UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                  YOB, KRAUSS, and BURTON
                                   Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                    Private First Class ROBERT W. MEDEIROS
                           United States Army, Appellant

                                        ARMY 20081092

              Headquarters, National Training Center and Fort Irwin
                        Michael J. Hargis, Military Judge
       Lieutenant Colonel F. Dean Raab, Staff Judge Advocate (pretrial and
                                recommendation)
        Major Robert A. Vedra, Acting Staff Judge Advocate (addendum)
 Major Scott A. Dirocco, Acting Staff Judge Advocate (new recommendation and
                                   addendum I)
Lieutenant Colonel Gail A. Curley, Staff Judge Advocate (new recommendation and
                                  addendum II)


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

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA (on brief).


                                         17 January 2013

                     ---------------------------------------------------------------
                     MEMORANDUM OPINION ON FURTHER REVIEW
                     ---------------------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of assault consummated by battery (two specifications),
adultery, and communicating a threat, in violation of Articles 128, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 928, 934 (2006) [hereinafter UCMJ]. At the
same court-martial, the military judge convicted appellant, contrary to his pleas, of
attempted kidnapping, maiming, forcible sodomy, assault consummated by battery
(five specifications), and aggravated assault, in violation of Articles 80, 124, 125,
MEDEIROS—ARMY 20081092

and 128, UCMJ. The convening authority approved the adjudged sentence of a
dishonorable discharge, confinement for thirty-two years, and reduction to the grade
of E-1.

       On 7 June 2011, this court set aside the convening authority’s initial action
and returned the record of trial to The Judge Advocate General for remand to the
same or a different convening authority for a new staff judge advocate’s
recommendation (SJAR) and action. United States v. Medeiros, ARMY 20081092,
2011 WL 2377848 (Army Ct. Crim. App. 7 June 2011) (summ. disp.).

       Following the new SJAR and action, this court affirmed the findings of guilty
and the sentence. United States v. Medeiros, ARMY 20081092, 2012 WL 203419
(Army Ct. Crim. App. 20 Jan. 2012) (summ. disp.). However, our superior court
“conclude[d] that [a]ppellant was denied his Sixth Amendment right to conflict-free
counsel in his post-trial representation.” United States v. Medeiros, 71 M.J. 316
(C.A.A.F. 2012) (summ. disp.). Our superior court then reversed our decision and
set aside the convening authority’s second action. Id. The record of trial was
returned to The Judge Advocate General of the Army for submission to an
appropriate convening authority for a new SJAR and action. Id.

       This third action has been completed and the record is now before us for
further review under Article 66, UCMJ. Appellant now raises a single assignment of
error and alleges, for the first time on appeal, that he received ineffective assistance
of counsel during the pretrial phase of his court-martial. However, we find that the
record as a whole compellingly demonstrates the improbability of the facts contained
in appellant’s affidavit. As such, appellant’s claim lacks merit and we will affirm
the findings and sentence in our decretal paragraph.

                                   BACKGROUND

                               A. Appellant’s Affidavit

        Appellant submitted an affidavit in support of his claim that he received
ineffective assistance of counsel during the pretrial stage of his court-martial. In
this affidavit, appellant admitted that his civilian defense counsel informed him that
“the government would support an offer to plead guilty in exchange for a maximum
of fifteen years confinement.” Appellant was “very interested” in this potential
offer to plead guilty because an Army Criminal Investigative Command (CID) agent
had previously told appellant he “would be facing a minimum of thirty years
confinement for [his] offenses.”

       Nevertheless, appellant claims that his “civilian defense counsel told [him]
that [he] would be ‘stupid’ to plead guilty because there was no doubt we would win
the case.” Appellant further swore that his civilian defense counsel “even said this



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would be a ‘slam dunk’ case and he couldn’t lose.” Appellant also stated his
civilian defense counsel informed him that he “would not be found guilty and that
[he] would not serve any confinement.”

       Ultimately, appellant rejected the offer to plead guilty and claimed that “[t]he
only reason [he] did not submit the offer to plead guilty is because [his] civilian
defense counsel told [him] that [he] would not lose and that [he] would not go to
jail.” Appellant concludes in his affidavit that had his civilian defense counsel
properly advised him about the offer to plead guilty and recommended to accept the
offer, appellant would have done so because his “primary goal going into [his]
court-martial was to avoid a lengthy jail sentence.”

                          B. Appellant’s Guilty Plea Inquiry

       At his court-martial, appellant pleaded guilty without the benefit of a pretrial
agreement to Specifications 1 and 6 of Charge V (assault consummated by battery)
and Specifications 1 (adultery) and 3 (communicating a threat) of Charge VI. The
military judge accepted appellant’s guilty pleas to these offenses after conducting a
providence inquiry. Appellant also initially pleaded guilty to Charge III and its
Specification (maiming) and to Specifications 5 and 8 of Charge V (assaults
consummated by battery).

