UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                              CELTNIEKS, ALMANZA 1, and WOLFE
                                   Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                               Specialist MATTIE L. BROWN
                               United States Army, Appellant

                                        ARMY 20140346

                          Headquarters, III Corps and Fort Hood
                      James L. Varley, Military Judge (arraignment)
                         Patricia H. Lewis, Military Judge (trial)
                 Colonel Stuart W. Risch, Staff Judge Advocate (pre-trial)
                  Colonel Ian G. Corey, Staff Judge Advocate (post-trial)


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Payum Doroodian, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Daniel D. Derner, JA; Captain Steve T. Nam, JA (on brief).


                                           28 June 2016

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

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

ALMANZA, Judge:

       A military judge sitting as a special court-martial convicted appellant,
contrary to her pleas, of signing a false official record (two specifications), making a
false official statement, and larceny of military property of a value of more than
$500.00, in violation of Articles 107 and 121, Uniform Code of Military Justice, 10
U.S.C. §§ 907 and 921 (2012) [hereinafter UCMJ]. Upon correction, the military
judge sentenced appellant to be discharged from the Army with a bad-conduct
discharge, to be confined for nine months, to forfeit $1,021.00 per month for nine
months, and to be reduced to the grade of E-1. The convening authority approved
the adjudged sentence.

1
    Judge ALMANZA took final action in this case while on active duty.
BROWN—ARMY 20140346

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
assigns three errors. While all three merit brief discussion, only one merits relief.
Additionally, appellant raises three issues pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). One of these issues merits discussion but no relief, while
the other two merit neither discussion nor relief.

                                  BACKGROUND

       Appellant had been married to Mr. CB. Accordingly, while married she was
entitled to Basic Allowance for Housing (BAH) at the with-dependents rate. Her
divorce from Mr. CB was finalized on 29 July 2010, and she appeared in person at
that court proceeding. Appellant, however, continued drawing BAH for
approximately two years after her divorce from Mr. CB (this conduct resulted in her
conviction of the Specification of Charge II for larceny of military property over
$500). After her divorce was finalized, appellant digitally signed a Service-
members’ Group Life Insurance Election and Certificate form stating that Mr. CB
was her husband (Specification 1 of Charge I). Appellant also completed a unit
Personal Data Sheet that contained administrative information, in which she entered
her Social Security Number, date of birth, and address, and stated she was married to
Mr. CB (Specification 3 of Charge I). Additionally, appellant told an officer
appointed under Army Reg. 15-6 to investigate whether she was entitled to receive
BAH that she was currently married to Mr. CB (Specification 5 of Charge I).

                             LAW AND DISCUSSION

                    A. Admission of Allegedly Unwarned Statement

       Defense counsel did not object to the investigating officer’s testimony that on
27 April 2012, appellant told him that she was married to Mr. CB. As this objection
was not preserved, it is forfeited in the absence of plain error. United States v.
Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014); see also Military Rule of Evidence
[hereinafter Mil. R. Evid.] 304(f)(1) (motion to suppress must be made prior to entry
of pleas and may not be made at a later time absent good cause).

       We have reviewed the allied papers that indicate on 27 April 2012, the
investigating officer advised appellant of her Article 31(b), UCMJ, rights and that
she was suspected of fraud. (Allied Papers, DA Form 3881, dated 27 April 2012 and
signed by appellant and the investigating officer). The allied papers also indicate
appellant made the verbal statement of which she stands convicted to the
investigating officer after she was advised of her rights but before she invoked her
rights upon being asked to reduce her statement to writing. (Allied Papers, DA
Form 2823, dated 27 April 2012 (reflecting appellant’s invocation of rights); Allied
Papers, DA Form 2823, dated 28 April 2012 (investigating officer’s statement; in
relevant part, it reads, “[a]fter we talked [referencing the conversation containing

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BROWN—ARMY 20140346

the false statement], I asked … [appellant] to write a written sworn statement as to
the discussion we just had, at which time she refused and stated she wanted to talk to
a lawyer.”)).

      Under these facts, there is no error, much less plain error. Accordingly,
appellant is not entitled to relief.

