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

                              UNITED STATES, Appellee
                                           v.
                            Staff Sergeant BRIAN C. WEBB
                             United States Army, Appellant

                                     ARMY 20110104

              Headquarters, Joint Readiness Training Center and Fort Polk
                   Gregory A. Gross, Military Judge (arraignment)
                     Jacqueline L. Emanuel, Military Judge (trial)
                  Jeffery R. Nance, Military Judge (DuBay Hearing)
                     Colonel Keith C. Well, Staff Judge Advocate


For Appellant: Captain Matthew T. Grady, JA; Meagan F. Temple, Esquire (on
brief).

For Appellee: Major Robert A. Rodrigues, JA; Captain Sasha N. Rutizer, JA (on
brief).


                                      29 October 2013

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                     SUMMARY DISPOSITION ON FURTHER REVIEW
                     ------------------------------------------------------

Per Curium:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of conspiracy to obstruct justice, failure to obey a lawful
regulation (3 specifications), aggravated se xual assault, and aggravated assault with
a loaded firearm, in violation of Articles 81, 92, 120, and 128, Uniform Code of
Military Justice, 10 U.S.C. §§ 881, 892, 920, 928 (2006 & Supp. III 2009)
[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable
discharge, confinement for eleven years, and reduction to the grade of E -1. Pursuant
to a pretrial agreement, the convening authority approved only eight years
confinement and otherwise approved the remainder of the sentence.
WEBB—ARMY 20110104

       Appellant raises four assignments of error, two of which merit discussion but
not relief. * Appellant alleges that he was “deprived effective assistance of counsel
during the pretrial agreement process” and that his “plea was involuntary because it
was coerced by his trial defense counsel.”

                                  BACKGROUND

       At trial, appellant pleaded guilty to a course of criminal conduct occurring
from late September through early October 2010. On 24 September 2010, appellant
sexually assaulted a substantially incapacitated victim, Sergeant (SGT) CS, by
placing his fingers in her vagina. Nearly a week later, just before SGT CS was
about to reveal to SGT KA the details of appellant’s sexual assault, appellant used a
firearm to fire two shots at SGT CS and SGT KA. This shooting occurred on Fort
Polk, Louisiana. Appellant’s conduct with that firearm and his other firearms
provided the factual predicate for the three Article 92, UCMJ failure to obey a
lawful regulation specifications. Lastly, appellant conspired with his wife to
obstruct justice and furthered that conspiracy telling his wife via text message to
place several weapons – including the weapon used in the shooting – into the trunk
of her car to be driven off of Fort Polk.

      Noteworthy among appellant’s specific claims on appeal are that his defense
counsel, Mr. SS (formerly Captain SS ):

      (1) told him that if he did not sign a pretrial agreement that his wife would be
          prosecuted for her involvement on the night of the shooting;

      (2) did not discuss with him whether or not consent was a potential defense to
          the charge of aggravated sexual assault ;

      (3) did not advise him regarding spousal immunity or the marital
          communication privilege; and

      (4) did not advise him regarding cross-racial eyewitness identification.




*
 Appellant filed an affidavit from himself in support of the two assignments of error
discussed in this decision, styling it a submission pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). However, it is inconsequential whether this
submission is an affidavit in support of the assignments of error, a submission
pursuant to Grostefon, or both. The allegations in that submission and in appellant’s
pleadings are without merit.




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WEBB—ARMY 20110104

Upon order from this court, Mr. SS submitted an affidavit in which he denied
appellant’s claims.

                                    DuBay Hearing

      In order to resolve material inconsistencies in post -trial affidavits between
appellant and his defense counsel on the issues listed above, this court ordered a
hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411
(1967). The DuBay military judge made, inter alia, the following findings of fact:

      (1) Mr. SS did not advise appellant or his wife that the government would
          prosecute appellant’s wife if appellant did not plead guilty;

      (2) Mr. SS did advise appellant that consent was a potential defense to the
          sexual assault offense appellant was facing;

      (3) Mr. SS did advise appellant about the Military Rule of Evidence 504
          (Husband-Wife) privilege and how it could impact the evidence in
          appellant’s case; and

      (4) Mr. SS discussed with appellant the issue of faulty eyewitness
          identification, but did not talk to him specifically about cross -racial
          identification.

                              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 t rial whose result
             is reliable.

Id. at 687; United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997).

       In analyzing CPT SS’s performance in the case at hand, we conclude that the
military judge’s findings of fact are not clearly erroneous, and, thus, we adopt them
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. See United


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WEBB—ARMY 20110104

States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991) (noting the usefulness of DuBay
hearings in resolving claims of ineffective assistance of counsel) . As such, we need
not address the issue of prejudice. Strickland, 466 U.S. at 697 (“[T]here is no
reason for a court deciding an ineffective assistance claim . . . to address both
components of the inquiry if the defendant makes an insufficient showing on one.”) .
We hold that appellant received effective assistance of counsel. Lastly, we find no
substantial basis in law or fact to question the providence of appellant’s guilty pleas.
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). After considering the
entire record, we are satisfied that appellant entered his pleas voluntarily.

                                   CONCLUSION

       We find all of appellant’s assigned errors to be without merit. On
consideration of the entire record, including the briefs and affidavits submitted by
all parties and the 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
                                         FORTHE
                                             THECOURT:
                                                 COURT:




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




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