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

                             UNITED STATES, Appellee
                                          v.
                           Private E2 KEVIN J. SHAKELY
                            United States Army, Appellant

                                     ARMY 20140108

                                Headquarters, I Corps
                            David Conn, Military Judge
                   Colonel William R. Martin, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie III, JA; Captain
Benjamin W. Hogan, JA; Captain Carling M. Dunham, JA (on brief).


                                       20 March 2015

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of desertion, two specifications of
making a false offical statement, and one specification of impeding an investigation
in violation of Articles 85, 107 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 885, 907, 934 (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a dishonorable discharge, confinement for eighteen months, reduction to
the grade of E-1, and forfeiture of all pay and allowances. Pursuant to a pretrial
agreement, the convening authority approved only so much of the sentence as
provided for a dishonorable discharge, confinement for twelve months, reduction to
the grade of E-1, and forfeiture of all pay and allowances. The convenin g authority
also approved the 117 days of pretrial confinement credit against the sentence to
confinement.
SHAKELY—ARMY 20140108

      This case is before us for review under Article 66, UCMJ. Appellant raises
one assignment of error which requires discussion but no relief.

                                  BACKGROUND

       Appellant joined the Army on 5 January 2004. After completing basic
training, appellant decided he was “not a good fit” for the Army. As such, on 30
May 2004, he did not report to his assigned unit at For t Lewis, Washington. He was
dropped from the active duty rolls on 9 July 2004.

       On 14 April 2006, appellant was arrested on a deserter warrant after a traffic
stop in Des Moines, Iowa. He was released from confinement a few days later with
a pass to return to his unit. Appellant did not return to his unit. A second deserter
warrant was issued.

      On 27 August 2006, appellant was arrested as a deserter a second time in Des
Moines, Iowa. This time, the police turned appellant over to a military Absent
Without Leave (AWOL) Apprehension Team who escorted appellant to Fort Lewis,
Washington, aboard a commercial flight. Once at the Seattle airport, appellant fled
from his escorts and again avoided returning to his unit.

       Seven years later, in August 2013, an AWOL Apprehension Team investigator
telephonically contacted appellant and asked him to return to Fort Lewis. Wanting
the investigator to think he was misinformed about appellant’s military duty status,
appellant told the investigator he was “out of the Army and discharged.”

       On 23 August 2013, in a further effort to persuade an AWOL Apprehension
Team into believing had been properly discharged or that he was someone else of
greater rank, appellant left a message on an AWOL investigator’s answering
machine stating that he was “Staff Sergeant Kevin Shakely.”

       On 23 August 2013, a televised interview with appellant was broadcast on the
local news. In an effort to dissuade the military from investigating his case and
returning him to military control, appellant told the reporter he deployed to Iraq and
Afghanistan and had been properly discharged. Appellant asserted a ‘paperwork
mix-up’ was the cause of his three arrests for desertion, and declared “this is not
how you treat somebody that went through what I had to go through and had to make
the sacrifices I had to make.” This taped interview was also placed on the Internet.

       On 5 November 2013, appellant was arrested in Sacramento, California , on a
deserter warrant and returned to Fort Lewis, Washington, where he was court-
martialed.




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SHAKELY—ARMY 20140108

       On appeal, in a statement made under penalty of perjury, appellant asserts he
received ineffective assistance when his defense counsel pressured him into pleading
guilty by telling appellant he would lose the pretrial agreement if he did not plead
guilty to specification 1 of Charge III. Appellant asserts he did not make a false
official statement to the investigator when he spoke to the investigator about being
discharged from the Army because he believed he had been discharged. Appellant’s
defense counsel filed affidavits with this court denying and contradicting appellant’s
claims.

                              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)). 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); United States
v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997)).

        As a threshold matter, because appellant and counsel filed conflicting post -
trial statements, we look to whether a post-trial evidentiary hearing is required .
Ginn, 47 M.J. at 248. 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 issues.” Id. Additionally,
after applying the fifth Ginn factor, we are not convinced that appellant has
rationally explained the contradiction between his statements at trial and his
statements in his statement made under penalty of perjury. Id.

       First, the material factual conflict in this case is less between competing
affidavits and more between appellant’s affidavit and his statements made at trial.
At every stage of the trial and during the plea colloquy, appellant noted his
satisfaction with his defense counsel, his legal right to plead not guilty, and
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, he did not




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SHAKELY—ARMY 20140108

raise any allegedly coerced plea or otherwise assert his alleged compl ete defense to
his first false official statement.

       Appellant avers on appeal that he pleaded guilty to the offense only because
he wanted the ordeal to be over with quickly and because his defense counsel
pressured him to plead guilty despite being awar e of appellant’s alleged defense.
However, the plea inquiry specifically covered appellant’s reasons for pleading
guilty and whether anybody forced him to plead guilty. Appellant stated he was not
a good fit for the Army and was scared to be a service member. Appellant said he
lied about being discharged to avoid being returned to the Army and did not want to
face the consequences for his actions. Ginn discusses United States v. Giardino, 797
F.2d 30 (1st Cir. 1986), where an accused alleged his attorney lied to make him
plead guilty. The First Circuit ordered an evidentiary hearing where appellant
alleged he learned of his lawyer’s alleged dishonesty only after the accused entered
his guilty plea. 797 F.2d at 32. Here, the alleged coercion occurred be fore appellant
entered his pleas. Appellant not only stayed silent about it at trial but also
articulated facts contrary to his assertion of coercion. In our view, appellant’s trial
statements “compellingly demonstrate” the improbability of the facts all eged in his
statement made under penalty of perjury. Ginn, 47 M.J. at 248.

       We take note of other acts of deception by appellant which “compellingly
demonstrate” the improbability of the facts alleged in appellant’s affidavit. First,
appellant falsely claimed to hold the rank of staff sergeant the day after he told an
investigator he had been discharged from the Army. This is an uncontro verted lie.
In a televised news interview, appellant falsely claimed to have been deployed to
Iraq and Afghanistan to garner public sympathy or support for his pretense – that he
was an honorably discharged combat veteran. Appellant’s assertions aired on local
news regarding his combat deployments were also completely fabricated. Lastly, by
the time appellant made the false official statement at issue in 2013 regarding his
purported discharge, he had already been arrested twice previously for desertion a nd
once flown back to Seattle with escorts, where he fled the airport to avoid facing
responsibility. In light of this conduct, appellant has not rationally explained why
he made materially different statements at trial and on appeal. See Ginn, 47 M.J. at
248.

       Appellant’s affidavit alleges he had a complete defense to one specification of
making a false official statement. However, the inquiry here is not strictly whether
appellant has a defense; “[t]he question before us . . . is the competence of hi s
defense counsel.” Ginn, 47 M.J. at 248. Given our application of the fourth Ginn
factor above, we are convinced appellant has not carried his burden on the first
prong of Strickland.




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SHAKELY—ARMY 20140108

                                  CONCLUSION

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

      Senior Judge TOZZI and Judge CELTNIEKS concur.


                                       FOR THE COURT:




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




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