      During the providence inquiry into the maiming offense, the following
exchange took place among the parties:

             MJ: Okay. What injuries were you intending to inflict?

             [Accused conferring with defense counsel.]

             Acc: I just wanted to hurt her, I just wanted to do what
             Brian said. I just wanted to beat her up a little bit, just
             make it so Brian wouldn’t do anything to us. So, that’s
             all.

             ...

             MJ: Defense, . . . [d]o you believe that a defense of lack
             of mental responsibility exists in this case?

             DC: I wish that it did, Your Honor. It does not!

             MJ: Even though your client is telling me that at the time
             he was hearing voices from a person who he believed to be
             real, who he now believes to be imaginary?



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             DC: There are multiple renditions over time, Your Honor.

             MJ: Well, I’m most concerned with the rendition I get
             here today.

             DC: I understand that, and this is not the anticipated
             rendition, but I can tell you, Your Honor, as an officer of
             the court, this has been explored in many, many ways.

      Later on during the providence inquiry into the maiming offense, the
following exchange took place between the military judge and appellant:

             MJ: Did you have any lawful justification or excuse for
             engaging in those actions of throwing [LC] to the ground
             and kicking her?

             Acc: Well, just—just Brian. I figured that if I didn’t do it
             then Brian would go after our families, and would—would
             kill them.

             MJ: Okay, so there is a possibility that you might have
             had a legal justification or excuse. We are going to talk
             about the defense of duress in just a moment.

      After the military judge explained the defense of duress to appellant, the
following exchange took place among the parties:

             MJ: . . . Now you told me that you thought that Brian
             would come and do something worse to you, is that
             correct?

             Acc: He would—he would—I knew for a fact that he
             would kill my grandma, and he would go after [LC’s]
             family.

             MJ: Did you believe at that point that he was going to do
             that immediately?

             Acc: Yes. He said he had someone—he had someone
             parked outside my grandma’s house, sitting outside in
             front of her house in a car.




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MEDEIROS—ARMY 20081092

             MJ: So you thought that if you didn’t do it, you didn’t do
             it right then—

             Acc: That if I didn’t take care of [LC,] then—then—then
             she would—then people would die.

             MJ: Immediately?

             Acc: Yeah, yes, sir.

             MJ: Who did you think would die immediately?

             Acc: My grandma, uh, [LC’s] family, uh—we—we—I
             didn’t know if [LC’s] family would die, I just knew that
             they would get hurt. Her mom got threatened, and—and
             that’s it.

             MJ: Counsel, I have some serious reservations.

             DC: Only equaled to by mine.

             MJ: I have no doubt.

             DC: I don’t even know what to say to you except I need a
             recess.

             ...

             MJ: Okay. The court is in recess.

      After the recess, appellant withdrew his guilty plea to Charge III and its
Specification. A similar issue arose during the providence inquiry into Specification
8 of Charge V (assault consummated by battery). Appellant admitted to placing
LC’s hand over a lit gas stove top and burning it. However, this was again done at
the behest of “Brian,” as it occurred right before appellant maimed LC:

             MJ: So you got a message from Brian and then you held
             her hand over the stove?

             Acc: Yeah, I—I—I hit her in the face, first with my open
             hand, then I grabbed her by her arm, brought her into the
             kitchen, uh-mmm, turned on the stove, told her ‘this is—
             this is what Brian said he would do to you if you don’t
             listen’—‘if we don’t listen,’ and I held her hand over it,



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MEDEIROS—ARMY 20081092

         and then when I saw that the flame touched it, I pulled her
         hand back. And then I brought her back out into the living
         room area, and I threw her on the floor, and that is when
         I—when the maiming happened.

         MJ: What specifically did Brian tell you to do on the 5th
         of February 2008?

         Acc: Take care of her.

         MJ: Alright.

         Acc: He was afraid that—that she was going to go home,
         because she was—she was talking about going home. He
         was afraid she was going to go home, and—and afraid that
         I had told her about, uh-mmm, all the different things, and
         stuff like that.

         MJ: And you told me that you did that because Brian told
         you that there was someone parked outside of your
         grandmother’s house—

         Acc: Yes, sir.

         MJ: And if you didn’t do what Brian told you to do,
         someone was going to kill your grandmother?

         Acc: Someone was going to kill my grandma and—

         MJ: Right then?

         Acc: And they were going to—going to hurt her family.

         MJ: Right then?

         Acc: Yes.

         ...

         MJ: Counsel, we have the same problem with
         Specification 8 as we do with the maiming charge.

