UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                                 PEDE, LIND, and KRAUSS
                                  Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Specialist SARAH D. GRANT
                             United States Army, Appellant

                                     ARMY 20120882

                 Headquarters, XVIII Airborne Corps and Fort Bragg
               Tara A. Osborn and David H. Robertson, Military Judges
                    Colonel Paul S. Wilson, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Captain Jack D. Einhorn, JA; Captain Ian M. Guy, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Captain Timothy C. Erickson, JA (on brief).


                                        15 May 2014
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

LIND, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to her pleas, of one specification of attempted larceny; two specifications
of violation of a lawful general order; three specifications of wrongful use of a
controlled substance; one specification of wrongful possession of a controlled
substance; two specifications of communicating a threat, and two specifications of
child endangerment, in violation of Articles 80, 92, 112a, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 880, 892, 912a, 934 (2012) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, confinement for
eighteen months, forfeiture of all pay and allowances, and reduction to the grade of
E-1. The convening authority approved the adjudged sentence.

      This case is before the court for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error alleging that she received ineffective
GRANT—ARMY 20120882

assistance of counsel during the post-trial phase of her court-martial. We find this
issue merits discussion but no relief. Additionally, we find those matters personally
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), are without merit.

                                  BACKGROUND

       In a declaration under penalty of perjury dated 5 April 2013 submitted to this
court, appellant alleges that while she was serving her sentence to confinement at
Miramar, California, her trial defense counsel, Major (MAJ) WD, failed to contact
her regarding her clemency matters.

       Appellant further avers that she mailed MAJ WD a personal clemency letter to
the address provided by MAJ WD, that her letter was not in her clemency matters,
and that, instead of asking the convening authority to disapprove her bad-conduct
discharge as appellant’s letter requested, MAJ WD requested reduction in
confinement in the Rule for Court-Martial [hereinafter R.C.M.] 1105 matters he
submitted on appellant’s behalf. Appellant states in her declaration that her “main
goal of clemency was to request that the bad-conduct discharge be disapproved.”
Appellant describes the content of her clemency letter in her declaration:

             In the clemency letter I wrote and mailed to MAJ [WD]
             for inclusion in my clemency matters, I briefly explained
             my history of addiction, took responsibility for my
             actions, and made a request for clemency.
             I explained to the convening authority that I injured my
             leg in a non-combat accident in Afghanistan.           After
             getting injured I did not heal and then reinjured myself. I
             explained to the convening authority that I became
             addicted to pain killers. I recounted how I went to in-
             patient rehabilitation.    Upon release, my counselors
             recommended that I continue to receive intensive out-
             patient one-on-one treatment. . . . I was never provided
             with intensive out-patient treatment. I was only enrolled
             in the Army Substance Abuse Program (ASAP). . . .
             [U]pon release from in-patient treatment my unit wanted
             to move me to another unit. I had a meeting with my
             command and the ASAP Counselor and expressed my
             concerns about moving to the new unit. I had serious
             concerns about going to the new unit since the person who
             provided me with pills was in the new unit. I was told that
             I would not be moved. However, I was moved to the new
             unit. I relapsed and started to abuse pills again and then I
             was involved in the misconduct on 20 January 2012. . . . I



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GRANT—ARMY 20120882

                             requested that the convening authority to grant clemency
                             by disapproving my bad-conduct discharge. . . . I was still
                             recovering from the injury to my leg that occurred in
                             Afghanistan. . . . I wanted to simply be able to receive
                             treatment for my injury upon my discharge.

       Appellant also alleges she “recently learned” that MAJ WD did not submit to
the convening authority a request to defer her adjudged and automatic forfeitures or
her adjudged reduction in rank even though she advised MAJ WD to request the
deferments when she filled out the “do want to request deferment” blocks in her
Post-Trial and Appellate Rights Advisement Form. 1 Appellant argues these failures
by MAJ WD resulted in a violation of her Sixth Amendment right to effective
assistance of counsel in the post-trial phase of her trial.

       The government submitted an affidavit from MAJ WD dated 10 October 2013.
In his affidavit, MAJ WD states that prior to appellant being taken into custody, he
spoke with her regarding her R.C.M. 1105 matters and provided her with his mailing
address. Major WD acknowledges his receipt of appellant’s handwritten letter. He
states that he transcribed the contents of the letter “to a typed memorandum
submitted to the convening authority.” MAJ WD avers that:

                             In [appellant’s] letter to me, she did not indicate that she
                             wanted the handwritten letter submitted as opposed to me
                             transcribing her letter nor did she ask for her discharge to
                             be disapproved. She was primarily concerned about the
                             amount of time she would be serving in confinement. Her
                             handwritten letter was transcribed due to the fact that it
                             was illegible.

