UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                         SALUSSOLIA, ALDYKIEWICZ, and EWING
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                            Sergeant AARON J. WHITMAN
                             United States Army, Appellant

                                      ARMY 20170550

                         Headquarters, 25th Infantry Division
                           Kenneth Shahan, Military Judge
                     Colonel Ian R. Iverson, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Jack D.
Einhorn, JA; Captain Benjamin J. Wetherell, JA (on brief); Lieutenant Colonel
Christopher D. Carrier, JA; Major Jack D. Einhorn, JA; Captain Benjamin A.
Accinelli, JA; Captain Benjamin J. Wetherell, JA (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Captain Marc B. Sawyer, JA; Captain
Meredith M. Picard, JA (on brief).

                                         28 June 2019

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

ALDYKIEWICZ, Judge:

       Following his unconditional guilty plea to conduct encompassing ten separate
specifications, appellant asserts that his trial defense counsel were ineffective
because they failed to advise him of a potential motion to suppress for one
specification. For the reasons outlined below, we find no relief is warranted.

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of attempted sexual assault of a child, five
specifications of sexual assault of a child, three specifications of sexual abuse of a
child, and one specification of possessing child pornography, in violation of Articles
80, 120b, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920b, and
934 [UCMJ]. The military judge sentenced appellant to a dishonorable discharge,
confinement for fifteen years, and reduction to the grade of E-1. Pursuant to a
pretrial agreement, the convening authority approved only so much of the sentence
WHITMAN—ARMY 20170550

as provided for a dishonorable discharge, confinement for thirteen years, and
reduction to the grade of E-1.

                                  BACKGROUND 1

       In January 2017, appellant responded to a Craigslist advertisement created by
an undercover law enforcement agent posing as a fourteen-year-old girl. This
response drew a reply, and the resulting conversation quickly devolved into
appellant asking for photos, arranging a meet up, and promising to bring condoms.
In fact, less than two hours after the initial reply, appellant drove to the decoy house
designated for the meeting and was apprehended upon entry by multiple agents, who
seized appellant’s cell phone and condoms.

       The resulting investigation by Army Criminal Investigation Command (CID)
uncovered additional acts of online and sexual misconduct. This included appellant
possessing child pornography and engaging in oral, vaginal, and anal sex with a
thirteen-year-old girl after grooming her through explicit communications. Within
these communications, appellant made repeated references to sexual experiences and
desires, to include asking the young girl whether she had ever masturbated or had an
orgasm. Appellant also sent her pictures of his exposed buttocks and erect penis.

       The government charged appellant with twelve specifications related to
attempted sexual assault of a child, attempted sexual abuse of a child, sexual assault
of a child, sexual abuse of a child, and possessing child pornography, in violation of
Articles 80, 120b, and 134, UCMJ. 2 The offenses carried a maximum punishment
including more than 250 years of confinement.

      Prior to trial, the parties entered into a pretrial agreement. As part of this
agreement, appellant agreed to plead guilty to eleven of the twelve specifications,
and the convening authority agreed to dismiss the final specification and disapprove
any confinement in excess of thirteen years. Within the agreement, appellant also
agreed to “waive all waivable motions, including motions to suppress evidence and
motions to introduce [Mil. R. Evid.] 412 evidence.”

      During appellant’s plea inquiry, the military judge discussed the “waive all
waivable motions” provision. As part of this colloquy, the military judge noted this
provision referenced “motions to suppress evidence,” but he also confirmed that

1
  We have also considered the matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and we have determined that
they warrant neither discussion nor relief.
2
 The government initially charged fourteen specifications, but then dismissed two
specifications prior to arraignment.



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appellant understood “that this term of your pretrial agreement means that you give
up the right to make any motion which by law is given up when you plead guilty.”

       Notably, during trial, the military judge rejected appellant’s guilty plea for
the lone specification of attempted sexual abuse of a child, and he also merged
several specifications for purposes of sentencing. The military judge discussed both
of these rulings with appellant prior to officially accepting his guilty plea. The end
result was that appellant pleaded guilty to ten specifications and faced a maximum
punishment including 135 years of confinement.

       The military judge ultimately sentenced appellant to a dishonorable discharge,
confinement for fifteen years, and reduction to the grade of E-1. Pursuant to the
pretrial agreement, the convening authority approved only so much of the sentence
as provided for a dishonorable discharge, confinement for thirteen years, and
reduction to the grade of E-1.

