UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          TOZZI, BURTON, and CELTNIEKS
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                   Staff Sergeant ADONIS L. FITZPATRICK
                         United States Army, Appellant

                                  ARMY 20140725

                           Headquarters, Fort Stewart
                        John T. Rothwell, Military Judge
        Lieutenant Colonel Daniel D. Grieser, Acting Staff Judge Advocate


For Appellant: Captain Scott A. Martin, JA (argued); Lieutenant Colonel Charles D.
Lozano, JA; Captain Heather L. Tregle, JA; Captain Scott A. Martin, JA (on brief).

For Appellee: Captain Samuel E. Landes, JA (argued); Colonel Mark H. Sydenham,
JA; Lieutenant Colonel A.G. Courie III, JA; Lieutenant Colonel Daniel D. Derner,
JA; Captain Samuel E. Landes, JA (on brief).


                                  7 December 2016

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of disobedience of a lawful order, two
specifications of indecent acts, and one specification of adultery, in violation of
Articles 92, 120, and 134 Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920,
and 934 (2006 & Supp. II 2009; 2006 & Supp. IV 2011; 2006 & Supp. V 2012)
[hereinafter UCMJ]. The military judge also convicted appellant, contrary to his
pleas, of one specification of indecent acts, and three specifications of incest, in
violation of Articles 120 and 134, UCMJ. The military judge sentenced appellant to
a dishonorable discharge, confinement for eight years, forfeiture of all pay and
allowances, and reduction to E-1. The convening authority approved only seven
years and eleven months of confinement and the remainder of the adjudged sentence.
FITZPATRICK—ARMY 20140725

      This case is before us for review under Article 66, UCMJ. Appellate defense
counsel assigns five errors to this court, one of which warrants discussion and relief.
Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982) that we find, after due consideration, to be without merit. 1

       Appellant alleges that Specifications 1 and 4 of Charge III and Specification 3
of Additional Charge III are legally and factually insufficient with respect to clause
1, Article 134, UCMJ, because the government presented no evidence that the
charged conduct took place within the exclusive or concurrent jurisdiction of the
United States. Appellant argues and the government concedes that this court should
set aside that portion of the findings alleging a clause 3 offense but affirm the
specifications as general disorders under clause 2 of Article 134, UCMJ.




1
  In his personally assigned errors appellant asserts, pursuant to a sworn declaration,
his trial defense counsel was ineffective because he failed to call Ms. MB, appellant’s
girlfriend, as a witness. Appellant alleges Ms. MB could have testified that the events
underlying Specification 2 of Charge I did not take place during the alleged time
frame. On 29 August 2016, we granted a request by government counsel by ordering
affidavits from trial defense counsel in response to appellant’s personally assigned
errors alleging ineffective assistance of counsel. After this court received affidavits
from trial defense counsel, appellate defense counsel submitted additional Grostefon
matters in response to those affidavits. Appellant himself submitted no additional
documentation in support of the aforementioned assertions.

Upon review of the entire record of trial in conjunction with the affidavits submitted
by trial defense counsel in response to the order, we disagree with appellant’s
assertions of ineffective assistance of counsel and conclude an evidentiary hearing is
not warranted under United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411
(1967). The facts in appellant’s allegations, even if true, “would not result in
relief.” United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Further, “the
appellate filings and the record as a whole ‘compellingly demonstrate’ the
improbability of [appellant’s allegations].” Id. Applying the first, second, and
fourth Ginn principles, we reject appellant’s ineffective assistance claims. See Id.
As articulated in their affidavits, the tactical decisions made by defense counsel are
not decisions we would second guess, and we are convinced appellant has not met
his burden of establishing ineffective assistance of counsel as required by United
States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)).




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FITZPATRICK—ARMY 20140725

                             LAW AND DISCUSSION

       On consideration of the entire record, we agree that Specifications 1 and 4 of
Charge III and Specification 3 of Additional Charge III are legally and factually
insufficient because the record omits evidence that appellant’s conduct occurred at a
place of exclusive or concurrent federal jurisdiction. Therefore, we set aside that
portion of the findings alleging a clause 3 offense and affirm Specification 3 of
Additional Charge III as a general disorder under clause 2 of Article 134, UCMJ in
our decretal paragraph.