Finally, MAJ WD states he “advised [appellant] of her options regarding deferment
of forfeitures of pay and reduction in rank” and that after reviewing his case notes,
he has “no recollection of her requesting a deferment of forfeitures in pay or in
reduction in rank.”

       On 18 December 2012, MAJ WD submitted a memorandum without enclosures
to the convening authority requesting clemency for appellant pursuant to R.C.M.
                                                            
1
  We note that on 2 November 2012, appellant acknowledged receipt of the staff
judge advocate’s recommendation, which stated “Deferments or Waiver Requests:
None.” Major WD submitted clemency matters on behalf of appellant on
18 December 2012.




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GRANT—ARMY 20120882

1105. The memorandum explained appellant’s history of addiction; her injury in
Afghanistan; her prescription for Percocet; her self-medication; her self-referral to
ASAP, her in-patient treatment, sobriety for five months, and relapse upon transfer
to a new unit despite assurances appellant would not be transferred; appellant’s
expressed remorse for her crimes and steps toward rehabilitation; and mitigating
circumstances of appellant’s childhood and history of medical conditions. Major
WD requested that the convening authority reduce appellant’s term of confinement
from eighteen months to ten months. The convening authority declined to grant
appellant any clemency.

                                        LAW

       The Sixth Amendment guarantees an accused the right to effective assistance
of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011) (citing United
States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). This guarantee extends to
assistance during the post-trial phase of a court-martial. United States v. Lee,
52 M.J. 51, 52 (C.A.A.F. 1999). We review claims that an appellant did not receive
effective assistance of counsel de novo. United States v. Datavs, 71 M.J. 420, 424
(C.A.A.F. 2012).

       “In order to prevail on a claim of 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, 361-62 (C.A.A.F. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). When assessing Strickland’s first prong, courts “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Datavs, 71 M.J. at 424 (quoting Strickland, 466 U.S. at
689). When assessing Strickland’s second prong, “appellant must show a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Lee, 52 M.J. at 53 (citation and internal quotation
marks omitted). In the context of a post-trial claim for ineffectiveness, our superior
court has modified the prejudice prong test, requiring only that there be some
“colorable showing of possible prejudice.” Id. (quoting United States v. Wheelus,
49 M.J. 283, 289 (C.A.A.F. 1998)). When reviewing a claim of ineffectiveness, “a
court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant.” Datavs, 71 M.J. at 424 (quoting
Strickland, 466 U.S. at 697).

       Appellant “bears the burden of establishing the truth of the factual allegations
that would provide the basis for finding deficient performance.” United States v.
Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). “[A]ppellant has the responsibility to bring
to an appellate court’s attention facts rather than mere speculation.” United States v.
Russell, 48 M.J. 139, 140-41 (C.A.A.F. 1998). When there is a factual dispute, we
determine whether further fact finding is required under United States v. Ginn,



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GRANT—ARMY 20120882

47 M.J. 236, 248 (C.A.A.F. 1997). If the facts alleged by appellant would not result
in relief under the high standard set by Strickland, or if appellant’s submission does
not set forth specific facts but consists instead of speculative or conclusory
observations, we may address the claim without the necessity of resolving the
factual dispute. Ginn, 47 M.J. at 248.

                                                               ANALYSIS

       After consideration of the record of trial, the pleadings, and the post-trial
declaration and affidavit, we conclude a fact-finding hearing is not required in this
case. Applying the first Ginn factor, even if we agree with appellant’s assertions
that she: (1) intended the clemency letter be included in her post-trial matters, (2)
requested her discharge be disapproved; and (3) requested deferment of adjudged
and automatic forfeitures and adjudged reduction in rank, appellant has failed to
establish a colorable showing of possible prejudice. See id.; Lee, 52 M.J. at 53.