                              B. Dilatory Post-Trial Processing

       Our superior court established timeliness standards for various stages of the
post-trial and appellate process. United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006). In relevant part, the convening authority should take initial action
no later than 120 days after completion of the trial. Id. Failure to satisfy this
standard creates a “presumption of unreasonable delay,” prompting this court to
apply and balance the four factors set out in Barker v. Wingo, 407 U.S. 514, 530
(1972), to determine whether appellant’s due process rights were violated. Moreno,
63 M.J. at 142.

       The first factor, length of delay, plainly weighs in appellant’s favor. In this
case, 249 days passed between sentencing and action by the convening authority.
Here, the post-trial processing standards for the completion of the convening
authority’s action were exceeded. We therefore proceed to the remaining three
factors, beginning with “[r]easons for the delay.” Id. at 136. Here, the government
has offered none and we decline the government’s invitation that we speculate. See
Gov’t Br. at 11 (“some undetermined period of administrative delay following
authentication . . . was attributable to the redeployment of III Corps from
Afghanistan. . . .”). The third factor, assertion of the right to a timely review and
appeal, also weighs in appellant’s favor, as defense counsel submitted two requests
for speedy post-trial processing on 8 April 2014 and on 11 November 2014, and
raised the issue of delay in his submission under Rule for Courts-Martial
[hereinafter R.C.M.] 1105 and 1106 on 5 December 2014.

       However, despite the delay, appellant’s assertion of this issue before the
convening authority and this court, and the absence of any explanation by the
government for its dilatory processing, appellant is still not entitled to relief
pursuant to Moreno. Appellant has failed to demonstrate that she suffered any
prejudice 2 as a result of the delay, and we find this absence outweighs the first three
factors to a degree that we can confidently conclude her due process rights were not
violated. Id. at 138. Additionally, while we recognize the post-trial delay here is
excessive, it is not “so egregious that tolerating it would adversely affect the
public’s perception of the fairness and integrity of the military justice system.”
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).


2
    In her brief, appellant does not assert prejudice. See Appellant’s Br. at 8-9.
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BROWN—ARMY 20140346


       In the absence of actual prejudice from unreasonable post-trial processing,
this court is authorized to grant relief for excessive delay in our assessment of the
appropriateness of appellant’s sentence pursuant to Article 66(c), UCMJ. See United
States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United States v. Collazo, 53 M.J.
721, 727 (Army Ct. Crim. App. 2000). On this record, which includes the convening
authority’s decision to defer adjudged and automatic forfeitures until action, we
decline to exercise this authority.

                          C. Factual and Legal Insufficiency

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324, 324 (C.M.A. 1987) (internal citations omitted); see also United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of legal
sufficiency, we are “bound to draw every reasonable inference from the evidence of
record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001). The test for factual sufficiency is “whether, after weighing the
evidence in the record of trial and making allowances for not having personally
observed the witnesses, [we] are [ourselves] convinced of the accused’s guilt beyond
a reasonable doubt.” Turner, 25 M.J. at 325.

       In Specification 3 of Charge I, the government alleged appellant “sign[ed] an
official record, to wit: a Personal Data Sheet, stating she was married to Mr. [CB],
which record was totally false.” The record contains several handwritten entries in
printed (not cursive) writing, starting with “Benjamin Mattie” in the “Name” block.
While there is a handwritten circle around the pre-printed word “Married” in the line
for “Marital Status” and Mr. CB’s name is handwritten in the “Spouse’s Name”
block, there are many other handwritten entries on the form as to which no evidence
was presented at trial concerning their truth or falsity. 3 Accordingly, we find the
government failed to meet its burden to prove beyond a reasonable doubt that the
“record was totally false” as alleged. We thus find that the evidence was factually
insufficient to support the conviction of Specification 3 of Charge I, and will set
aside that conviction in our decretal paragraph.




