UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             COOK, CAMPANELLA, and HAIGHT
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                           v.
                      Private First Class CASEY A. GARRISON
                            United States Army, Appellant

                                      ARMY 20110545

                         Headquarters, 2d Infantry Division
                          Thomas M. Kulish, Military Judge
                  Colonel Jeffery D. Pederson, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain
Ian M. Guy, JA (on brief).

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


                                     22 November 2013
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                                  MEMORANDUM OPINION
                                ------------------------------------

  This opinion is issued as an unpublished opi nion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A military judge sitting as a general court -martial convicted appellant,
contrary to his pleas, of one specification of aggravated sexual assault and one
specification of indecent acts, in violation of Article 120, Uniform Code of Military
Justice, 10 U.S.C. § 920 (2006 & Supp. III) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge and confinement for two years. The
convening authority approved only so much of the sentence as provided for a bad -
conduct discharge and confinement for twenty-two months. The convening authority
waived automatic forfeitures for a period of six months.

       This case is before us for review pursuant to Article 66, UCMJ. A ppellant
raises a single assignment of error to this court, which merits discussion, but no
relief. Additionally, those matters appellant personally raises pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), are without merit.
GARRISON — ARMY 20110545

                                   BACKGROUND

       In his assignment of error to this court, appellant alleges he received
ineffective assistance of counsel in the post -trial phase of his court-martial.
Specifically, appellant asserts that three weeks after his conviction, while he was
being held in a confinement facility in Korea awaiting transfer back to the United
States, he provided one of his two trial defense counsel, Captain (CPT) CB, with a
personal letter addressed to the convening authority. Appellant states the letter was
intended for inclusion in his request for clemency.

       Appellant was then transferred back to Joint Base Lewis -McChord,
Washington to serve the remainder of his sentence. Appellant asserts that his
personal letter was never submitted in his clemency matters, resulting in a v iolation
of his Sixth Amendment right to effective counsel in that his defense counsel failed
to submit all of appellant’s matters to the convening authority pursuant to Rule for
Courts-Martial 1105(b).

      In support of this allegation of error, appellant pr ovided a sworn affidavit
wherein he stated:

             [W]hile still confined in Korea . . . . I gave [CPT CB] my
             personal clemency letter for my post trial matters.

             . . . I was transferred back to the United States . . . . I
             contacted [CPT FO], my other defense counsel. I asked
             [CPT FO] if he was going to submit my letter for
             clemency. He said he did not have a letter from me. [He]
             said if I wanted to write one then I had to get it to him in
             the next day or two because there was a deadline. I asked
             [CPT FO] why he did not notify me earlier and he brushed
             off my question by saying he was busy. I also told [CPT
             FO] that there was no way that I could reproduce my letter
             in such a short period of time, or else [sic] it would not be
             a good reflection of me. [Captain FO] wanted to know if
             he could submit what he had and I felt like I had no other
             option but to agree. So I agreed.

       Appellant stated the letter he would have provided the convening authority
background information on him, including the impa ct the case has had on him and
his family.

      Specifically, the affidavit states:




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                    I explained . . . that the Army had been my life and
             I wanted nothing more than to be returned to duty. I
             requested to even be placed in a position to help counsel
             other Soldiers so that they do not engage in risky sexual
             actions.

                    I also explained that I had never been in trouble in
             my life and that I was not a malicious person. I said I
             made bad decisions that night, but that I was not a bad
             person. There was no motive to commit any misconduct.
             I explained that I am married and have three kids and the
             court-martial has had a great impact on them. I expressed
             concern about being able to provide for them and their
             well-being since I was the sole provider.

      Appellant states he also requested the convening authority disapprove the
findings of guilty and the bad-conduct discharge.

       In response to this allegation of error and pursuant to an order by this court,
appellant’s two trial defense counsel both submitted affidavits. Captain CB stated
that the appellant did not give him a letter during his visit with the appellant on 11
July 2011 at the confinement facility at Camp Humphries. Captain FO stated that he
requested but did not receive a personal letter from the appellant. Captain FO states
that he spoke to appellant on 20 December 2011 and again 3 -4 January 2012 about
writing a clemency letter. On 16 February 2012, after receiving a 20 -day extension
to submit clemency matters, CPT FO states he called appellant and told him matters
were due to the convening authority on 22 February 2012. He further advised
appellant of the content of the submission that he had written on his behalf. The
appellant authorized him to submit that material.

