                       UNITED STATES, Appellee

                                    v.

              Rickie E. PARRISH, Sergeant First Class
                        U.S. Army, Appellant

                              No. 07-0079

                       Crim. App. No. 20020916

       United States Court of Appeals for the Armed Forces

                        Argued October 2, 2007

                       Decided December 5, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel

For Appellant: Captain Richard P. Pizur (argued); Lieutenant
Colonel Steven C. Henricks and Captain Seth A. Director (on
brief); Colonel John T. Phelps II, Colonel Christopher J.
O’Brien, and Captain Fansu Ku.

For Appellee: Captain Mark E. Goodson (argued); Major Tami L.
Dillahunt, Major Elizabeth G. Marotta, and Captain Magdalena A.
Acevedo (on brief).

Military Judge:   Denise K. Vowell


       This opinion is subject to revision before final publication.
United States v. Parrish, No. 07-0079/AR

     Judge ERDMANN delivered the opinion of the court.

     Following a guilty plea, Sergeant First Class Rickie E.

Parrish was convicted of sodomy with a child under twelve and

several specifications of indecent acts with the same child.      He

was sentenced to fifteen years confinement, a dishonorable

discharge, and reduction to E-1.       On appeal to the United States

Army Court of Criminal Appeals, Parrish argued that the

convening authority failed to defer the adjudged reduction in

grade pursuant to a material term of the pretrial agreement, as

that term had been explained to him by his defense attorney.

Relying on the fourth factor in United States v. Ginn, 47 M.J.

236, 243 (C.A.A.F. 1997), the Court of Criminal Appeals denied

relief without ordering an evidentiary hearing on the grounds

that post-trial affidavits, read together and within the context

of the record as a whole, demonstrated the improbability of

Parrish’s assertions.   United States v. Parrish, No. ARMY

20020916, slip op. at 10-12 (A. Ct. Crim. App. Oct. 10, 2006).

     We undertook review of this case to determine whether the

Court of Criminal Appeals correctly relied on this Ginn factor

to resolve Parrish’s post-trial claim without an evidentiary




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United States v. Parrish, No. 07-0079/AR

hearing.1     We hold that the Court of Criminal Appeals’ decision

to resolve the issue without a post-trial evidentiary hearing

was error.

                                  BACKGROUND

    A.   The adjudged reduction in Parrish’s grade

         At the time of his court-martial, Parrish was a Sergeant

First Class E-7.     His adjudged sentence included reduction in

grade to E-1.     Under Article 57(a)(1), Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 857(a)(1) (2000), an adjudged

reduction in grade takes effect either fourteen days after the

day that sentence is adjudged or the day on which the sentence

is approved by convening authority action, whichever is earlier.

The convening authority approved Parrish’s sentence 165 days

after it was adjudged, so his reduction took effect fourteen

days after sentencing.

         On appeal to the Court of Criminal Appeals, Parrish filed

an affidavit asserting that his defense attorney had informed

him that the pretrial agreement provided for a deferral of the

reduction in grade so that his family would receive pay at the


1
    The granted issue states:

         WHETHER THE ARMY COURT OF CRIMINAL APPEALS PROPERLY
         EXERCISED ITS FACTFINDING POWER UNDER ARTICLE 66(C),
         UCMJ, IN RESOLVING THE QUESTION OF WHETHER THE
         GOVERNMENT VIOLATED A MATERIAL TERM OF APPELLANT’S
         PRETRIAL AGREEMENT DESPITE CONFLICTING AFFIDAVITS.

65 M.J. 104, 105 (C.A.A.F. 2007).

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United States v. Parrish, No. 07-0079/AR

E-7 grade until the convening authority took action.    After the

convening authority’s action, he would then receive an

additional six months pay at the E-1 grade.   Because the

convening authority’s action did not include deferral of the

reduction in grade, Parrish’s dependants received his pay at the

E-1 grade rather than at the higher E-7 grade for approximately

five months.

