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

                           UNITED STATES, Appellee
                                        v.
                        Private E2 MICHAEL D. HUDSON
                          United States Army, Appellant

                                   ARMY 20120524

            Seventh U.S. Army Joint Multinational Training Command
                    Christopher T. Fredrikson, Military Judge
          Lieutenant Colonel David E. Mendelson, Staff Judge Advocate
                               (pretrial & addendum)
      Major John L. Kiel, Jr., Acting Staff Judge Advocate (recommendation)


For Appellant: Major Richard E. Gorini, JA; Captain Robert N. Michaels, JA.

For Appellee: Lieutenant Colonel Amber J. Roach, JA.


                                     30 April 2013
                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of conspiracy to distribute a controlled substance, absence
without leave, two specifications of wrongful distribution of methamphetamines, and
two specifications of wrongful distribution of marijuana, in violation of Articles 81,
86, and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 886, 912a (2006)
[hereinafter UCMJ]. Appellant was sentenced to a bad-conduct discharge,
confinement for sixteen months, and reduction to the grade of E-1. The convening
authority approved a sentence of a bad-conduct discharge, confinement for fourteen
months, and reduction to the grade of E-1, and credited appellant with 157 days
confinement against his approved sentence to confinement.

       Appellate defense counsel submitted appellant’s case on its merits to this
court for review pursuant to Article 66, UCMJ. Although appellate defense counsel
did not assign any errors, appellant personally submitted matters pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). In his Grostefon submission,
HUDSON—ARMY 20120524

appellant alleges that his trial defense counsel, Captain (CPT) CC, was ineffective
because, inter alia, he failed to properly investigate appellant’s mental health, failed
to request a mental capacity/responsibility inquiry pursuant to Rule for Courts-
Martial [hereinafter R.C.M.] 706, and advised appellant to “take some of the [Post-
Traumatic Stress Disorder (PTSD)] references out of” any unsworn statement
rendered during the presentencing phase of appellant’s court-martial. Appellant
signed a declaration under the penalty of perjury to this effect, and we attached it to
the record.

                                          LAW

        “In assessing the effectiveness of counsel we apply the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).”
United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011). To establish ineffective
assistance of counsel, the Strickland standard requires appellant to demonstrate
“both (1) that his counsel’s performance was deficient, and (2) that this deficiency
resulted in prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010)
(citing Strickland, 466 U.S. at 687). Because appellant pleaded guilty, “in order to
satisfy the ‘prejudice’ requirement, [appellant] must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

       In United States v. Ginn, 47 M.J. 236, 244–45 (C.A.A.F. 1997), our superior
court held that if a post-trial allegation of ineffective assistance of counsel is raised
for the first time on appeal in a guilty-plea case, and the “post-trial allegation of fact
covers a matter within the record of the earlier plea and no reason is proffered for
rejecting the earlier contrary assertion by appellant, the allegation can be summarily
rejected as inherently incredible, and no hearing need be ordered.” The court in
Ginn also provided six principles for determining when a service court may decide a
legal issue on the basis of post-trial affidavits:

               First, if the facts alleged in the affidavit allege an error that
         would not result in relief even if any factual dispute were resolved
         in appellant’s favor, the claim may be rejected on that basis.

               Second, if the affidavit does not set forth specific facts but
         consists instead of speculative or conclusory observations, the
         claim may be rejected on that basis.

                Third, if the affidavit is factually adequate on its face to
         state a claim of legal error and the Government either does not
         contest the relevant facts or offers an affidavit that expressly




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HUDSON—ARMY 20120524

         agrees with those facts, the court can proceed to decide the legal
         issue on the basis of those uncontroverted facts.

               Fourth, if the affidavit is factually adequate on its face but
         the appellate filings and the record as a whole “compellingly
         demonstrate” the improbability of those facts, the Court may
         discount those factual assertions and decide the legal issue.

                 Fifth, when an appellate claim of ineffective representation
         contradicts a matter that is within the record of a guilty plea, an
         appellate court may decide the issue on the basis of the appellate
         file and record (including the admissions made in the plea inquiry
         at trial and appellant’s expression of satisfaction with counsel at
         trial) unless the appellant sets forth facts that would rationally
         explain why he would have made such statements at trial but not
         upon appeal.

                Sixth, the Court of Criminal Appeals is required to order a
         factfinding hearing only when the above-stated circumstances are
         not met. In such circumstances the court must remand the case to
         the trial level for a [United States v. DuBay, 17 U.S.C.M.A. 147,
         37 C.M.R. 411 (1967),] proceeding. During appellate review of
         the DuBay proceeding, the court may exercise its Article 66
         factfinding power and decide the legal issue.

Id. at 248

                                    DISCUSSION

       Appellant’s allegations of ineffectiveness all involve CPT CC’s representation
in light of appellant’s PTSD diagnosis. Appellant avers that he was diagnosed with
severe PTSD and that he informed CPT CC of that fact. In light of his diagnosis,
appellant argues that CPT CC should have done more to both investigate and utilize
that information. However, we find CPT CC’s investigation was reasonable and his
representation was effective.

