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

                          UNITED STATES, Appellee
                                       v.
                Chief Warrant Officer Three STEVEN VALENCIA
                         United States Army, Appellant

                                     ARMY 20130558

         Headquarters, United States Army Special Operations Command
                  Tara A. Osborn, Military Judge (arraignment)
                   James W. Herring, Jr., Military Judge (trial)
   Colonel Robert L. Bowers, Staff Judge Advocate (pretrial & recommendation)
    Lieutenant Colonel Charles R. Pritchard, Jr., Acting Staff Judge Advocate
                      (addendum & supplemental addendum)


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Brian
D. Andes (on brief); Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Brian D. Andes (on supplemental brief).

For Appellee: Major A.G. Courie, III, JA; Major Daniel D. Derner, JA; Captain
Timothy C. Donahue, JA (on brief).


                                      23 October 2015

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

      A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of four specifications of aggravated sexual contact with a child
who had not attained the age of 12 years, in violation of Article 120, Uniform Code
of Military Justice, 10 U.S.C. § 920 (2006 & Supp. III) [hereinafter UCMJ]. The
convening authority approved the adjudged sentence of a dishonorable discharge and
confinement for eight years.

       This case is before us for review under Article 66, UCMJ. Appellant raises
three assignments of error, two of which require discussion but no relief. The
VALENCIA—ARMY 20130558

matters personally raised by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), are without merit.

                                  BACKGROUND

       Appellant pleaded guilty to four specifications of aggravated sexual contact
with his ten-year-old daughter. Appellant entered into a stipulation of fact admitting
to the misconduct underlying these offenses, and engaged in a colloquy with the
military judge freely admitting to his misconduct. Appellant also stated on the
record he was “absolutely” satisfied with the representation of his military defense
counsel, Captain (CPT) LC.

        On appeal, in a statement made under penalty of perjury, appellant now
asserts he received ineffective assistance when his defense counsel coerced him into:
(1) pleading guilty, (2) entering into a pretrial agreement, and (3) signing a false
stipulation of fact that was completed before the convening authority accepted his
initial offer to plead guilty. Appellant also avers that CPT LC had a conflict of
interest in his case due to her prior professional relationship with the trial counsel,
and that CPT LC improperly advised appellant of possible defenses in his case.
Captain LC submitted a sworn affidavit refuting appellant’s claims of ineffective
assistance. Her affidavit does conflict in part with appellant’s affidavit.

       Appellant also avers that a new staff judge advocate recommendation and a
new action are required where appellant was not served with a new matter and given
ten days to submit comments in accordance with Rules for Courts-Martial
[hereinafter R.C.M.] 1105 and 1106(f)(7).

                             LAW AND DISCUSSION

                          1. Ineffective Assistance of Counsel

       The Sixth Amendment guarantees an accused the right to the 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)). To establish that
his counsel was ineffective, appellant must satisfy the two-part test, “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)). We review both prongs of the
Strickland test de novo. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)
(citing United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001) and United
States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997)).

        As a threshold matter, because appellant and CPT LC filed conflicting post-
trial statements, we look to whether a post-trial evidentiary hearing is required.



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VALENCIA—ARMY 20130558

United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Applying the fourth Ginn
factor, we conclude that an evidentiary hearing is not warranted and that appellant
has not met his burden of establishing ineffective assistance of counsel. Id.
Assuming appellant’s affidavit is factually adequate on its face, “the appellate
filings and the record as a whole ‘compellingly demonstrate’ the improbability of
those facts,” and we may therefore “discount those factual assertions and decide the
legal issue.” Id. Additionally, after applying the fifth Ginn factor, we are not
convinced that appellant has “rationally explain[ed]” the contradiction between his
statements during his guilty plea, to include his providence inquiry, and his
statements made under penalty of perjury here. Id.

