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

                            UNITED STATES, Appellee
                                         v.
                        Private E1 RONALD B. SMITH, JR.
                           United States Army, Appellant

                                   ARMY 20140246

                 Headquarters, 1st Infantry Division and Fort Riley
                         Jeffery R. Nance, Military Judge
                  Colonel Craig E. Merutka, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Yolanda McCray Jones, JA (on
brief); Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R. Inkenbrandt, JA;
Captain Jennifer K. Beerman, JA (on reply brief).

For Appellee: Major A.G. Courie III, JA; Major Steven J. Collins, JA; Captain Anne
C. Hsieh, JA (on brief).


                                      10 June 2015

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


Per Curiam:

       Contrary to his pleas, a panel composed of officer and enlisted members
sitting as a general court-martial convicted appellant of two specifications of assault
consummated by a battery, in violation of Article 128, Uniform Code of Military
Justice, 10 U.S.C. § 928 (2012). The court-martial sentenced appellant to be
discharged from the service with a bad-conduct discharge. The convening authority
approved the findings and the sentence.

      Appellant’s case is now before us for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error, both of which merit discussion, and one
of which merits relief. Appellant also personally raises several matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have reviewed these
matters and they do not merit discussion or relief.
SMITH—ARMY 20140426

                                  BACKGROUND

       Appellant violently attacked his wife, AS, during an extended altercation at
their residence at or near Fort Riley, Kansas, on 18 August 2013. Private First Class
(PFC) ALS, who was present in the residence at the time, testified that appellant
struck AS on her face and body with his hands. Private First Class ALS intervened,
attempting to separate appellant from his wife. Private First Class KW, who was
also present for part of the conflict, advised Private First Class ALS to remove
appellant’s children for safety. Private First Class KW testified that after Private
First Class ALS left the premises, the violence resumed. She saw appellant lock the
doors, go toward his wife, grab her by the neck, and lift her up. Private First Class
KW announced that she would call the police, and the violence ended shortly
afterward. The court-martial found appellant guilty of two specifications of assault
consummated by a battery. Appellant did not raise a claim of unreasonable
multiplication of charges or multiplicity. On his own motion, however, the military
judge decided to treat the two specifications as a single offense for the purpose of
sentencing, thus reducing the maximum possible time of confinement from twelve
months to six months.

       Following the trial, the only matter submitted to the convening authority on
behalf of appellant was a one-page memorandum signed by one of appellant’s two
military defense counsel. The memorandum did not allege any legal errors but did
request clemency. Appellant has submitted an affidavit to this court asserting that
his military defense counsel did not consult with him prior to submission of the
clemency request and that he never had the opportunity to review or approve it. The
affidavit further asserts that appellant would have provided the convening authority
with personal statements from himself and his wife addressing the incident and the
adverse impact of the court-martial. Both of appellant’s military defense counsel,
Captains (CPTs) GV and EG, have submitted affidavits to this court directly
contradicting appellant’s statements. Captain GV asserts in his affidavit that he
repeatedly discussed the matter with appellant and that appellant told him to “just
submit the memorandum.” Captain EG asserts in his affidavit that he witnessed the
conversations between appellant and Captain GV and that appellant also told him
personally that he had no additional clemency matters to present to the convening
authority.

                                   DISCUSSION

                        1. Ineffective Assistance of Counsel

       Appellant’s first assignment of error is that his military defense counsel’s
alleged failure to contact and consult with him prior to the submission of clemency
matters on his behalf denied him his Sixth Amendment right to effective assistance
of counsel and Fifth Amendment right to due process. As a remedy for this



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SMITH—ARMY 20140426

assignment of error, appellant requests that this court remand his case to the
convening authority for new post-trial processing.

       As described above, the affidavits submitted by appellant and his two military
defense counsel are in material conflict. This court cannot decide “disputed
questions of fact pertaining to a post-trial claim, solely or in part on the basis of
conflicting affidavits submitted by the parties.” United States v. Ginn, 47 M.J. 236,
243 (C.A.A.F. 1997). Applying the principles set forth in Ginn, we are unable to
decide whether the military defense counsel’s post-trial actions were deficient
without further proceedings. Id. at 248.

       One possible remedy would be to order a hearing under United States v.
DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), to resolve the conflicts among
the affidavits. Under the facts of this case, however, we are confident that a DuBay
hearing could not possibly put appellant in a better position than the relief appellant
requests, namely, that this court remands the case for new post-trial processing.
Accordingly, to protect the interests of justice and to promote judicial economy, we
will order a new recommendation and action without ruling on the issue of
ineffective assistance of counsel. See United States v. Starks, 36 M.J. 1160, 1164
(A.C.M.R. 1993) (citing United States v. Spurlin, 33 M.J. 443 (C.M.A. 1991)); see
also United States v. Sosebee, 35 M.J. 892 (A.C.M.R. 1992). Appellant shall have
full opportunity to submit matters to the convening authority upon remand in
accordance with Rule for Courts-Martial 1105.

                            2. Other Assignments of Error

       We determine appellant’s other assignment of error, asserting an unreasonable
multiplication of charges, lacks merit under the factors set forth in United States v.
Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001), and does not warrant further
discussion given the separation in “time, circumstance, and impulse” between
appellant’s acts of physical violence against AS. Compare United States v. Rushing,
11 M.J. 95, 98 (C.M.A. 1981); United States v. Clarke, 74 M.J. 627 (Army Ct. Crim.
App. 2015). We also find those matters personally raised by appellant pursuant to
Grostefon, 12 M.J. 431, other than his claim of ineffective assistance of counsel,
lack merit. * In light of the remedy adjudged here and discussion above, we do not
rule on the ineffective assistance of counsel claim in appellant’s Grostefon
submission.




*
  We note there is significant overlap between appellant’s assigned errors and two of
the respective matters he raises pursuant to Grostefon.


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                                  CONCLUSION

      The convening authority’s initial action, dated 17 June 2014, is set aside. The
record of trial is returned to The Judge Advocate General for a new staff judge
advocate recommendation and new action by the same or a different convening
authority in accordance with Article 60(c)-(e), UCMJ. Appellant will also receive a
newly-appointed defense counsel to assist with the preparation of his clemency
matters.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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