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

                             UNITED STATES, Appellee
                                          v.
                            Sergeant WESLEY V. EATON
                            United States Army, Appellant

                                     ARMY 20130298

                            Headquarters, Eighth Army
                          Wendy P. Daknis, Military Judge
               Lieutenant Colonel Kurt Takushi, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA (on brief); Lieutenant Colonel Jonathan F. Potter, JA; Captain
Payum Doroodian, JA (on reply brief).

For Appellee: Colonel John C. Carrell, JA; Major John Choike, JA; Captain
Timothy C. Erickson, JA (on brief).


                                        13 May 2015
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

TELLITOCCI, Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of willfully disobeying a superior
commissioned officer, aggravated sexual assault, two specifications of aggravated
sexual abuse of a child, sexual abuse of a child, and one specification of sodomy
with a child, in violation of Articles 90, 120, 120b, and 125, Uniform Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. § 890, 920, 920b, and 925 (2006 &
Supp. IV, Supp. V; 2012). The convening authority approved the adjudged sentence
of a dishonorable discharge, eighteen years of confinement, and reduction to E-1.

      This case is before this court for review pu rsuant to Article 66, UCMJ.
Appellant assigns four errors asserting, among other things, that his defense counsel
were ineffective during the presentencing portions of his court-martial by failing to
EATON—ARMY 20130298
investigate, prepare, and present extenuation and mitigation evidence. Appellant
further alleges that two of the specifications of which he was convicted are
multiplicious. These two assignments of error warrant discussion and relief . 1

                                   BACKGROUND

       Charges were preferred against appellant in September 2012. Appellant was
arraigned in November 2012, there was a pretrial motion session on 11 March 201 3,
and trial was set for 1 April 2013. Appellant was represented by detailed military
counsel, Captain (CPT) JG and CPT JB. The parties anticipated a fully contested
case before a panel including enlisted members. As part of the preparation for trial,
CPT JG traveled from Korea to New York to interview the victim, her mother
(appellant’s wife), and other family members. It is uncertain from the record as to
the timing of this travel, but it is clear that counsel did not use any of this travel to
interview potential mitigation witnesses. At some point prior to trial , appellant
personally furnished two names to his counsel for use as presentencing witn esses—
his mother (Mrs. TC), and Chief Warrant Officer Three (CW3) TM.

      On the day before the trial was scheduled to start, after extensive discussions
with CPT JG and CPT JB, appellant decided to plead guilty. As a result of this
change, the defense consulted with the government’s expert, a forensic psychologist,
regarding appellant’s potential for rehabilitation and likelihood of recidivism.
Appellant did, in fact, plead guilty and did so without a pretrial agreement.

        During presentencing, the government presented testimony from the victim
and from their expert forensic psychologist regarding appellant’s need for treatment.
The psychologist testified that the disciplinary barracks (DB) had a suitable program
and, if incarcerated at the DB, appellant could apply for the two-year long program
four years before he started it. Captain JG cross-examined this witness and was able
to develop testimony that, if the appellant accepted responsibility for his actions and
elected to go into treatment, there was a high likelihood appellant would not re-
offend. In response to additional questions by the defense, the e xpert also testified
that if appellant chose not to participate in therapy he probably would not “do well”
and, therefore, “treatment is the most important thing that we can do from here on
out.”

       The defense called no witnesses during presentencing, but appellant made a
very brief unsworn statement and the defense then admitted appellant’s “good
soldier book” which reflected his service in Bahrain and which included assorted
evaluations, awards, a prior honorable discharge, and multiple training records and
certificates. No written statements were submitted.




1
 Appellant also personally raises two issues pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), neither of which merits discussion or relief.
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       Appellant now complains in a post-trial affidavit that his trial defense counsel
failed to present an adequate sentencing case by failing to conduct a pr oper
investigation and that the two witnesses he specifically requested were not called
during his court-martial. Appellant further avers he never told his defense counsel
that he agreed that no witnesses should be called. Additional affidavits were
submitted from Mrs. TC and CW3 TM.

       In her affidavit, Mrs. TC states that approximately two weeks before the trial
date, she was contacted by CPT JG and informed that she was to be a telephonic
witness during the trial, but was not interviewed about rehabilitative potential or
asked about other possible witnesses who could testify on behalf of appellant . She
further states that she was willing to participate and was informed by CP T JG that
she would be notified of the time for the phone call so she could be prepared. She
also states she was not contacted again by defense counsel and only found out after
the trial ended that she was not to be called. Mrs. TC further states that she could
have identified other character witnesses willing to testify on appellant’s behalf.

       The other proposed witness, CW3 TM, when contacted by CPT JG and asked
about his availability for trial, informed CPT JG that since he was in school he
would be unable to attend the trial in person. He also avers that he was not informed
about the possibility of telephonic testimony and that he was not asked about any
other potential witnesses but now states he could have indentified other character
witnesses willing to testify on appellant’s behalf.