       Appellant’s affidavit and his statements made at trial are irreconcilable. At
every stage of the trial and during the plea colloquy, appellant noted his satisfaction
with his defense counsel and his legal right to plead not guilty, and he provided a
factual predicate for his guilt. We “must consider these admissions to determine
whether a disputed issue of fact has been raised which requires that a DuBay hearing
be ordered.” Ginn, 47 M.J. at 244. At his court-martial, appellant did not raise any
concern of an allegedly coerced plea, nor did he object to his stipulation of fact after
an explanation of its purpose and uses. Appellant did not object to his pretrial
agreement after an exhaustive six-page explanation of its terms by the military
judge, and did not mention potential unpursued defenses or problematic conflicts of
interest regarding CPT LC. The following colloquy between the military judge and
appellant regarding the pretrial agreement and appellant’s satisfaction with CPT
LC’s representation is instructive:

             MJ: Chief Valencia, have you had enough time to discuss
             this agreement with your defense counsel?

             ACC: Yes, Your Honor.

             MJ: Did you enter the agreement of your own free will?

             ACC: Yes, Your Honor.

             MJ: Has anyone tried to force you to make this pretrial
             agreement?

             ACC: No, Your Honor.

             ....

             MJ: Chief Valencia, are you pleading guilty not only
             because you hope to receive a lighter sentence, but also
             because you are convinced that you are, in fact, guilty?



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             ACC: Yes, Your Honor.

             ....

             MJ: Chief Valencia, have you had enough time and
             opportunity to discuss this case with your defense
             counsel?

             ACC: Yes, Your Honor.

             MJ: Are you satisfied that your defense counsel’s advice
             is in your best interest?

             ACC: Yes, Your Honor.

             MJ: Are you satisfied with your defense counsel?

             ACC: Absolutely, Your Honor.

             (emphasis added).

        In our view, appellant’s trial statements “compellingly demonstrate” the
improbability of the facts alleged in his statement to this court made under penalty
of perjury. Ginn, 47 M.J. at 248. Given our application of the fourth and fifth Ginn
factors listed above, we are convinced appellant has not carried his burden on the
first prong of Strickland.

                                   2. New Matter

       In the post-trial processing of appellant’s case the victim (Miss SV) was
provided the opportunity to “submit a written statement to the convening authority
after the sentence [was] adjudged” in accordance with National Defense
Authorization Act (NDAA) for Fiscal Year 2014, Pub. L. No 113-66, § 1706(a)(2),
127 Stat. 960-61 (2013). 1 Miss SV was served with a copy of the record of trial and


1
  The NDAA for Fiscal Year 2014 was signed into law by the President on 26
December 2013. The amendment to Article 60, UCMJ, allowing victims “to submit
matters for consideration by the convening authority” is found in § 1706(a), 127
Stat. 960-61, of the NDAA (“Victim Submission of Matters for Consideration by
Convening Authority”). This section of the NDAA does not designate an effective
date, and therefore we presume it became effective immediately. See Gozlon-Peretz
v. United States, 498 U.S. 395, 404 (1991).



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VALENCIA—ARMY 20130558

the Staff Judge Advocate’s Recommendation (SJAR) on 8 February 2014. A twenty-
day delay extending Miss SV’s ten-day response period was granted by the staff
judge advocate (SJA). Miss SV then notified the military justice office she did not
intend to submit matters. On 24 February 2014, the addendum to the SJAR was
signed and the convening authority took action on that date. One day later, the
military justice office received an acknowledgement of “Receipt For Copy of Record
of Trial and Staff Judge Advocate’s Recommendation” from Miss SV. Miss SV
printed the following in the remarks section of the form dated 21 February 2014:

            I’m shocked that this is even possible. He was sentenced
            8 years. 8 years. I remember those words so intensly
            (sic), so much I felt numb at the time. 7 months. 7
            months has passed and it feels like it’s only been 2
            months. However if this is how he wishes to portray
            himself, that he has truly thought about what he’s done –
            so be it. His words are jokes in my ear, and I’m 99.9%
            sure he isn’t giving a single thought about me anyways.

