA—ARMY 20170534

Hearn, 66 M.J. 770, 776 (Army Ct. Crim. App. 2008) (voluntary intoxication may
refute specific intent mens rea element of an offense); United States v. Peterson, 47
M.J. 231, 233-234 (C.A.A.F. 1997) (level of intoxication must be so severe as to
render accused “‘incapable of forming the necessary intent’” (quoting United States
v. Box, 28 M.J. 584, 585 (A.C.M.R. 1989)). Assuming appellant’s level of
intoxication was not so severe as to affect his guilt, 5 a fact borne out by appellant’s
express disclaimer of any and all defenses to the charges and specifications in his
offer to plead guilty, he fails to articulate how counsel’s introduction of voluntary
intoxication during sentencing would not be matter inconsistent with his guilty plea
thus requiring, at the very least, reopening of the providence inquiry or at its worst,
a rejection of appellant’s plea. See, e.g., United States v. Moon, 73 M.J. 382, 386
(C.A.A.F. 2014); United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)).
More importantly, appellant fails to show that he would have elected a contested
proceeding had he known that his impairment would not be presented during
sentencing, impairment that likely would be seen as appellant making an excuse for
inexcusable behavior and perhaps enhancing, vice reducing, his punishment.

                  F. Failure to Negotiate a Good Pre-Trial Agreement

       Lastly, we find neither deficient performance nor prejudice stemming from
appellant’s negotiated pretrial agreement. Appellant claims counsel were deficient
because they failed to “negotiate for a disapproval of a dishonorable discharge.”
Appellant, however, fails to provide any evidence that any government official
would have supported or even entertained such an offer. As previously noted,
appellant faced a dishonorable discharge, forty-five years confinement, forfeiture of
all pay and allowances, and reduction to E-1. His counsel negotiated a sentence
limitation of five years, an eighty percent reduction in his confinement exposure.
Ultimately, appellant was sentenced to forty-two months confinement, eighteen
months less than his bargained for deal and less than eight percent of his maximum
exposure.


5
  Appellant’s 28 U.S.C. § 1746 declaration states, “On the night of the alleged
incident, I was intoxicated. During the presentencing phase of the trial, my defense
team should have presented evidence of my level of intoxication as an extenuating
factor.” His Grostefon “brief” states, “Appellant was substantially impaired by
alcohol.” Appellate briefs, and statements contained therein, are not evidence. See,
e.g., United States v. Lewis, 42 M.J. 1, 4 (C.A.A.F. 1995) (factual assertions in
pleadings are not evidence); United States v. Griffin, NMCCA 200201471, 2007
CCA LEXIS 565, at *13 (N.M. Ct. Crim. App. 20 Dec. 2007); Travaglio v. Am.
Express Co., 735 F.3d 1266, 1270 (11th Cir. 2013); Taylor v. First Med. Mgmt., 508
Fed. Appx. 488, 498 (6th Cir. 2012). Beyond the statements herein provided, the
record, to include the stipulation of fact, is silent as to appellant’s level of
intoxication.



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DELA PENA—ARMY 20170534


       Appellant sexually assaulted his neighbor, a woman with whom he first spoke
the night he assaulted her, an assault he committed by breaking into her home, at
night, while her four children slept and her husband was away.

       Having considered appellant’s IAC allegations supported by declarations, the
record of trial, and Ginn principles one, two, four, and five, we find that appellant
has failed to show a reasonable probability that but for counsel’s alleged errors he
would have insisted on going to trial, thus failing to meet his burden to establish
prejudice warranting relief. Our resolution of appellant’s claim on his failure to
establish prejudice obviates any need to order responsive affidavits or order a DuBay
hearing. See United States v. Melson, 66 M.J. 346, 350-51 (C.A.A.F. 2008) (if
presumption of competence is overcome, appellate court “must” compel defense
counsel to explain actions before any ineffective assistance finding).

                                  CONCLUSION

      The findings and sentence are AFFIRMED.

      Senior Judge WOLFE and Judge SALUSSOLIA concur.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:



                                       JOHN P. TAITT
                                       JOHN
                                       Acting P. TAITT
                                              Clerk of Court




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