UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            MULLIGAN, FEBBO, and WOLFE
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                   First Lieutenant HARRISON W. GARDNER
                          United States Army, Appellant

                                   ARMY 20160473

                       Headquarters, 25th Infantry Division
                          Mark A. Bridges, Military Judge
                  Colonel William D. Smoot, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Katherine
DePaul, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Michael E. Korte, JA (on brief).


                                   6 December 2017
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                               SUMMARY DISPOSITION
                              ----------------------------------

WOLFE, Judge:

       The commander of the 536 th Support Maintenance Company at Schofield
Barracks, Hawaii, had a “known substance abuse” problem in his unit. What was
unknown to him was that his executive officer was part of the problem. The
executive officer, First Lieutenant (1LT) Harrison W. Gardner, appeals his guilty
plea for using, possessing, and distributing drugs. Specifically, 1LT Gardner assigns
as error that his civilian defense counsel was ineffective when he conceded during
his sentencing argument that 1LT Gardner should be dismissed for his crimes.

                                   BACKGROUND

      The facts of the case were agreed to by both parties at trial and are not
disputed on appeal.

      In November, 2015, 1LT Gardner was assigned to the 25 th Infantry Division at
Schofield Barracks, HI. He had two friends living in Oregon who grew marijuana;
Tara and Dana Dinsmore. The two friends sent him packages of marijuana through
GARDNER—ARMY 20160473

the U.S. Mail. First Lieutenant Gardner stated to a friend “that he wanted to receive
more packages of marijuana and [wanted] to help his friends . . . move their
marijuana to Hawaii.” When police raided Lieutenant Gardner’s apartment they
seized 1.966 pounds of marijuana, a scale used to weigh marijuana, and $13,540 in
cash. 1

      At his guilty plea, appellant admitted using, possessing, and distributing
marijuana. 2 He also admitted to several aggravating circumstances.

       Appellant admitted that on five separate occasions he used marijuana. On one
of those occasions, 1LT Gardner was at a training site conducting live-fire support
operations. Appellant went to a civilian residence to pick up a noncommissioned
officer. Prior to departing the residence Lieutenant Gardner then smoked marijuana
in the presence of the noncommissioned officer. Appellant also smoked marijuana
with two acquaintances in Pearl City. One asked him “if he was in the military and
the effect consuming marijuana might have on his status.” First Lieutenant Gardner
responded that he was in the military but that “I know well in advance when the
urinalysis is coming.”

        One of the acquaintances spontaneously reported appellant to military law
enforcement. Shortly afterward, the unit conducted a urinalysis. In a series of text
messages with one of his noncommissioned officers, Staff Sergeant Richard Nixon,
1LT Gardner asked and speculated about what the test results would be. First
Lieutenant Gardner alluded to placing a pubic hair in the test sample in attempt to
void the test. He further stated he would have asked the soldier administering the
test to swap out the urine sample had he known the individual better. Appellant’s
test would later come back positive for marijuana.


1
  The Dinsmores shipped marijuana to 1LT Gardner and eventually moved into his
off-post house in Pearl City, Hawaii. While it appears that the Dinsmores were
heavily involved in the scheme to sell marijuana, 1LT Gardner admitted that he
exercised dominion and control over the drugs found in his residence. He further
stipulated that he aided and abetted the Dinsmores in furtherance of a common
criminal purpose of distributing marijuana, and that he willfully helped execute the
criminal enterprise.
2
  Appellant pleaded guilty to five specifications of wrongfully using marijuana, two
specifications of wrongfully distributing marijuana, and one specification of
wrongfully possessing marijuana, in violation of Article 112a, Uniform Code of
Military Justice, 10 U.S.C. § 912a (2012) [UCMJ]. A military judge, sitting as
general court-martial, sentenced appellant to a dismissal and confinement for
thirteen months. In accordance with a pretrial agreement, the convening authority
approved only so much of the sentence extending to a dismissal and ten months
confinement.


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GARDNER—ARMY 20160473


      Notwithstanding the pending test results, the very next day 1LT Gardner
agreed to sell marijuana to an undercover military investigator. While the
undercover investigator waited in the car, appellant went into his residence and
“grabbed approximately six grams of marijuana which was already weighed and
bagged.” First Lieutenant Gardner then completed the sale.

       Five days later, Lieutenant Gardner agreed to sell marijuana a second time.
He stated that he sold marijuana in “small” and “bulk” amounts. When asked, he
further stated that he could sell ecstasy, finding cocaine to sell would be harder, but
that “finding drugs is something I excel at.” Appellant then showed the undercover
investigator several different strains of marijuana he had to offer, and while smoking
marijuana himself, sold 11 grams of marijuana for $100.