       On appeal, appellant asserts that his trial defense counsel were ineffective by
failing to “identify and advise” appellant of a potential Fourth Amendment violation.
More specifically, appellant asserts that his counsel were deficient for failing to tell
him that law enforcement exceeded the scope of the search authorization in locating
the videos of child pornography on his cell phone.

      In an affidavit filed to this court, 3 appellant asserts this information would
have impacted his decision to plead guilty to The Specification of Charge III:

             I was never informed by my TDS counsel about any
             mistake made by CID in searching my phone, or
             that it was possible that the child pornography
             charge could be dismissed because of the search of
             the photos on my phone was outside the scope of
             the search warrant. If I had been advised of this
             violation, I would NOT had pled guilty, and I would
             have fought to have that charge dismissed. I would
             have contested the case at trial with judge alone.

             ...




3
 Appellant moved to attach four documents on appeal: (1) his affidavit; (2) a CID
Case Activity Summary; (3) the chain-of-custody document for the cell phone and
condoms seized during his apprehension; and (4) a draft motion to suppress evidence
prepared by his trial defense counsel.



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             Why would I plead guilty to something the government
             can’t prove because the evidence would be suppressed? I
             would have never pled guilty if I was informed about the
             issue with the scope of the search of my phone.

       Appellant’s affidavit does not address his comments during the plea inquiry
about waiving all “motions to suppress evidence,” but his brief explains this waiver
was based on a separate motion to suppress. To support this explanation, appellant
attached a draft motion to suppress evidence from his trial defense counsel related to
a potential Fifth Amendment violation. Notably, this draft motion argued that,
absent the alleged violation, the government “would not have discovered the
evidence which led to the allegations of Charges II and III.” As such, the potential
Fifth Amendment violation encompassed nine additional specifications from the
alleged Fourth Amendment violation.

        Following appellant’s claim of ineffective assistance of counsel, appellant’s
trial defense counsel submitted affidavits to this court. In their affidavits, both
counsel firmly assert that they identified and researched the Fourth Amendment
issue. Appellant’s lead trial defense counsel wrote, “I am certain that I analyzed
this issue in preparation for trial, decided a motion to suppress was unlikely to be
successful, and discussed the issue with my co-counsel.” The assistant trial defense
counsel said the defense was “aware of and discussed the fact that law enforcement
may have exceeded the scope of the initial search authorization.” She added that
these conversations “stand out in my memory” because the authorizing magistrate
was subsequently assigned to Trial Defense Services, and the defense had to “wall
him off from any discussions of the case.”

       Neither counsel, however, can remember whether they actually discussed this
Fourth Amendment issue with appellant. Both counsel assert they “likely” discussed
the issue with him, but neither have any firm notes or recollections of any such
conversation. The lead counsel wrote, “I believe I did discuss this issue with him
and indicated it was unlikely to succeed,” but “[w]ell over a year after the trial, I
cannot honestly confirm with one hundred percent certainty that I discussed in detail
this specific potential motion with [him].” The lead counsel further explained that
their primary focus was the Fifth Amendment issue, which they determined had a
“higher chance of success” (albeit “less than 50 percent”), but appellant still
“expressed his desire to pursue a deal to plead guilty to the offenses.”

       In their affidavits, both counsel describe their discussions with appellant
about the pretrial agreement. Both counsel assert they discussed every provision
with appellant, described their likelihood of success in a contested trial, and ensured
that appellant understood the maximum punishment for the charged offenses.
Pursuant to these conversations, the lead counsel stated that appellant “expressed his
desire to pursue a plea deal in order to limit his exposure” and “desired to plea to the



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offenses charged, which I still believe was the best way to limit his exposure in this
case.” Finally, lead counsel noted that during the pendency of the plea negotiations,
the government was aware of additional “underage females” with whom appellant
communicated, potentially exposing appellant to additional charges and “MRE 413”
propensity evidence.

                              LAW AND DISCUSSION

       Ineffective assistance of counsel claims are reviewed de novo. United States
v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015). To establish ineffective assistance of
counsel, “an appellant must 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 v. Washington, 466 U.S. 668,
687 (1984)). The two prongs of Strickland can be analyzed independently; if
appellant fails either prong, his claim fails. Strickland, 466 U.S. at 697.

       “An appellant must establish a factual foundation for a claim of
ineffectiveness; second-guessing, sweeping generalizations, and hindsight will not
suffice.” United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005) (citing United
States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002); United States v. Alves, 53 M.J. 286,
289 (C.A.A.F. 2000); United States v. Gray, 51 M.J. 1, 19 (C.A.A.F. 1999)).