       Pursuant to an order from this court, the trial defense counsel each submitted
affidavits responding to appellant’s claims of ineffectiveness. The affidavit by now
Major (MAJ) JG is the most relevant as he was lead counsel and was responsible for
the presentencing case. This affidavit is in some part directly cont radictory to
appellant’s, but for the most part it is an attempt to explain the defense approach to
presentencing. In it, MAJ JG states that the team decided not to call any witnesses
in person or by phone in order to avoid the potential for cross-examination regarding
the charged misconduct. He also discussed the defense’s desire to avoid potential
for cross-examination regarding “certain uncharged misconduct,” and although there
are no specifics of any kind associated with this claim , there is no allegation that the
government was in any way aware of this alleged misconduct.

       Appellant pleaded guilty at trial to, inter alia, one specification of sexual
assault of a child by penetrating her mouth with his penis on or about 28 June 2012
(Charge III, Specification 1) and one specification of sodomy with a child on divers
occasions between on or about 1 January 2012 and on or about 28 June 2012 (Charge
IV, Specification 2). During the providence inquiry, the military judge determined
the act that took place on or about 28 June 2012 was the exact same act charged in
both specifications. The military judge determined the two specifications would be
treated as an unreasonable multiplication of charges for sentencing purposes. As a
result of his pleas, appellant faced a maximum punishment of a dishonorable



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EATON—ARMY 20130298
discharge, 120 years of confinement, total forfeiture of all pay and allowances, and
reduction to the grade of E-1.

      A different defense counsel was detailed to assist in the preparation of
appellant’s submissions pursuant to Rule for Courts-Martial [hereinafter] 1105. This
submission contained written letters of support from five individuals.

                                    DISCUSSION

                           Ineffective Assistance of Counsel

       To establish ineffective assistance of counsel, appellant “bears the heavy
burden of meeting both prongs of a two-part test: that the performance of his counsel
was deficient and that he was prejudiced thereby.” United States v. Weathersby, 48
M.J. 668, 670 (Army Ct. Crim. App. 1998) (citing Strickland v. Washington, 466
U.S. 668 (1984)); see also United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987).
Regarding the first prong, counsel is presumed competent; thus, appellant “must
rebut the presumption by pointing out specific errors made by his defense counsel
which were unreasonable under prevailing professional norms.” Weathersby, 48
M.J. at 670 (citing United States v. Cronic, 466 U.S. 648 (1984)).

       “[A] court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690.
“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation. ” Id. at 690-691.
       To establish prejudice and meet the second prong, appellant must show
“counsel’s errors were so serious as to deprive the accused of a fair trial, a trial
whose result is reliable.” Weathersby, 48 M.J. at 670 (citing Strickland, 466 U.S. at
687). This requires appellant to show that the errors had more than “some
conceivable effect” on the proceedings, but appellant “need not show that counsel’s
deficient conduct more likely than not altered the outcome in the case.” Strickland,
466 U.S. at 693.

       The post-trial affidavits submitted in this case conflict as to whether or not
appellant agreed with the sentencing strategy adopted by his defense counsel. Due
to this conflict, we are unable to make a factual determination about w hether or not
appellant concurred in this approach. United States v. Ginn, 47 M.J. 236 (C.A.A.F.
1997). In any case, the necessity of appellant’s concurrence in the sentencing
strategy of his counsel is not dispositive of this case; what is controlling, however,
is the soundness of counsels’ strategy.

       It may seem, at first blush, that the trial defense counsel w ere in a difficult
situation not of their own creation; after all, appellant decided to plead guilty at the

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EATON—ARMY 20130298
last minute. However, it is clear from the affidavits of both defense counsel, and not
contested by appellant, that long before the trial date, both counsel clearly
anticipated that appellant would be convicted. As a result, there were long periods
between the September 2012 preferral of charges, the November 2012 arraignment,
and the April 2013 trial date which could have, at least in part, been us ed by trial
defense counsel to prepare a sentencing case. They did not do so. In fact, defense
counsel waited until two weeks before trial to initiate contact with appellant’s
sentencing witnesses.

       Everyone also agrees that appellant provided his defense counsel a list of two
potential witnesses and that neither of these witnesses were prepared by counsel to
testify nor were they asked if they could identify any other potential witnesses .

       Major JG’s plan not to call any witnesses so as to avoid cross-examination
about the charged misconduct is not contradicted or even mentioned in appellant’s
affidavit. Counsel’s avowed strategy was not to have any witnesses available so that
they would not be subject to cross examination about the conduct to which appellant
had just admitted guilt. This approach in a judge-alone presentencing proceeding
before the same military judge who just conducted a providence inquiry is
nonsensical. This “strategy” in a presentencing case is unreasonable and if adopted
by the defense bar, would preclude any presentencing witnesses being called in any
case. It is also almost certain that this type of cross -examination of appellant’s
mother would not have been effective.

        Prevailing professional norms and our adversarial system demand that defense
counsel thoroughly investigate possible evidence in extenuation and mitigation to
assist the sentencing authority in fashioning an appropriate sentence. United States
v. Sadler, 16 M.J. 982, 983 (A.C.M.R. 1983). Moreover, matters in extenuation and
mitigation are not only helpful to the sentencing authority, but also to the convening
authority in making a clemency determination, and for this court exercising our
obligations under Article 66, UCMJ. Weathersby, 48 M.J. at 673.

