                                   CORRECTED COPY

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

                              UNITED STATES, Appellee
                                          v.
                            Specialist BRANDON B. WARD
                            United States Army, Appellant
                                      ARMY 20120681
                        Headquarters, 25th Infantry Division
                           David L. Conn, Military Judge
                  Colonel George R. Smawley, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Robert N. Michaels, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).


                                         24 July 2014
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                                  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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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 two specifications of possession of child pornography and
two specifications of viewing child pornography, in violation of Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The
convening authority approved the adjudged sentence of a bad-conduct discharge,
eighteen months of confinement, and reduction to E-1.
      This case is before this court for review pursuant to Article 66, UCMJ.
Appellant alleges that his conviction for the four separate specifications constitute
an unreasonable multiplication of charges. We agree and grant relief for an
WARD — ARMY 20120681
 
unreasonable multiplication of charges in our decretal paragraph. Appellant raises
an additional matter which merits discussion but no relief. 1 

                                  BACKGROUND

    Appellant was charged with and pleaded guilty to the following Article 134,
UCMJ, specifications:

             SPECIFICATION 1: In that [appellant], U.S. Army, did, at
             or near Schofield Barracks, Hawaii, between on or about
             10 April 2008 and on or about 1 June 2010, knowingly and
             wrongfully possess child pornography, to wit: videos and
             digital images of a minor engaging in sexually explicit
             conduct, such conduct being prejudicial to good order and
             discipline in the armed forces and being of a nature to
             bring discredit upon the armed forces.

             SPECIFICATION 2: In that [appellant], U.S. Army, did, at
             or near Schofield Barracks, Hawaii, between on or about
             10 April 2008 and on or about 1 June 2010, knowingly and
             wrongfully view child pornography, to wit: videos and
             digital images of a minor engaging in sexually explicit
             conduct, such conduct being prejudicial to good order and
             discipline in the armed forces and being of a nature to
             bring discredit upon the armed forces.

             SPECIFICATION 3: In that [appellant], U.S. Army, did, at
             or near Forward Operating Base Warhorse, Iraq, between
             on or about 1 June 2010 and on or about 1 July 2011,
             knowingly and wrongfully possess child pornography, to
             wit: videos and digital images of a minor engaging in
             sexually explicit conduct, such conduct being prejudicial
             to good order and discipline in the armed forces and being
             of a nature to bring discredit upon the armed forces.

             SPECIFICATION 4: In that [appellant], U.S. Army, did, at
             or near Forward Operating Base Warhorse, Iraq, between
             on or about 1 June 2010 and on or about 1 July 2011,
             knowingly and wrongfully view child pornography, to wit:

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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                videos and digital images of a minor engaging in sexually
                explicit conduct, such conduct being prejudicial to good
                order and discipline in the armed forces and being of a
                nature to bring discredit upon the armed forces.

       At trial, the government conceded the pairs of “possessing” and “viewing”
specifications “would be . . . unitary offense[s] for sentencing purposes.” The
military judge announced that he would consider Specifications 1 and 2 and
Specifications 3 and 4 as only two offenses for purposes of sentencing. Neither
party objected to the court’s ruling. The defense never made a motion for
unreasonable multiplication of charges for findings.

       Appellant and his defense counsel, Captain (CPT) GS, filled out and signed a
standard Defense Counsel Assistance Program (DCAP) Post-Trial and Appellate
Rights form (PTAR). The PTAR was dated the day of trial, 11 July 2012, and
included guidance that appellant, if convicted and subject to resultant forfeitures,
could request a deferment and/or waiver of those forfeitures from the convening
authority. Appellant indicated on the PTAR that if subject to forfeitures, he wanted
to request a deferment and waiver of those forfeitures. Appellant also indicated in
the PTAR that if counsel was unable to contact appellant after reasonable efforts,
defense counsel was authorized to submit matters on appellant’s behalf. This PTAR
provision was reinforced by the military judge on the record just prior to closing for
deliberation by the following:

                Military Judge: If your defense counsel tries to contact
                you, but is unsuccessful, do you authorize him to submit
                clemency matters on your behalf to the Convening
                Authority that he deems appropriate?

                [Appellant]: Yes, sir.

       Although the military judge did not include forfeitures as part of appellant’s
adjudged sentence, appellant was subject to automatic forfeiture of all pay and
allowances. See UCMJ art. 2 58b. On 20 July 2012, CPT GS submitted a request to
defer the adjudged reduction and defer and waive the automatic forfeitures for the
benefit of appellant’s spouse and minor children, with each child identified by name
and age. On 2 August 2012, appellant’s request was disapproved by the convening
authority.

      Captain GS submitted clemency matters to the convening authority in
accordance with Rules for Courts-Martial [hereinafter R.C.M.] 1105 and 1106.

2
    Corrected



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Captain GS’s memorandum requested the convening authority disapprove the
findings or, in the alternative, disapprove or reduce the sentence to confinement.
The submission pursuant to R.C.M. 1105 and 1106 contained letters from appellant’s
spouse and mother as well as numerous photographs of appellant’s family.