        “Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010). “An ineffective-assistance claim can function
as a way to escape rules of waiver and forfeiture and raise issues not presented at
trial, and so the Strickland standard must be applied with scrupulous care, lest
‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the
right to counsel is meant to serve.” Harrington v. Richter, 562 U.S. 86, 105 (2011)
(quoting Strickland, 466 U.S. at 689-90). Additionally, “the strong societal interest
in finality has ‘special force with respect to convictions based on guilty pleas.’” Lee
v. United States, 137 S. Ct. 1958, 1967 (2017) (quoting United States v. Timmreck,
441 U.S. 780, 784 (1979)).

        “In the guilty plea context, the first part of the Strickland test remains the
same – whether counsel’s performance fell below a standard of objective
reasonableness expected of all attorneys.” United States v. Bradley, 71 M.J. 13, 16
(C.A.A.F. 2012) (citing Hill v. Lockhart, 474 U.S. 52, 56-58 (1985)). To meet this
burden, appellant must show his “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. Courts must also “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Id. at 689. This presumption can be rebutted by “showing specific errors [made by
defense counsel] that were unreasonable under prevailing professional norms.”
United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001) (citations omitted).



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       While the first prong remains the same for guilty pleas, “[t]he second prong is
modified to focus on whether the ‘ineffective performance affected the outcome of
the plea process.’” Bradley, 71 M.J. at 16 (quoting Hill, 474 U.S. at 59). “[T]o
satisfy [this] requirement, the defendant 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.” Id. (quoting Hill, 474 U.S. at 59). “‘A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a
different result.” Id. at 16-17 (quoting Cullen v. Pinholster, 563 U.S. 170, 189
(2011) (citation omitted).

      Most recently, in Lee v. United States, the Supreme Court explained that
“[c]ourts should not upset a plea solely because of post hoc assertions from a
defendant about how he would have pleaded but for his attorney’s deficiencies.
Judges should instead look to contemporaneous evidence to substantiate a
defendant’s expressed preferences.” 137 S. Ct. at 1967. Under the “unusual
circumstances” of that case, id. at 1967, the Court concluded that “Lee’s claim that
he would not have accepted a plea had he known that it would lead to deportation is
backed by substantial and uncontroverted evidence.” Id. at 1969.

        By contrast, in this case, the “contemporaneous evidence” undermines
appellant’s claim of how he would have pleaded but for the alleged deficiency.
Appellant avers that if he had learned “that it was possible that the child
pornography charge could be dismissed,” then he “would have contested the case at
trial.” (emphasis added). The contemporaneous evidence clearly shows otherwise.

       Most notably, the Fifth Amendment motion provided the exact possibility that
appellant asserts would have caused him to plead not guilty. In fact, rather than
merely attacking the single child pornography specification, the Fifth Amendment
motion—which appellant himself attached to the record—sought to suppress the
evidence for the child pornography specification and nine additional specifications.
Put another way, the potential relief from the Fifth Amendment motion both
subsumed and exceeded the potential relief from the Fourth Amendment issue.
Further, his defense counsel believed this suppression motion, a motion appellant
willingly and knowingly waived for the benefit of a deal, was the motion counsel
believed had a greater likelihood of success.

       Rather than contesting the case, however, appellant entered into a pretrial
agreement that dismissed one specification and provided a set cap on confinement.
For his part, appellant agreed to plead guilty to the remaining offenses and “waive
all waivable motions,” to include any “motions to suppress evidence.” Appellant
then discussed this clause on the record with the military judge, who confirmed that
appellant understood “that this term of your pretrial agreement means that you give
up the right to make any motion which by law is given up when you plead guilty.”



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Essentially, appellant declined to pursue the exact course of action that he now
claims would have changed his plea.

       In conclusion, when considering: (1) appellant’s significant confinement
exposure, (2) the overwhelming nature of the evidence against appellant and the
egregious nature of the crimes committed, (3) the possibility of additional charges
considering the information known by the government during the pendency of plea
negotiations in appellant’s case, and (4) appellant’s informed decision to waive a
motion that addressed the child pornography evidence as well as evidence related to
additional specifications, we find appellant’s claim to ring hollow. Under the
circumstances of appellant’s case, we find, at a minimum, that appellant has failed
to “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.” Bradley,
71 M.J. at 16 (quoting Hill, 474 U.S. at 59).

                                   CONCLUSION

   The findings of guilty and the sentence are AFFIRMED.

   Senior Judge SALUSSOLIA and Judge EWING concur.

                                           FOR THE
                                           FOR THE COURT:
                                                   COURT:




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




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