UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         KERN, ALDYKIEWICZ, and MARTIN
                             Appellate Military Judges

                   UNITED STATES OF AMERICA, Appellee
                                      v.
                      Private E1 OSCAR RAMIREZ, JR.
                        United States Army, Appellant

                                  ARMY 20100888

                             Headquarters, Fort Bliss
                        David H. Robertson, Military Judge
                   Colonel Francis P. King, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA (argued); Colonel Patricia A. Ham, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA (on brief).

For Appellee: Captain Edward J. Whitford, JA (argued); Lieutenant Colonel Amber
J. Roach, JA; Major Catherine Brantley, JA; Captain Michael J. Frank, JA (on brief).


                                  19 February 2013
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       On 1 and 2 November 2010, a panel of officer and enlisted members sitting as
a general court-martial convicted appellant, contrary to his plea, of aggravated
sexual assault, in violation of Article 120, Uniform Code of Military Justice, 10
U.S.C. § 920 (2006 & Supp. II 2008) [hereinafter UCMJ]. The panel sentenced
appellant to a dishonorable discharge, confinement for fifteen years, and forfeiture
of all pay and allowances. The convening authority approved the sentence as
adjudged.

       We now review appellant’s case under Article 66, UCMJ. Appellant raises six
assignments of error, one of which merits both discussion and relief. Appellant
alleges that he was denied his Sixth Amendment right to effective assistance of
counsel at his presentencing hearing where defense counsel, inter alia, failed to
conduct a proper investigation and present vital information to the enlisted panel.
We agree. Under the two–prong test to establish ineffective assistance of counsel,
we find that the performance of appellant’s defense counsel was deficient and that
RAMIREZ—ARMY 20100888


appellant suffered prejudice as a result of the deficient performance. United States
v. Weathersby, 48 M.J. 668, 670 (Army Ct. Crim. App. 1998) (citing Strickland v.
Washington, 466 U.S. 668 (1984); United States v. Scott, 24 M.J. 186 (C.M.A.
1987)).

                               Deficient Performance

       In a sworn affidavit, appellant states that he gave his defense counsel, Captain
(CPT) T.S., a list of people who appellant wanted to testify at his presentencing
hearing in the event he was convicted. * This list included officers and
noncommissioned officers (NCOs) who were in appellant’s chain of command, and
all were stationed locally at Fort Bliss, Texas. Two officers and one NCO, who
appellant included on this list, have now submitted affidavits in support of
appellant’s appeal, and they all state that they were never contacted by appellant’s
defense counsel. Furthermore, all three attest that had they been contacted, they
would have testified positively about appellant’s duty performance and rehabilitative
potential.

       In an affidavit responding to an order from this court, CPT T.S. acknowledged
that appellant requested that several military members be contacted as potential
presentencing witnesses, including some of the same individuals alleged by
appellant. Captain T.S. further stated that he asked his paralegal NCO to contact
these individuals, but he does not recall if his NCO was ever successful in
contacting them, nor does he recall if he made a tactical decision not to call those
individuals as witnesses.

        It is readily apparent from our review of the affidavits from appellant,
appellant’s defense counsel, and potential presentencing witnesses, that the trial
defense counsel never contacted the potential witnesses who provided affidavits, nor
is it likely that he contacted any other service members as potential sentencing
witnesses. Therefore, on the record before us, we find that defense counsel failed to
appropriately investigate this case for extenuation and mitigation evidence. We
further find, at the very least, the potential witnesses who provided affidavits would
have provided good duty performance evidence and positive testimony pertaining to
appellant’s rehabilitative potential. As such, we conclude that CPT T.S.’s
performance was deficient with respect to the presentencing portion of the trial. See
United States v. Boone, 49 M.J. 187, 196 & n.10 (C.A.A.F. 1998).

                                      Prejudice

      At the presentencing stage of the trial, the only defense witness, aside from
appellant who provided an unsworn statement, was appellant’s wife. Neither

*
 Appellant states he gave this list to his trial defense counsel approximately two
weeks after his Article 32 hearing. The Article 32 hearing took place on 20 July
2010, approximately fifteen weeks prior to trial.
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RAMIREZ—ARMY 20100888


appellant nor his wife spoke about appellant’s approximately six years of military
service or his rehabilitative potential, which, by the accounts of the potential
witnesses who furnished affidavits, was very good. Although the defense admitted
appellant’s commendatory military records, we do not conclude that these were an
adequate substitute for live character witnesses as they do not speak directly to
appellant’s rehabilitative potential. Moreover, appellant’s defense counsel failed to
even mention appellant’s military records during his very brief sentencing argument.

       Under the totality of circumstances in this case, particularly after reviewing
the affidavits of the potential witnesses from appellant’s chain of command, we are
convinced that appellant suffered prejudice from defense counsel’s failure to
properly investigate and present potential evidence in extenuation and mitigation.
We also find it likely that the absent testimony would have led to a lower sentence.
Because we do not have an adequate sentencing picture from the record, and the
omission of potential evidence prejudiced appellant during the sentencing phase of
his court-martial, we are unable to reassess the sentence in this case. See Boone, 49
M.J. at 198–99.

                                     Conclusion

       After consideration of the entire record of trial, appellant’s assignments of
error, and the matters personally raised by appellant pursuant to United States v.
Grostefon,12 M.J. 431 (C.M.A. 1982), and the matters discussed during oral
argument, we affirm the findings of guilty, but set aside the sentence. A rehearing
on sentence may be ordered by the same or different convening authority, and
appellant will be provided representation from a different defense counsel.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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