       On appeal to this court, appellant submitted an affidavit in which he avers that
he was unable to contact CPT GS post trial, despite numerous attempts. Appellant
also averred that, although he had previously informed CPT GS that he did not wish
to submit a personally drafted letter as part of his clemency submissions, he had
changed his mind and wished to do so. His affidavit further states that had he been
able to submit a letter, it would have comported with the following:

             I would have told the convening authority about the
             impact my conviction and incarceration was having on my
             family. Considering the convening authority disapproved
             sending my pay to my family even after the military judge
             made that recommendation, 3 I thought it might help him
             understand why I was asking for the things I was asking
             for. At the very least, I thought it might help him
             reconsider sending money to my family.

Appellant has not submitted any such letter.

       Upon an order from this court, the government obtained and submitted an
affidavit from CPT GS. In this affidavit, CPT GS averred that despite multiple
attempts by CPT GS and his paralegal to contact appellant, they were unsuccessful.
The affidavit also states that, both prior to and during trial, despite repeated requests
from counsel, appellant was unwilling to provide a letter in support of either the
request for deferment and waiver or in support of his post-trial clemency
submissions. Finally, CPT GS avers that he assumed that appellant, consistent with
his prior repeated declinations, would refuse to submit a letter on his own behalf.
                              LAW AND DISCUSSION
                       Unreasonable Multiplication of Charges
       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). Although
appellant failed to raise the issue at trial, the issue was not expressly waived and we

3
  The military judge’s recommendation regarding deferral and waiver was
appropriately and specifically discussed by the staff judge advocate in his
recommendation to the convening authority.




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review using the plain error standard. United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009). The 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).

        During the appellant’s providence inquiry, he stated the files which were the
subject of Specifications 1 and 2 were identical sets. Later, appellant stated that the
files involved in Specifications 3 and 4 were the same set, but a different set of files
than the set in Specifications 1 and 2. 4

       Thus, the offenses are necessarily intertwined. “What is substantially one
transaction should not be made the basis for an unreasonable multiplication of
charges against one person.” 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 citation and
quotation marks omitted) (internal alteration reflects the holding by CAAF in Quiroz
that “unreasonably” was the appropriate legal standard).

4
  The misconduct charged in this case took place prior to the 12 January 2012
effective date of Executive Order No. 13593 in which the President enumerated the
specific Article 134, UCMJ, offense of Child Pornography. See Exec. Order No.
13593, 3 C.F.R. 295 (2011) (2011 Amendments to the Manual for Courts-Martial,
United States). In this newly enumerated offense, viewing and possessing are
alternative theories of liability for the first element. This is similar to the structure
of the offense set forth under 18 U.S.C. § 2252 (a)(4)(B) (2006 & Sup. II 2009)
which prohibits possession or knowingly accessing child pornography with intent to
view.



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       Under the facts of this case, the accused’s possession and viewing of an
identical set of images and videos are necessarily and closely interrelated and not
aimed at distinctly separate criminal acts. Absent possession, the viewing could not
have taken place. Put another way, the viewing here was incidental to the
possession. Four convictions unreasonably exaggerate appellant’s criminality for
only two instances of criminal behavior. Thus, these two Quiroz factors balance in
favor of appellant, requiring that we merge these four specifications into two
specifications respectively. 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 relief). Accordingly, we will merge Specifications 1 and 2 into
Specification 1, and we will merge Specifications 3 and 4 into renumbered
Specification 2 in our decretal paragraph.

                        Post Trial Ineffective Assistance of Counsel

      In his second assignment of error, appellant alleges appellant’s trial defense
counsel, CPT GS, was ineffective by not consulting with appellant regarding
clemency matters.

       In evaluating allegations of ineffective assistance of counsel, we apply the
standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). This
standard requires appellant to demonstrate: (1) that counsel’s performance was
deficient, and (2) that this deficiency resulted in prejudice. Id. Under the first part
of this test, appellant must show “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. The relevant issue is whether counsel’s conduct failed to meet an objective
standard of reasonableness or whether it was outside the “wide range of
professionally competent assistance.” Id. at 690. “On appellate review, there is a
‘strong presumption’ that counsel was competent.” United States v. Grigoruk, 56
M.J. 304, 306-307 (C.A.A.F. 2001) (citing Strickland, 466 U.S. at 689). The second
part of this test is met by showing a “reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694; see generally United States v. Hood, 47 M.J. 95
(C.A.A.F. 1997) (applying Strickland to address claim of ineffective assistance of
counsel during the post-trial stage of appellant’s case); United States v. Clemente,
51 M.J. 547 (Army Ct. Crim. App. 1999). “However, because of the highly
discretionary nature of the convening authority’s clemency power, the threshold for
showing prejudice is low. This Court 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




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prejudice.” United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999) (citing United
States v. Wheelus, 49 M.J. 283, 289 (C.M.A. 1998)) 5 (quotation marks omitted).