                             LAW AND DISCUSSION

       First Lieutenant Gardner asserts that during sentencing argument his civilian
defense counsel improperly argued in favor a sentence that included a dismissal. We
review such an allegation of error as a claim of ineffective assistance of counsel.
United States v. Quick, 59 M.J. 383, 385 (C.A.A.F. 2004). We apply the well-
established two-pronged test announced by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). Appellant has the burden of establishing both
deficient performance and prejudice. Id. at 694.

                              A. Deficient Performance

      Although the government argues differently, our reading of the record is that
appellant’s civilian defense counsel, at the very least, assumed that a dismissal
would be part of the adjudged sentence. Defense Counsel argued that a dismissal
would serve the purpose of deterrence better than confinement, and that a sentence
“of no more than sixty days of confinement is enough, and that with the dismissal is
devastating to Lieutenant Gardner . . . .”

       In an affidavit submitted on appeal, First Lieutenant Gardner swears that he
did not consent to an argument in favor of a dismissal and would not have consented
had he been asked. The government did not request that we order an affidavit from
the civilian defense counsel. Accordingly, we accept as true for purposes of this
appeal that appellant did not consent to any argument in favor of a punitive
discharge.

      The government responds that the defense counsel’s argument was reasonable.
The government argues that “[c]ounsel in this case [] most effectively sought to
lower the potential sentence to confinement by arguing that the inevitable dismissal
best met the sentencing philosophy of deterrence compared to lengthy confinement.”



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GARDNER—ARMY 20160473

While we might agree with the government’s argument in a vacuum, the range of
permissible argument by a defense counsel is constrained by longstanding case law.
An argument for a punitive discharge may only be made with the consent of the
accused and such consent must be made part of the record of trial. See United States
v. Dresen, 40 M.J. 462, 465 (C.M.A. 1994) (citing United States v. Lyons, 36 M.J.
425 (C.M.A. 1993)) (a defense counsel who intends to ask for any punitive discharge
must “make a record that such advocacy is pursuant to the accused’s wishes.”);
United States v. Quick, 59 M.J. 383, 385-86 (C.A.A.F. 2004); See also United States
v. Israel, 75 M.J. 559, 561 (Army Ct. Crim. App. 2015).

       The government cites Wainwright v. Sykes for the proposition that the “trial
process simply does not permit the type of frequent and protracted interruptions
which would be necessary if it were required that clients give knowing and
intelligent approval to each of the myriad tactical decisions as a trial proceeds.” 433
U.S. 72, 93 (1977) (Berger, J. concurring). However, our superior court has not
lessened the longstanding requirement that an argument for a punitive discharge be
only made with the consent of the accused.

                                     B. Prejudice

       To pass the second Strickland prong appellant must prove that “there is a
reasonable probability that, but for counsel's error, there would have been a different
result. Quick, 59 M.J. at 386-87 (citing Strickland, 466 U.S. at 694). Here, as a
dismissal was the only authorized form of punitive separation from the service,
appellant must demonstrate that, but for his counsel’s sentencing argument, there is
a reasonable probability he would not have received a dismissal as part of his
punishment.

       Appellant, a commissioned officer, elected to become a drug dealer.
Appellant twice sold drugs for profit, stated he would consider selling marijuana in
“bulk,” and expressed the ability and willingness to sell harder drugs. First
Lieutenant Gardner further used his position to “know well in advance when [a]
urinalysis [test] is coming.” He used drugs while supporting a live-fire training
exercise and in the presence of at least one enlisted soldier. Appellant discussed
how to evade and frustrate the urinalysis tests with a noncommissioned officer.
First Lieutenant Gardner’s eagerness to use and sell drugs, combined with the
amount of marijuana and cash found in his residence, do not indicate that his
offenses were isolated instances of poor judgment.

       As our superior court found in Quick, we see no reasonable probability that
even if defense counsel had not conceded a dismissal there would have been a
different result. 59 M.J. at 387. As with Quick, “[t]his is underscored by the fact
that this was a trial by military judge alone.” Id. Nor does the record “reveal that
the military judge was perceptibly swayed by defense counsel’s concessions.” Id.



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GARDNER—ARMY 20160473

First Lieutenant Gardner has failed to meet his burden to establish prejudice under
the Strickland test.

                                  CONCLUSION
      The findings of guilty and the sentence are AFFIRMED.
      Senior Judge MULLIGAN and Judge FEBBO concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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