       With regard to the failure to enclose appellant’s hand-written clemency letter
in her post-trial matters, we find no colorable showing of possible prejudice because
the R.C.M. 1105 matters submitted by MAJ WD incorporated substantially all of the
factual matters appellant posits her personal letter would have explained to the
convening authority. 2

       Regarding appellant’s assertion that she wanted to request her discharge be
disapproved rather than her confinement time reduced, we do not find any
“reasonable probability of a more favorable action by the convening authority” had
her request been submitted, United States v. Clemente, 51 M.J. 547, 552 (Army Ct.
Crim. App. 1999), and conclude that appellant has failed to make “some colorable
showing of possible prejudice.” Lee, 52 M.J. at 53. Appellant avers in her
declaration that she was seeking disapproval of the bad-conduct discharge because
she is “still recovering from the injury to [her] leg that occurred in Afghanistan . . .
and simply wanted to receive treatment for [her] injury upon [her] discharge.”
However, she has presented, and the record reveals, no evidence that she is currently
under continuing care for her ankle injury or requires any future treatment of her
injury. We find the convening authority would have approved her bad-conduct
discharge, despite the purported contents of appellant’s letter, in light of the nature
of her crimes, the dangerous circumstances in which she placed her victims, and the
fact that appellant received a lesser sentence to confinement than the cap agreed to
                                                            
2
  Although appellant’s letter would have provided a personal plea for clemency,
most of the information appellant describes in her declaration was also presented to
the convening authority in her unsworn statement at trial and the handwritten letter
she submitted as a sentencing defense exhibit.




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GRANT—ARMY 20120882

by the convening authority in the quantum portion of the pretrial agreement. See
Clemente, 51 M.J. at 552; United States v. Hood, 47 M.J. 95, 97-98 (C.A.A.F. 1997);
Lee, 52 M.J. at 53. Furthermore, before taking action, the convening authority
considered appellant’s R.C.M. 1105 submission, including substantially all of the
matters in appellant’s letter and the request for disapproval of eight months of
confinement, and declined to grant appellant any clemency. Cf. Lee, 52 M.J. at 53.

       Finally, with regard to the failure to submit a request for deferment of
automatic and adjudged forfeitures and adjudged reduction in rank, appellant also
makes no colorable showing of possible prejudice. First, appellant erroneously
argues that per se prejudice results from a defense counsel’s failure to submit a
request for deferment when an appellant has checked the “do request” block on the
Post Trial and Appellate Rights Form. Second, appellant fails to meet her burden of
showing the R.C.M. 1101(c)(3) test balances in favor of deferment. 3 Appellant’s
declaration offers nothing upon which a deferment of forfeitures or rank might be
supported under R.C.M. 1101(c)(3). The missing letter appellant describes in her
declaration contains no reference to financial difficulty or desired relief from
financial constraints imposed by the sentence. Finally, our review of the record also
indicates an insufficient basis upon which to establish a colorable showing of
possible prejudice. We note appellant’s Enlisted Records Brief (ERB) states she is
married with no children, however appellant made no reference to any dependents
during her unsworn statement at trial, her sentencing case, or in her declaration. On
her Appellate Rights Advisement Form, block 11(g), appellant did not address
whether she had dependents and did not request waiver of forfeitures. The only
financial difficulty to which appellant alluded is in her sworn statement during
sentencing when she stated, “I understand that I’m probably going to lose my very
first house that I worked so long and hard to get; took [sic] it away so easily when
my pay gets stopped,” and in her personal letter submitted during sentencing, in
which she stated, “I may lose my first house when my pay gets stopped,” which both
comprise mere speculation. See Russell, 48 M.J. at 140-41; Ginn, 47 M.J. at 248.
There’s nothing in the record or the declaration to suggest appellant actually
suffered financial difficulty or any indication whatsoever of an intent to provide for
a dependent. Thus, appellant has failed to demonstrate a colorable showing of
possible prejudice from any alleged failure by MAJ WD to request deferment of
automatic and adjudged forfeitures and reduction in rank to the convening authority
on her behalf. As such, her allegation of post-trial ineffective assistance of counsel
fails.

                                                            
3
  R.C.M. 1101(c)(3) requires appellant to demonstrate that “the interest of
[appellant] and the community in deferral outweigh the community’s interests in
imposition of the punishment on its effective date.”




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GRANT—ARMY 20120882

                              CONCLUSION

    The findings of guilty and the sentence are AFFIRMED.

    Chief Judge PEDE and Judge KRAUSS concur.


                                 FOR
                                  FORTHETHE
                                         COURT:
                                            COURT:




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




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