     Parrish’s pretrial agreement does not provide for a

deferral of reduction in grade but does contain the following

provision related to deferral of forfeitures:

     The convening authority agrees to disapprove any
     confinement adjudged in excess of FIFTEEN (15)
     years. The [c]onvening authority also agrees to
     defer any adjudged and statutory forfeitures
     until action and to waive statutory forfeitures
     for a period of six months at action. Any other
     lawfully adjudged punishment may be approved.

At the court-martial the military judge reviewed the pretrial

agreement, including the above-referenced portion, with Parrish,

defense counsel and trial counsel.   Parrish, his counsel and

trial counsel each told the military judge the written pretrial

agreement contained all the understandings, promises, and

agreements between the parties, and each affirmatively

disclaimed any unwritten agreements.   They also asserted that

the quantum portion of the pretrial agreement correctly

memorialized the convening authority’s promises to Parrish in

exchange for his guilty pleas.



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United States v. Parrish, No. 07-0079/AR

B.   Proceedings before the Court of Criminal Appeals

      In Parrish’s affidavit filed with the Court of Criminal

Appeals, he asserted that he was informed by his defense counsel

that deferral of the reduction was accomplished by the following

phrase in the above-referenced provision of the pretrial

agreement:   “defer adjudged and statutory forfeiture until

action and then [waive] statutory forfeiture for six months.”2

Parrish also asserted that his wife received the same

explanation from the trial counsel and assistant trial counsel.

      Parrish also filed an affidavit from his wife which alleged

that she had been told by the trial counsel that she would

receive her husband’s pay at the E-7 grade.   She further alleged

that she had complained to trial counsel and the convening

authority that the checks she received for her husband’s pay

after his sentence was adjudged were not at the E-7 grade.

      Parrish also filed a letter from Staff Judge Advocate

Colonel (COL) Mortimer Shea Jr., which was addressed to

Parrish’s wife.   Consistent with Parrish’s assertions, the

letter acknowledged that Parrish’s wife should have received her

husband’s pay at the E-7 grade from the date of the court-

martial until the convening authority’s action.   Parrish also

filed a follow-up letter from COL Shea’s successor in the Office


2
  This assertion, if true, provides a possible explanation as to
why Parrish did not object to the terms of the pretrial
agreement at trial.

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United States v. Parrish, No. 07-0079/AR

of the Staff Judge Advocate that was sent five months later

explaining that COL Shea made a mistake and that the reduction

was not deferred.

        Based on the affidavits of Parrish and his wife and the

letter from COL Shea, the Government conceded in its responsive

brief that there was a sub rosa agreement to defer forfeitures

at the E-7 grade.    The Court of Criminal Appeals, citing

Parrish’s affidavit as the only document “clearly asserting that

there was a sub rosa agreement,” declined to accept the

Government’s concession without more evidence.    United States v.

Parrish, No. ARMY 20020916, slip op. at 2 (A. Ct. Crim. App.

Mar. 17, 2005) (order).

        The lower court ordered the filing of additional affidavits

from Government trial counsel, defense trial counsel, and COL

Shea.    The court asked the affiants to respond to specific

questions concerning whether he or she made a sub rosa or

unwritten agreement to defer the reduction in grade, whether he

or she knew about any unwritten agreement or knew about any

advice or promises given to Parrish and his wife that reduction

from E-7 to E-1 would be deferred until action.    The court also

invited the submission of other evidence or affidavits that

would address the question of whether a sub rosa or unwritten

agreement existed.




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United States v. Parrish, No. 07-0079/AR

     The requested affidavits and other documents were filed.

All of the affiants denied knowledge of a sub rosa agreement.

The filings, however, were less consistent as to the intended

content of the pretrial agreement.    An e-mail exchange between

Government appellate counsel and trial counsel that took place a

few days before the Government’s initial concession was filed

with the Court of Criminal Appeals.   In the e-mails the trial

counsel recalled that deferral of the reduction until action was

part of the pretrial agreement.   Trial counsel wrote more

specifically, “Our thinking on the issue was that we wanted to

minimize the impact the reduction to E-1 would have on his

family and his daughter in particular as she was the victim in

this case.”   In trial counsel’s subsequent affidavit, however,

he did deny the existence of a sub rosa agreement.