3
  Given our resolution of this assignment of error, we need not determine whether
“Benjamin Mattie” printed in handwriting constitutes a signed record, nor need we
address the difference between “signing” and “making” a written false official
statement under Article 107, UCMJ.
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BROWN—ARMY 20140346

                           D. Ineffective Assistance of Counsel

       “Claims of ineffective assistance of counsel are reviewed de novo.” United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011). In evaluating allegations of
ineffective assistance of counsel, we apply the standard set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). This standard requires appellant to
demonstrate: (1) that counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice. Id. Appellant must show “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. The relevant issue is whether counsel’s conduct
failed to meet an “objective standard of reasonableness” such that it fell outside the
“wide range of professionally competent assistance.” Id. at 688, 690. “On appellate
review, there is a ‘strong presumption’ that counsel was competent.” United States
v. Grigoruk, 56 M.J. 304, 306-307 (C.A.A.F. 2002) (citing Strickland, 466 U.S. at
689). Moreover, appellant has the burden to establish prejudice. See United States
v. Quick, 59 M.J. 383, 384 (C.A.A.F. 2004).

       Appellant personally asserts her trial defense counsel was ineffective because
on findings he neither presented any evidence, made an opening statement, objected
to the government’s evidence, nor adequately cross-examined the government’s
witnesses. Appellant did not submit an affidavit in support of her assertions of
ineffective assistance of counsel. 4

       Having reviewed the record, we find that appellant’s trial defense counsel did
not present any evidence on findings and that he did not make an opening statement.
We also find that he did not cross-examine two government witnesses on findings. 5
Moreover, we find that he did not object to the government’s documentary evidence
on findings, 6 nor did he object to the testimony of the investigating officer that is the
subject of appellant’s first assignment of error.

4
  As explained above, the other two matters appellant personally asserts (speedy
trial; legal and factual insufficiency of Charge II) merit neither discussion nor relief.
5
  Although appellant asserts that her trial defense counsel “didn’t cross-examine
three significant witnesses,” Appellant’s Br. Appendix A, at 2-3, our review of the
record indicates that he did not cross-examine two government witnesses on
findings, not three. Specifically, trial defense counsel did not cross-examine one
witness after the government’s direct examination, but did cross-examine that
witness following the government’s re-direct examination after the military judge
questioned that witness.
6
 Appellant’s trial defense counsel did object to the government’s evidence on
sentencing, such as a record of punishment under Article 15, UCMJ, and the result

                                                                         (continued . . . )
                                            5
BROWN—ARMY 20140346

       We note that, in and of itself, failing to take certain actions may not constitute
deficient performance if there was no basis for those actions. For example, failing
to object at trial to the admission of a statement as being obtained in violation of an
appellant’s Article 31(b) rights would not constitute deficient performance if in fact
that appellant had been properly advised of those rights and had waived them before
making that statement. Accordingly, the mere fact that trial defense counsel did not
take certain actions—without facts indicating that counsel acting within the “wide
range of professionally competent assistance” would have taken those actions—is
insufficient for a finding of deficient performance. So, for example, while appellant
complains that her attorney did not object to the admission of evidence, she does not
advance what objections should have been made. Our own independent review of
the record likewise finds none. Similarly, appellant does not argue that cross-
examination of witnesses would have elicited any fact of consequence.

       In this case, however, it is unnecessary to decide whether trial defense
counsel’s performance was deficient because even if it were, appellant suffered no
resulting prejudice. Specifically, the government presented overwhelming evidence
to establish that appellant was guilty of the offenses of which she was convicted.
Accordingly, in this case appellant has not met her burden to establish prejudice, the
second prong of the Strickland test is thus not established, and appellant’s
personally-asserted claim of ineffective assistance of counsel must fail.

                                    CONCLUSION

       Having completed our review and in consideration of the entire record, the
finding of guilty of Specification 3 of Charge I is set aside and DISMISSED. The
remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In the context of this case,
Specification 3 of Charge I was relatively minor. The dismissal of this specification
does not materially alter the amount of admissible aggravation evidence. We are
confident that based on the entire record and appellant’s course of conduct, the
military judge would have imposed a sentence of at least that which was adjudged,
and accordingly we AFFIRM the sentence.


(. . . continued)
of trial and the court-martial promulgating order from appellant’s previous court-
martial. We note that appellant does not make a specific or general assertion that
trial defense counsel’s performance was deficient in sentencing proceedings or in
post-trial matters.
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BROWN—ARMY 20140346

      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.

      Judge CELTNIEKS and Judge WOLFE concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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