       This is not a case in which counsel failed to submit any post-trial matters, nor
does appellant complain regarding the adequacy of his counsel’s submissions. Here,
appellant only avers that had he been able to contact his counsel he would have
submitted a personal letter. Pursuant to United States v. Ginn, 47 M.J. 236
(C.A.A.F. 1997), we have analyzed whether a post-trial evidentiary hearing is
required. After applying the second and third Ginn principles, we find such a
hearing is not required in this case. Id. at 248.

       Considering the second Ginn factor, appellant’s affidavit sets forth merely
general, speculative, and conclusory observations. Appellant has offered no specific
evidence which would support a convening authority approving a previously denied
request for deferment or waiver of forfeitures nor has he alleged any facts different
than those set forth in counsel’s R.C.M. 1105 and 1106 submission. The clemency
submission, including the letters from appellant’s wife and mother, certainly reflects
the impact of appellant’s confinement on his family. See Clemente, 51 M.J. at 551
(an appellant has the responsibility to bring to an appellate court’s attention facts
rather than mere speculation as relief cannot be granted, under Strickland, based on
mere speculation).

      Appellant did not proffer to his trial defense counsel, his appellate defense
counsel, or to this court any materials he may have wished to submit to the
convening authority. Appellant also specifically authorized his trial defense
counsel, both in the PTAR and in open court, to submit matters on his behalf if
reasonable attempts to contact appellant failed. The affidavit from CPT GS
demonstrates reasonable efforts to make post-trial contact.

       Furthermore, under the third Ginn factor, assuming appellant’s affidavit
facially sets forth sufficient facts to state a claim of legal error, the government
affidavit does not contradict any of the facts set forth in appellant’s. This is not a
case in which there are conflicting affidavits. In fact, the affidavits here are
complementary. Appellant and his trial defense counsel each aver that prior to and
during trial, appellant declined to submit a personal letter in support of his clemency
submissions. Each affidavit provides that, despite multiple attempts by each party,
there was no successful post-trial communication. The affidavit of CPT GS contains
more detail regarding discussions with appellant, but nothing therein conflicts with



5
    Corrected




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appellant’s affidavit. Therefore, we may “proceed to decide the legal issue on the
basis of those uncontroverted facts.” Ginn, 47 M.J. at 248. 6

      Appellant did not proffer to his trial defense counsel, his appellate defense
counsel, or to this court any materials he may have wished to submit to the
convening authority. Appellant also specifically authorized his trial defense
counsel, both in the PTAR and in open court, to submit matters on his behalf if
reasonable attempts to contact appellant failed. The affidavit from CPT GS
demonstrates reasonable efforts to make post-trial contact. 7

        Appellant has also failed to demonstrate that counsel’s reasonable reliance on
appellant’s repeated unwillingness to provide a personal letter, under the
circumstances of this case, constitutes deficient performance. See Strickland, 466
U.S. 8 at 687; Ginn, 47 M.J. at 248. As a result, appellant’s claim of ineffectiveness
is without merit.

                                      CONCLUSION

       Specifications 1 and 2 of The Charge are consolidated into a single
specification, Specification 1 of The Charge, to read as follows:

                  SPECIFICATION 1: In that [appellant], U.S. Army, did, at
                  or near Schofield Barracks, Hawaii, between on or about
                  10 April 2008 and on or about 1 June 2010, knowingly and
                  wrongfully possess and view child pornography, to wit:
                  videos and digital images of a minor engaging in sexually
                  explicit conduct, such conduct being prejudicial to good
                  order and discipline in the armed forces and being of a
                  nature to bring discredit upon the armed forces.

The finding of guilty to Specification 2 is set aside and that specification is
dismissed.

Specifications 3 and 4 of The Charge are consolidated into a single specification,
renumbered Specification 2 of The Charge, to read as follows:


6
    Corrected
7
    Corrected
8
    Corrected  




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             SPECIFICATION 2: In that [appellant], U.S. Army, did, at
             or near Forward Operating Base Warhorse, Iraq, between
             on or about 1 June 2010 and on or about 1 July 2011,
             knowingly and wrongfully possess and view child
             pornography, to wit: videos and digital images of a minor
             engaging in sexually explicit conduct, such conduct being
             prejudicial to good order and discipline in the armed
             forces and being of a nature to bring discredit upon the
             armed forces.

The finding of guilty to Specification 4 is set aside and that specification is
dismissed.

The findings of guilty as modified are AFFIRMED.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

        In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape that might cause us pause in reassessing appellant’s sentence as
these specifications were already merged for sentencing at trial. Second, appellant
was tried and sentenced by a military judge. Third, we find the merged offenses still
capture the gravamen of the original offenses and the aggravating circumstances
surrounding appellant’s conduct remains admissible and relevant to the remaining
offenses. Finally, based on our experience, we are familiar with the remaining
offenses so that we may reliably determine what sentence would have been imposed
at trial.

       After reassessing the sentence and the entire record, we AFFIRM the
approved sentence. We find this purges the error in accordance with Sales and
Winckelmann, and is also appropriate under Article 66(c), UCMJ. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by this decision are ordered restored.

      Senior Judge COOK and Judge HAIGHT concur.
                                FOR THE COURT:
                                   FOR THE COURT:



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

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