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

                           UNITED STATES, Appellee
                                        v.
                         Specialist ROBERT C. ROLLINS
                          United States Army, Appellant

                                   ARMY 20121149

                             Headquarters, Fort Hood
                         James L. Varley, Military Judge
              Colonel Stuart W. Risch, Staff Judge Advocate (advice)
       Colonel Richard W. Rousseau, Staff Judge Advocate (recommendation)


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA (on brief); Major Yolanda McCray Jones, JA; Captain Payum
Doroodian, JA (on reply brief).

For Appellee: Colonel John P. Carrell, JA; Major Steven J. Collins, JA; Captain
Benjamin W. Hogan, JA (on brief).


                                  12 December 2014

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

CAMPANELLA, Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of drunken operation of a vehicle and two
specifications of negligent homicide, in violation of Articles 111 and 134, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 911, 934 (2006). The
military judge sentenced appellant to a bad -conduct discharge, confinement for
thirty-two months, and reduction to the grade of E -1. The convening authority
approved the adjudged sentence.

       This case is before this court for review under Article 66, UCMJ. In one of
his assignments of error, appellant argues he received ineffective assistance of
counsel in the post-trial phase of his court martial when his defense counsel failed to
request deferment and waiver of automatic forfeitures. Without reaching the
ROLLINS—ARMY 20121149

question of ineffective assistance of counsel, we set aside the convening authority’s
action. Accordingly, we need not reach appellant’s second assignment of error
involving dilatory post-trial processing and his personal submissions made pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 1

       Appellant’s convictions result from driving drunk and speeding on or about 3
July 2011 outside of Fort Hood, Texas. Appellant had two passengers in his car and
was racing with another car. The car went airborne when it crossed some railroad
tracks. Upon landing, it skidded into a concrete pole, breaking into three pieces.
The two passengers were killed and appellant lost a leg, among other injuries.

       In a statement made under penalty of perjury, appellant asserts that he told his
civilian defense counsel, Mr. JG, to request a deferment and waiver of forfeitures.
Appellant states that he assumed that Mr. JG made the request . Appellant’s Post-
Trial Advice and Rights form, dated 18 December 2012, also indicates that appellant
desired to request waiver of forfeitures at that time. Appellant avers that after his
case came before this court for review, he learned that no request was made on his
behalf.

       Upon order from this court, Mr. JG filed an affidavit in response, where he
responds that appellant’s primary post-trial concern was to reduce post-trial
confinement and to obtain better medical treatment in confinement. Mr. JG indicates
that appellant’s wife was working, and the loss of appellant’s military pay was
difficult, but not insurmountable for her. Mr. JG notes the Texas state prosecutors
believed appellant received a light sentence from the military and were hesitant to
dismiss the state’s felony indictement against appellant. To bolster his argument
that the state charges be dismissed, Mr. JG explained to the Texas prosecutors the
nature and some consequences of appellant’s sentence, including the punitive
discharge and loss of pay. The Texas prosecutors eventuall y dismissed the
indictment against appellant. Mr. JG indicates that appellant’s wife understood his
efforts to dismiss the state charges trumped the need to obtain more pay.

       These statements are in material factual conflict. We consequently lack a
factual predicate to resolve appellant’s ineffective assistance of counsel claim. See
United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997) (providing several
principles to determine whether a court of criminal appeals can resolve conflicting
affidavits without ordering further factfinding). None of those Ginn factors permit
us to resolve the ineffective assistance of counsel claim.



1
  The convening authority, in his discretion, might grant relief for a claim of post -
trial delay and moot the issue when the record is returned to this court.




                                           2
ROLLINS—ARMY 20121149

      Ordinarily, given the conflicting statements, we would order a DuBay hearing.
See United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (C.M.A. 1967).
Under the facts of this case, however, we are confident a DuBay hearing could not
put appellant in a better position than the relief we provide. Likewise, we are
confident there is no need to further delve into the issue of ineffective assistance of
counsel. Considering the interests of justice and judicial economy, we order a new
review and action. 2

                                   CONCLUSION

       The convening authority’s initial action, dated 3 October 2013, is set aside.
The record of trial is returned to The Judge Advocate General for a new staff judge
advocate post-trial recommendation (SJAR) and new action by the same or a
different convening authority in accordance with Article 60(c) -(f), UCMJ.
Appellant should also receive a newly-appointed defense counsel to assist with the
preparation of his clemency matters.

      Senior Judge TOZZI and Judge CELTNIEKS concur.


                                        FOR THE COURT:




                                        ANTHONY O. POTT
                                        ANTHONY O. POTTINGER
                                        Chief Deputy Clerk of Court




2
  It is foreseeable that appellant might not request deferment and waiver of
forfeitures upon remand out of concern that the Texas prosecutors might reinstate
the felony charges. If no request is made, defense counsel might avoid a subsequent
claim of ineffective assistance of counsel by contemporaneously documenting why
no request was made. See United States v. Fordyce, 69 M.J. 501, 505 (Army Ct.
Crim. App. 2010) (en banc) (“[W]hen possible, we urge the laudatory practice of
some counsel to have an accused cosign [Rule for Courts -Martial] 1105 and 1106
submissions, or at a minimum sign an acknowledgement that the matters submitted
are all the accused wishes to submit.”).




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