       Captain FO submitted the clemency matters on 22 February 2012. In the
clemency matters, CPT FO requested that the convening authority reduce appellant’s
punishment based on the “mitigating” circumstances surrounding the offense,
alleged command-imposed restriction on appellant for the year prior to his court-
martial, and post-trial processing delays. Specifically, he requested disapproval of
the bad-conduct discharge, disapproval of the finding of guilty of Specification 1 of
Charge I, and order for a reduction of confinement to “time served.” The convening
authority granted the appellant clemency in the form of a two -month reduction in
confinement, specifically to moot any issue regarding post -trial processing delays in
appellant’s case.




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GARRISON — ARMY 20110545

                              LAW AND DISCUSSION

                          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)). In the military,
this guarantee extends to assistance with the post -trial phase of a court-martial.
United States v. Lee, 52 M.J. 51, 52 (C.A.A.F. 1999). We review de novo claims
that an appellant did not receive the effective assistance of counsel. United States v.
Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009).

       “In assessing the effectiveness of counsel we apply the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).”
Gooch, 69 M.J. at 361 (citations omitted). To overcome the presumption of
competence, the Strickland standard requires appellant to demonstrate “both (1) that
his counsel’s performance was deficient, and (2) that this d eficiency resulted in
prejudice.” United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing
Strickland, 466 U.S. at 687).

     This Court applies a three-part test to determine whether the presumption of
competence has been overcome:

         1. Are the allegations true, and, if so, is there any reasonable
         explanation for counsel’s actions?

         2. If the allegations are true, did counsel’s performance fall
         measurably below expected standards?

         3. Is there a reasonable probability that, absent the errors, th ere
         would have been a different outcome?

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991). In the context of a post -trial
claim for ineffectiveness, our superior court has modified the third step, requiring
only that there be some “colorable showing of possible prejudice.” Lee, 52 M.J. at
53 (quoting United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).

       When assessing Strickland's first prong, courts “must indulge a strong
presumption that counsel's conduct falls within the wide range of rea sonable
professional assistance.” Strickland, 466 U.S. at 689 (citation omitted). When
challenging the performance of trial defense counsel, the appellant “bears the burden
of establishing the truth of the factual allegatio ns that would provide the basis for
finding deficient performance.” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F.



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2007) (citation omitted). When there is a factual dispute, we determine whether
further fact finding is required under United States v. Ginn, 47 M.J. 236 (C.A.A.F.
1997). If, however, the facts alleged by the defense would not result in relief under
the high standard set by Strickland, we may address the claim without the necessity
of resolving the factual dispute. Ginn, 47 M.J. at 248.

        After consideration of the record of trial, the pleadings, and the post -trial
affidavits, we conclude a fact-finding hearing is not required in this case. Even if
appellant’s assertion were true and his defense team deficient in that they received a
letter from appellant and failed to submit it to the convening authority, appellant has
failed to establish that the deficiency resulted in prejudice. We find that there is no
reasonable probability of a more favorable result given the purported contents of the
appellant’s letter, the nature of the crimes, and what was submitted to the convening
authority in accordance with Rule for Courts-Martial 1105. *

       Although appellant’s letter would have provided an other personal plea to the
convening authority for clemency, the information appellant described as contained
in his letter was already presented to the convening authority at least twice.
Specifically, the matters were not only included within the record of trial in the
appellant’s unsworn statement, but also within the appellant’s previous request for a
deferral and waiver of forfeitures, a request the convening authority approved. At
action, the convening authority further waived the automatic forfeitu res for an
additional six months for the benefit of appellant’s wife and children. This
evidences the convening authority’s recognition of appellant’s family situation.
Under the facts of this case, we find the appellant has failed to make a colorable
showing of possible prejudice.

                                   CONCLUSION

      On consideration of the entire record, the submissions of the parties, and
those matters personally raised by appellant pursuant to Grostefon, 12 M.J. at 431,
we hold the findings of guilty and the sentence as appr oved by the convening
authority correct in law and fact.

      Accordingly, the findings of guilty and the sentence are AFFIRMED.




*
 The Staff Judge Advocate recommended that the convening authority approve a two
month reduction in confinement to moot any issue concerning post -trial processing
delay.


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GARRISON — ARMY 20110545

    Senior Judge COOK and Judge HAIGHT concur.


                                FOR THE COURT:




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




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