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

                           UNITED STATES, Appellee
                                        v.
                      Specialist JOHNATHAN M. JOHNSON
                          United States Army, Appellant

                                   ARMY 20120643

      Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell
                        Timothy Grammel, Military Judge
      Colonel Jeff A. Bovarnick, Staff Judge Advocate (advice and addendum)
           Lieutenant Colonel Sebastian A. Edwards (recommendation)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Captain John L. Schriver, JA; Captain Jack D. Einhorn, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James Varley, JA;
Major Catherine L. Brantley, JA (on brief).


                                      24 June 2014

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of rape of a child, indecent liberty with a child, three
specifications of sodomy with a child under the age of twelve, five specifications of
aggravated assault in which grievous bodily harm is intentionally inflicted upon a
child under the age of six weeks, and child neglect, in violation of Articles 120, 128,
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, 928, 934 (2006 &
Supp. I) [hereinafter “UCMJ”], respectively. The military judge sentenced appellant
to a dishonorable discharge, confinement for thirty-eight years, and reduction to the
JOHNSON—ARMY 20120643

grade of E-1. The convening authority approved only thirty years confinement and
otherwise approved the remainder of the sentence. 1

       This case is before this court for review under Article 66, UCMJ. In his sole
assignment of error, appellant alleges ineffective assistance of counsel in the post-
trial phase of his court-martial. Without deciding the issue of ineffective assistance
of counsel, we remand this case for a new recommendation and action. 2

                                  BACKGROUND

      In an affidavit filed contemporaneously with his brief before this court,
appellant alleges, inter alia:

             My civilian defense counsel only called me one time after
             my court-martial. This phone call took place
             approximately two days before clemency submissions
             were due. I asked my civilian defense counsel if I could
             send a personal letter to the convening authority. He told
             me that I could send a letter to the convening authority,
             but it probably would not add much to the clemency
             submission or make a difference in the convening
             authority’s decision whether to grant clemency. He also
             said there probably was not enough time to do a typed
             letter but I could provide a handwritten one. When I
             explained that it would take me a few days to do a
             handwritten letter, he said that they would just submit the
             clemency submission “as is.”

Appellant’s affidavit includes some topics his personal statement allegedly would
have contained, including: his remorse for his crimes; his combat experience;
explanations about his relationship with his wife and children; his mental health
issues resulting from his combat experience; the abuse he witnessed as a child; and
his subsequent, futile efforts to obtain mental health treatment as a result of
witnessing this abuse.



1
 The convening authority also deferred automatic forfeitures until action, and, at
action, waived those automatic forfeitures for a period of six months. Appellant was
also credited with 196 days confinement against the sentence to confinement.
2
 Given the relief in this case, we need not decide appellant’s personal submissions
made pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).




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JOHNSON—ARMY 20120643

       We subsequently ordered an affidavit from the civilian defense counsel, Mr.
JP, who represented appellant in the post-trial phase of his court-martial. In his
affidavit, Mr. JP states:

             I told [appellant] he could submit a statement if he
             wanted. He told me he did not want to write a statement
             to the convening authority. I told him not to worry about
             the format, but what was important was that he put
             something in. I did tell him he could hand write a
             statement. He seemed apathetic and resigned. He clearly
             expressed that he did not want to write a statement. I do
             not remember any conversation about length of time for
             submission of the statement, because he clearly did not
             want to submit a statement. There was no talk about a
             “looming deadline” because we were assured we could get
             more time. . . . If worse came to worse, [appellant] could
             have faxed us his statement from the CJA office. I do not
             remember discussing the likelihood of him being granted
             clemency, but if I did it was not in the context of
             submitting a personal statement to the convening
             authority. . . .

             I did not tell him not to submit a personal statement. I
             would never have suggested this to him or any other client
             in a similar situation.

Ultimately, no personal statement from appellant was included in his clemency
submissions.

                             LAW AND DISCUSSION

       We analyze claims of ineffective assistance of counsel using the two-pronged
test of Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective
assistance of counsel, “an appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in prejudice.”
United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466
U.S. at 687). However, our ability to resolve Strickland’s performance prong is
circumscribed by the general prohibition against an appellate court’s ability to
decide whether counsel’s performance was deficient when presented with material




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JOHNSON—ARMY 20120643

factual conflicts in competing affidavits. 3 United States v. Ginn, 47 M.J. 236
(C.A.A.F. 1997). In the case at bar, these affidavits are at odds regarding why
appellant did not submit a personal statement with his clemency submissions.
Accordingly, we cannot decide this first prong.

       We also cannot resolve this ineffective assistance of counsel claim on the
second prong. See Strickland, 466 U.S. at 697 (authorizing courts to decide such
claims on lack of prejudice without deciding whether counsel was deficient). In the
post-trial context of ineffective assistance of counsel claims, the threshold for
establishing prejudice is low because of the convening authority’s highly
discretionary power to grant clemency. United States v. Lee, 52 M.J. 51, 53
(C.A.A.F. 1999). Courts will give an appellant the benefit of the doubt and find that
“there is material prejudice to the substantial rights of an appellant if there is an
error and the appellant makes some colorable showing of possible prejudice. Id.

       The government’s brief does an exemplary job in showing how most of
appellant’s proffered personal statement would have been cumulative with other
clemency submissions and the record of trial. 4 However, the record and other
clemency submissions do not document appellant’s purported unsuccessful efforts to
obtain mental health treatment for the abuse he witnessed as a child. Given the
importance of consideration by the convening authority of a servicemember’s letter
requesting clemency, cf. United States v. Siders, 15 M.J. 272, 274 (C.M.A. 1983),
we give appellant the benefit of the doubt and conclude that he has made some
colorable showing of possible prejudice. See United States v. Wheelus, 49 M.J. 283,
289 (C.A.A.F. 1998).

      Ordinarily, given the conflicting affidavits, we would order a DuBay hearing.
See United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (C.M.A. 1967).
Under the facts of this case, we are confident that a DuBay hearing could not
possibly put appellant in a better position than the relief we provide. Likewise, we
are confident there is no need to further delve into the issue of ineffective assistance
of counsel. Considering the interests of justice and judicial economy, we order a
new review and action.




3
 None of the six exceptions to Ginn’s general rule apply in this case. See Ginn, 47
M.J. at 248.
4
 Although the convening authority is not required to review the record of trial, Rule
for Court-Martial 1107(b)(3)(B)(i), the convening authority expressly did so in this
case.




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JOHNSON—ARMY 20120643

                                  CONCLUSION

       The convening authority’s initial action, dated 12 December 2012, is set aside.
The record of trial is returned to The Judge Advocate General for a new staff judge
advocate post-trial recommendation (SJAR) and new action by the same or a
different convening authority in accordance with Article 60(c)-(e), UCMJ.
Appellant should also receive a newly-appointed defense counsel to assist with the
preparation of his clemency matters.


                                      FOR
                                       FORTHE
                                           THECOURT:
                                               COURT:




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




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