       Upon receipt of this document the SJA prepared a supplemental addendum to
the SJAR dated 21 March 2014. Paragraph 5 of the supplemental addendum stated,
“The victim elected not to submit additional matters for your consideration.
However the OSJA received her receipt for the victim’s copy of the Record of Trial
on 25 February 2014. On this receipt the victim made remarks that arguably could
be considered victim matters.” The SJA presented the receipt with Miss SV’s
remarks to the convening authority as an enclosure to the supplemental addendum
and recommended that the convening authority “adhere to the original action” signed
on 24 February 2014. The convening authority then approved the recommendation
of the SJA. Significantly, the SJA did not serve a copy of what could “arguably be
considered victim matters” 2 on the appellant or the defense counsel.

     Rule For Courts-Martial 1106(f)(7) (“New matter in addendum to
recommendation”), provides:

            The staff judge advocate or legal officer may supplement
            the recommendation after the accused and counsel have
            been served with the recommendation and given an
            opportunity to comment. When new matter is introduced
            after the accused and counsel for the accused have
            examined the recommendation, however, the accused and
            counsel for the accused must be served with the new



2
 The enclosure to the supplemental addendum lists Miss SV’s statement as “[v]ictim
matters.”


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VALENCIA—ARMY 20130558

             matter and given 10 days from service of the addendum in
             which to submit comments. . . .

       The discussion following R.C.M 1107(f)(7) states that “‘New matter’ includes
discussion of the effect of new decisions on issues in the case, matters from outside
the record of trial, and issues not previously discussed.”

       We have no doubt that the remarks of Miss SV constituted a new matter
within the meaning of R.C.M. 1107(f)(7). The fact that the SJA presented the
remarks to the convening authority after initial action was taken by the convening
authority because they could “arguably be considered victim matters” is indicative
of the importance placed upon this information. The failure of the SJA to serve this
new matter upon the appellant and his counsel was error. The practice of presenting
matters before convening authorities which have not been served upon an accused
and his or her counsel is legally infirm and fundamentally unfair.

      However, our inquiry does not end with the finding of error under these facts.
Our superior court instructs that in these cases:

             [W]e will require appellant to demonstrate prejudice by
             stating what, if anything, would have been submitted to
             deny, counter, or explain the new matter. See Art.59(a),
             UCMJ, 10 USC § 859(a) (error must materially prejudice
             substantial rights of accused). We believe that the
             threshold should be low, and if an appellant makes some
             colorable showing of possible prejudice, we will give that
             appellant the benefit of the doubt and “we will not
             speculate on what the convening authority might have
             done” if defense counsel had been given an opportunity to
             comment.

United States v. Chatman, 46 M.J. 321, 323-324 (C.A.A.F. 1997) (quoting United
States v. Jones, 44 M.J. 242, 244 (C.A.A.F. 1996)).

       In this case appellant has not demonstrated prejudice. Beyond identifying the
error of failing to serve the new matter occurred, he has provided nothing to deny,
counter, or explain the new matter. Because the convening authority “adhere[d] to
the original action,” approving the same sentence he initially approved without the
victim’s statement, we are unable to envision how appellant could have
demonstrated prejudice under the unique circumstances of this case. Absent a
demonstration of potential prejudice by appellant, we find the error harmless.




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VALENCIA—ARMY 20130558

                                  CONCLUSION

      Upon consideration of the entire record, the findings of guilty and the
sentence as approved by the convening authority are AFFIRMED.

      Judge CAMPANELLA and Judge CELTNIEKS concur.

                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:




                                      MALCOLM
                                       MALCOLMH.    H.SQUIRES,
                                                       SQUIRES,JR.
                                                                JR.
                                      Clerk
                                       ClerkofofCourt
                                                 Court




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