       After removing the portion of the finding alleging a clause 3 offense for
Specification 1 of Charge III, we find that it constitutes the same conduct alleged as
Specification 1 of Charge I. 2 Accordingly, we dismiss Specification 1 of Charge III,
the lesser-included offense, in our decretal paragraph.

       After removing the portion of the finding alleging a clause 3 offense for
Specification 4 of Charge III, we find that it constitutes the same conduct alleged as
Specification 3 of Charge I. 3 We note the date ranges as charged for both
specifications are exactly the same: “on or about 1 September 2011, and on or about
8 January 2012.” However, appellant pleaded guilty and was convicted by
exceptions and substitutions to Specification 3 of Charge I “between on or about 1
January 2012, and on or about 27 June 2012.” Thus, Specification 4 of Charge III



2
  Appellant pleaded guilty and was convicted of Specification 1 of Charge I, in
violation of Article 120, UCMJ, as follows:

             [Appellant], U.S. Army, did, at or near Ft. Carson,
             Colorado, between on or about 1 July 2009, and on or
             about 30 June 2010, wrongfully commit indecent conduct,
             to wit: engaging in sexual intercourse with Ms. [FS], his
             daughter.
3
  Appellant pleaded guilty and was convicted of Specification 3 of Charge I, in
violation of Article 120, UCMJ, as follows:

             [Appellant], U.S. Army, did, at or near Ft. Stewart,
             Georgia, between on or about 1 January 2012 and on or
             about 27 June 2012, on divers occasions wrongfully
             commit indecent conduct, to wit: engaging in sexual
             intercourse with Ms. [FS], his daughter.




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FITZPATRICK—ARMY 20140725

and Specification 3 of Charge I allege the same misconduct over the date range of
“1 January 2012 to 8 January 2012.”

       In light of our “duty” under Article 66(c), UCMJ, to “affirm only such
findings of guilty . . . as [we] . . . determine, on the basis of the entire record should
be approved,” we will exercise this “highly discretionary power” here and dismiss
Specification 4 of Charge III. 4 United States v. Butcher, 56 M.J. 87, 93 (C.A.A.F.
2001).

       Having considered our superior court’s guidance in both United States v.
Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), and United States v. Sales, 22 M.J. 305
(C.M.A. 1986), a rehearing is warranted. The military judge found the maximum
punishment for each specification of assimilated incest to be twelve years, the
greatest maximum sentence of any of the offenses of which appellant was convicted.
See United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013). Our dismissal of
two specifications initially charged as assimilated incest, coupled with amending the
third incest specification to encompass a clause 2 violation, causes a significant
impact on the sentencing landscape of this case. Under these unique circumstances,
we are not “convinced that . . . [appellant’s] sentence would have been at least of a
certain magnitude.” United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986).

                                    CONCLUSION

      On consideration of the entire record, the findings of guilty of Specification 1
of Charge III and Specification 4 of Charge III are set aside and dismissed. We
AFFIRM only so much of the findings of guilty of Specification 3 of Additional
Charge III as finds that:

             [Appellant], U.S. Army, did, at or near Ft. Stewart,
             Georgia, on divers occasions between or about 1 March
             2012 and between on or about 1 August 2013, commit the
             crime of incest by engaging in sexual intercourse with Ms.
             [FS], a person whom he knows he is related to, and that
             said conduct was of a nature to bring discredit upon the
             armed forces.

The remaining findings of guilty are AFFIRMED.

      After analyzing the totality of circumstances presented by appellant’s case in
accordance with the principles and factors articulated by our superior court in
Winckelmann, we set aside the sentence. A rehearing on the sentence may be


4
 The military judge’s merger of Specification 3 of Charge I with Specification 4 of
Charge III for sentencing purposes influenced this decision.


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FITZPATRICK—ARMY 20140725

ordered by the same or a different convening authority. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of his
findings set aside by this decision, are ordered restored.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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