     Relying on the pretrial agreement, the providency inquiry,

and the fact that Parrish’s clemency submissions did not

complain about the E-1 grade, the Court of Criminal Appeals

dismissed Parrish’s assertions without ordering an evidentiary

hearing on the grounds that the “affidavits, read together and

within the context of the record as a whole, demonstrate the

improbability of appellant’s claim that an unwritten agreement

existed to defer the reduction in grade until action and was a

material term of the pretrial agreement.”   Parrish, No. ARMY

20020916, slip op. at 10-12.



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United States v. Parrish, No. 07-0079/AR

                                  ANALYSIS

       “Article 66(c) does not authorize a Court of Criminal

Appeals to decide disputed questions of material fact pertaining

to a post-trial claim, solely or in part on the basis of

conflicting affidavits submitted by the parties.”    United States

v. Fagan, 59 M.J. 238, 241 (C.A.A.F. 2004) (citing Ginn, 47 M.J.

at 243).    Rather, the record of trial must be expanded through

an evidentiary hearing conducted in accordance with United

States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

       In Ginn, however, the court set forth a number of factors

under which a post-trial evidentiary hearing would not be

required.    47 M.J. at 248.   The fourth Ginn factor precludes the

need for a DuBay hearing when the appellate filings and the

record as a whole “compellingly demonstrate” the improbability

of an appellant’s assertions.    Id.   Focusing on whether a sub

rosa agreement existed, the Court of Criminal Appeals used the

fourth Ginn factor to resolve the issue without a DuBay hearing.3



3
    The six factors articulated in Ginn are as follows:

(1) 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;
(2) 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;
(3) 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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United States v. Parrish, No. 07-0079/AR

     Whether the Army Court of Criminal Appeals correctly

resolved Parrish’s post-trial claim without a factfinding

hearing is a legal issue that we review de novo.    United States

v. Sales, 56 M.J. 255, 258 (C.A.A.F. 2002).    We agree with the

Court of Criminal Appeals’ conclusion that the appellate filings

together with the record as a whole compellingly demonstrate the

improbability of a sub rosa agreement.     That conclusion,

however, does not address the actual allegation in Parrish’s

affidavit –- that he and his wife had been misinformed by both

defense counsel and trial counsel as to whether the pretrial

agreement deferred the reduction to E-1.    This allegation raises

the possibility that Parrish and the Government shared a mutual

misunderstanding as to the terms of the agreement.

     Parrish’s affidavit clearly asserts that he and his wife

were misinformed by his attorney and trial counsel as to the




agrees with those facts, the court can proceed to decide the
legal issue on the basis of those uncontroverted facts;
(4) 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;
(5) when an appellate claim 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, unless the
appellant sets forth facts that would rationally explain why he
would have made such statements at trial but not upon appeal;
(6) the Court of Criminal Appeals is required to order a
factfinding hearing only when the above-stated circumstances are
not met.

United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).

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United States v. Parrish, No. 07-0079/AR

effect of the pretrial agreement.    The affidavit does not assert

that there was a sub rosa or unwritten agreement.    Parrish’s

wife’s affidavit asserts that she was misinformed as well and

that she complained to the convening authority and trial counsel

when the checks she received for her husband’s pay after his

sentence was adjudged were not at the E-7 grade –- providing

support for Parrish’s assertion that they had been informed that

the reduction would be deferred.

     The e-mail exchange between the trial counsel and

Government appellate counsel together with trial counsel’s

subsequent affidavit reflect that the trial counsel believed at

some point that the pretrial agreement provided for a deferral

of the reduction.   In the e-mail exchange, trial counsel

indicated that deferral of reduction was included to minimize

the impact that reduction would have on Parrish’s daughter, the

victim in the case.   His subsequent affidavit states in part:

     I don’t recall a specific conversation, but I may have
     told [Parrish’s wife] that [Parrish] would continue to
     receive E-7 pay for as long as possible. I say that
     because that is my recollection of what the agreement
     was to have said, and if we discussed issues of
     reductions in pay, given that English was not her
     first language, that would have been how I would have
     phrased it.