       Major JG’s claim that avoidance of “have you heard” or “did you know”
cross-examination questions regarding “certain uncharged misconduct” is merely
speculative in nature, especially absent any indication that such alleged misconduct
by appellant was in any way known to the government. Without more, this is
unhelpful. If this was truly the situation, written statements from supportive
witnesses could have been developed. There were none submitted.

       According to MAJ JG’s affidavit, the defense plan relied upon the testimony
of the government expert as their “primary source of sentencing evidence.” This
expert had minimal contact with appellant but did speak with appellant and defense
counsel immediately before the trial. This heavy reliance on a last minute interview
with the government’s expert is evidence not of a well developed plan, but rather of
an unprepared trial defense team.



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EATON—ARMY 20130298
       Under the circumstances of this case, appellant's defense team erred during
the presentencing phase by their failure to investigate appellant’s background for
potential mitigation evidence and, thereafter, by their failure to present available
mitigation evidence. See United States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000);
see also Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Strickland, 466 U.S. at
691 (“Counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.”). “It should not require
an attorney of extreme competence or vast experience to realize that when
representing [a soldier] who is facing [120 years] in prison . . . some extra effort
may be necessary to prepare a credible case in extenuation and mitigation .” United
States v. Dorsey, 30 M.J. 1156, 1160 (A.C.M.R. 1990); see also United States v.
Saintaude, 56 M.J. 888 (Army Ct. Crim. App. 2008).

       In sum, under the facts and circumstances of this case, the defense’s reliance
upon the government expert’s limited testimony coupled with their approach to
having no witnesses testify or otherwise offer written statements or endorsements
was deficient. Based on the record before us, the sentencing case was objectively
unreasonable and falls short of prevailing professional norms . This deficiency
resulted in an unreliable sentence and we conclude that a sentence rehearing rather
than a reassessment is warranted. We will order a rehearing on sentence, where
appellant will have the opportunity to present a case in extenuation and mitigation
with new counsel. See United States v. Boone, 49 M.J. 187, 198-199 (C.A.A.F.
1998); Weathersby, 48 M.J. at 673.

                       Unreasonable Multiplication of Charges

       Typically, we review issues of unreasonable multiplication of charges for an
abuse of discretion. United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004).
Here, although appellant failed to raise the issue at trial, the issue was not expressly
waived and we will review using the plain error standard. United States v. Gladue,
67 M.J. 311, 313 (C.A.A.F. 2009). Appellant must “demonstrate that: (1) there was
error; (2) [the error] was plain or obvious; and (3) the error materially prejudiced a
substantial right of the appellant.” United States v. Harcrow, 66 M.J. 154, 158
(C.A.A.F. 2008) (internal quotation marks and citation omitted). We find the error
here to be plain and obvious.

       During appellant’s providence inquiry regarding Specification 1 of Charge III,
he described one instance of sexual assault of AJW by penetrating her mouth with
his penis on or about 28 July 2012. Later, during the inquiry into the sodomy charge
in Specification 2 of Charge IV, appellant described this very same act as one of the
two acts supporting his providence to the “divers occasions” alleged in the
specification. The military judge merged the two specifications , but only for
purposes of sentencing. Thus, the offense of sexual assault and sodomy are based,
in part at least, on the very same act.




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EATON—ARMY 20130298
      “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one p erson.” R.C.M. 307(c)(4). We
consider five factors to determine whether charges have been unreasonably
multiplied:

               (1) Did the accused object at trial that there was an
               unreasonable multiplication of charges and/or
               specifications?;

               (2) Is each charge and specification aimed at distinctly
               separate criminal acts?;

               (3) Does the number of charges and specifications
               misrepresent or exaggerate the appellant's criminality?;

               (4) Does the number of charges and specifications
               [unreasonably] increase the appellant's punitive
               exposure?; and

               (5) Is there any evidence of prosecutorial overreaching or
               abuse in the drafting of the charges?

United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (internal quotation marks
and citation omitted).

       Under the facts of this case, appellant’s penetration of AJW’s mouth with his
penis on or about 28 June 2012 is one criminal act and charging and convicting
appellant of this act in two different ways unreasonably exaggerates his criminality.
The second and third Quiroz factors balance in favor of appellant. See United States
v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (noting one or more factors may be
sufficiently compelling, without more, to warrant re lief). Accordingly, we will
dismiss Specification 1 of Charge III as an unreasonable multiplication of charges .

      Since our resolution of the first issue discussed above necessitates a sentence
rehearing, any reassessment here is unnecessary.

                                     CONCLUSION

       On consideration of the entire record, including those issues raised personally
by appellant, the findings of guilty of Specification 1 of Charge III are set aside and
that specification is DISMISSED. The remaining findings of guilty are AFFIRMED .
The sentence is set aside. The same or a different convening authority may order a
rehearing on sentence. 2



2
    See generally R.C.M. 810(a)(2)-(3), (d)(1), and (e).
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EATON—ARMY 20130298
    Senior Judge COOK and Judge HAIGHT concur.

                             FOR THE
                               FOR   COURT:
                                   THE COURT:




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




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