       Although appellant filed a declaration supporting his allegations of
ineffectiveness, it is unnecessary to order a response from his trial defense counsel
in this case. See United States v. Ellis, 47 M.J. 20, 22 (C.A.A.F. 1997); United
States v. Lewis, 42 M.J. 1, 6 (C.A.A.F. 1995). The first, second, fourth, and fifth
Ginn factors are relevant to our discussion. After considering these factors, we find
that CPT CC’s performance was not deficient, and appellant was not prejudiced as
he does not aver that he would have changed his plea in this case. Ginn, 47 M.J.
at 247. A review of the record demonstrates CPT CC investigated appellant’s mental



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HUDSON—ARMY 20120524

health issues, and discussed the possible defenses relevant to appellant’s PTSD
diagnosis. He also relied extensively on appellant’s PTSD diagnosis, its causes, and
his resulting drug dependency tied to his PTSD treatment for extenuation and
mitigation purposes.

       Although CPT CC did not interview appellant’s treating physicians, the record
reveals that he did properly investigate the particulars of appellant’s diagnosis. The
military judge and CPT CC engaged in a discussion on the record in which CPT CC
stated that he provided appellant’s mental health records to Dr. NV, a mental-health
professional at the local behavioral health clinic, who then provided CPT CC with an
assessment as to the severity of appellant’s PTSD. Doctor NV’s assessment was that
appellant’s PTSD was not severe, and it did not constitute a severe mental disease or
defect. Based on this opinion, CPT CC stated that he did not believe a R.C.M. 706
inquiry was required. Moreover, appellant stated on the record that his PTSD was
not so severe that it would constitute a defense to the charged offenses:

         MJ: Okay. I do understand that you have PTSD . . . . After
         discussing with your defense counsel, this issue, do you believe
         that you have a severe mental disease or defect?

         ACC: No, Your Honor.

         MJ: And I explained to you the defense of lack of mental
         responsibility before. . . . [A]t the time you committed all of
         these offenses, do you believe that you were able to appreciate the
         nature and quality or wrongfulness of your actions?

         ACC: Yes, Your Honor.

         MJ: Did you understand what you were doing at the time of all
         these charged offenses?

         ACC: Yes, Your Honor.

         MJ: Did you understand what you were doing at the time of these
         charged offenses was wrong?

         ACC: Yes, Your Honor.
         ....
         MJ: . . . [D]o you believe the defense of lack of mental
         responsibility applies in your case?
         ACC: No, Your Honor.




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HUDSON—ARMY 20120524

       From the foregoing, it is clear that CPT CC sufficiently investigated
appellant’s case. Although appellant criticizes the thoroughness of CPT CC’s
pretrial investigation, he does not offer any evidence or information that CPT CC
failed to uncover or should have presented. Based on his investigation, CPT CC
made certain tactical decisions, one of which was not to request an inquiry pursuant
to R.C.M. 706. Appellant was aware of this decision and concurred in the
assessment that his PTSD did not amount to a severe mental disease or defect. Even
now, appellant does not claim that he would have pleaded not guilty and insisted on
going to trial had CPT CC done more. Ultimately, appellant’s assertions about CPT
CC’s investigation consist only of conclusory observations and do not set forth
specific facts supporting his claim. Furthermore, although appellant now avers he
has severe PTSD, the record—to include appellant’s own discussion with the
military judge about this very issue—compellingly demonstrates otherwise.

       We also reject appellant’s assertions that CPT CC did not effectively use
appellant’s mental health diagnosis during presentencing. After appellant entered
pleas of guilty, CPT CC infused references to appellant’s PTSD throughout the
presentencing case, presenting appellant’s mental health as a matter in extenuation
and mitigation. The most serious charges leveled against appellant concerned his
distribution of methamphetamines. In extenuation, CPT CC inserted extensive
information regarding appellant’s PTSD into the stipulation of fact, to include that
appellant “became psychologically and physically dependent on illegal drugs after
his behavioral health treatments became less effective and he was bothered with
nightmares, trouble sleeping, flashbacks, blackouts, and emotional stress.” Finally,
appellant referenced his PTSD in his unsworn statement, stating: “Behavioral health
has tried medication and therapy to help me in my recovery from PTSD and anxiety,
but with no success. Unfortunately, when I have—when I had no other way to turn,
I began to self-medicate. And I committed these offenses to maintain that self-
medication.”

      Accordingly, given the appellate filings, the record as a whole, and in light of
appellant’s plea of guilty, we hold further proceedings pursuant to United States v.
DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967) are unnecessary. Appellant
received effective assistance of counsel.

                                   CONCLUSION

      On consideration of the entire record and the matters personally submitted by
appellant pursuant to Grostefon, we find appellant’s arguments to be without merit.
We hold the findings of guilty and the sentence as approved by the convening
authority correct in law and fact. Accordingly, the findings of guilty and the
sentence are AFFIRMED.




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HUDSON—ARMY 20120524

                       FOR THE
                       FOR THE COURT:
                               COURT:




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




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