     The letter from COL Shea shows that he too was initially

under the impression that Parrish’s pay would continue at the E-

7 grade until the convening authority’s action.   There is also

an affidavit from the assistant trial counsel indicating that


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United States v. Parrish, No. 07-0079/AR

after court-martial, Parrish’s wife made a significant number of

calls to the Office of the Staff Judge Advocate.    Although

assistant trial counsel states that she forwarded most of the

calls to trial counsel or the victim-witness liaison, she thinks

“they were all about money and reimbursement for certain

expenses.”   We note that this case is somewhat unique in that

Government witnesses provide some support for Parrish’s actual

assertion and that the Government attempted to concede at the

Court of Criminal Appeals.

     This is not to say that there is not conflicting evidence

in the record on this issue.   To start, the pretrial agreement

itself does not contain an express term covering a deferral of

reduction in grade.   In addition, the affidavit from assistant

trial counsel, contrary to the assertions of Parrish’s wife,

denies ever telling her that the pretrial agreement included

deferment of reduction in grade until the convening authority’s

action.   Furthermore, COL Shea subsequently provided an

affidavit that characterized his previous representation as

“simply a letter that contain[ed] a mistake” and a follow-up

letter to Parrish’s wife from COL Shea’s successor in the Office

of the Staff Judge Advocate similarly characterizes COL Shea’s

representation in this regard as an error.

      Statements in the affidavits from two defense counsel also

contradict Parrish’s assertions.     The defense counsel who



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United States v. Parrish, No. 07-0079/AR

handled the clemency matters averred that he does not recall

ever talking with Parrish about an agreement to defer reduction.

Similarly, an affidavit from the initial defense counsel denies

ever telling Parrish or Parrish’s wife that the pretrial

agreement included deferment of any mandatory reduction in grade

until action.   But in that same affidavit the initial defense

counsel also averred that it was his practice to discuss the

possibility of deferring reductions and forfeitures with his

clients and to discuss deferment with his clients if that issue

arose in negotiations with the Government.   Notwithstanding

Government trial counsel’s recollection that deferral of

reduction was a consideration, the lead defense counsel does not

recall discussing those issues with Parrish.

      Confusion, inconsistency, and factual gaps pervade these

appellate filings and raise questions as to their reliability,

accuracy, and completeness.   This record does not support a

conclusion that the improbability of Parrish’s actual assertions

has been compellingly demonstrated under the fourth Ginn factor.

Nor do we find applicable any of the other Ginn factors which

would allow resolution without a post-trial evidentiary hearing.

In these circumstances, resolution of the issue requires

factfinding:    to develop the full factual scenario underlying

Parrish’s claim that he and his wife were misinformed by both

defense counsel and trial counsel as to the effect of the



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United States v. Parrish, No. 07-0079/AR

written pretrial agreement on his pay; to consider, if

applicable, whether deferment of reduction in grade was material

to Parrish’s decision to enter a guilty plea; and to uncover

whether prejudicial legal errors occurred.   In this context, we

remand for a DuBay hearing.    See United States v. Sherman, 51

M.J. 73, 76 (C.A.A.F. 1999).

                                 DECISION

     The decision of the United States Army Court of Criminal

Appeals is set aside.   The record of trial is returned to the

Judge Advocate General of the Army for submission to a convening

authority for a hearing pursuant to United States v. DuBay, 17

C.M.A. 147, 37 C.M.R. 411 (1967), to address the facts

underlying Parrish’s claim of error as to deferral of his

reduction in grade.   The military judge at such hearing shall

make findings of fact and conclusions of law and then return the

record of trial to the Court of Criminal Appeals for further

review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).

Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall

apply.




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