         DC: I couldn’t agree with you more, we will withdraw the
         guilty plea.



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MEDEIROS—ARMY 20081092


       Likewise, the military judge also rejected appellant’s guilty plea to
Specification 5 of Charge V (assault consummated by battery). During the
providence inquiry, appellant stated that he took Ambien on 2 January 2008 and
“tripped out.” After taking Ambien, appellant became violent and shocked LC with
a taser. Appellant did not remember shocking LC, but LC and appellant’s wife
informed him the next day that he used a taser against LC, appellant’s wife, and
himself. After appellant guessed that he was not in control of himself at the time he
shocked LC, the military judge found him improvident to Specification 5 of Charge
V.

                   C. Civilian Defense Counsel’s Findings Argument

       After a trial on the merits of the remaining charges and specifications,
appellant’s civilian defense counsel only focused on certain offenses during his
findings argument: “I will simply say that with respect to the following charges and
specifications, the elements have not been met.” First, civilian defense counsel
argued that appellant did not attempt to kidnap LC because there was a lack of
evidence as to appellant’s specific intent to kidnap.

       Second, civilian defense counsel argued that appellant was not guilty of
Specification 2 of Charge VI (kidnapping) on a separate occasion at Fort Irwin
because LC “had every opportunity to extricate herself from the situation, if she so
chose, she chose not to.” Civilian defense counsel pointed out that LC talked to her
father during the applicable time period and that there was no evidence appellant
advised LC to lie to her father and say that she was in San Diego. Thus, civilian
defense counsel argued “[t]here was no carrying away, there was no inveigling, there
was no moral suasion to move her to a place that she didn’t want to be in.” 1

      Third, civilian defense counsel argued that appellant did not commit
aggravated assault (Specification 4 of Charge V) because “the elements of grievous
bodily harm are simply not met.” Stated differently, “the injuries sustained would
not comport with an aggravated assault because there is no cutting, there are no
broken bones, nothing to suggest aggravation[,] the use of hands and feet, even
though the foot was shod with a sneaker, does not elevate itself to a means likely.”
Thus, civilian defense counsel concluded that Specification 4 of Charge V “is a
simple assault, just like all the other simple assaults.”

      Finally, civilian defense counsel argued that appellant should be acquitted of
the two aggravated sexual assault offenses and the forcible sodomy offense because
LC “established a pattern in practice with [appellant] of saying no but then

1
    The military judge found appellant not guilty of Specification 2 of Charge VI.



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MEDEIROS—ARMY 20081092

yielding.” Thus, the defense of mistake-of-fact applied because LC’s declination did
not actually mean declination given the pattern of practice between LC and
appellant. 2 Appellant’s civilian defense counsel did not address any of the other
remaining charges or specifications during his findings argument.

                     D. Appellant’s First Clemency Submission

        Defense Appellate Exhibit A consists of a handwritten, twelve-page personal
letter appellant drafted and submitted to his trial defense counsel for purposes of his
original submission to the convening authority pursuant to Rule for Courts-Martial
[hereinafter R.C.M.] 1105. Appellant faxed this letter to his trial defense counsel on
8 June 2009.

       At the beginning of appellant’s clemency letter, he states “[t]hrough the
duration of this letter I will show you that at my trial I was making decisions not
based on logic but on emotions; that are and were clouded by my various mental
illnesses.” On page two of appellant’s letter, he states the following:

             The first thing I should go over is one of the biggest
             things. Right before my trial I was offered a deal of 15
             years. I denied that deal on the sole basis that if I got 15
             or 30 years it did not matter I was going to kill myself
             either way. I said this solely because I was unmedicated
             before and at my trial. Part of my condition was known
             but was not being treated properly, if at all. Which in turn
             caused me to make a 32 year decision that is the worst
             decision of my life. . . .



                              LAW AND DISCUSSION
       “Article 66(c) does not authorize a Court of Criminal Appeals to decide
disputed questions of fact pertaining to a post-trial claim, solely or in part on the
basis of conflicting affidavits submitted by the parties.” United States v. Ginn, 47
M.J. 236, 243 (C.A.A.F. 1997). Nonetheless, a soldier is “not . . . always entitled to

2
  The military judge found appellant not guilty of both of the specifications alleging
aggravated sexual assault. The military judge did express concerns with the
government over how it charged the aggravated sexual assault offenses immediately
after the parties’ concluded findings argument. Specifically, the military judge
questioned the government as to why it charged this case as an aggravated sexual
assault offense against someone who was substantially incapable of declining
participation versus an aggravated sexual assault offense involving the use of threats
or placing another person in fear of death or serious bodily harm.


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MEDEIROS—ARMY 20081092

a factfinding hearing on his collateral claim.” Id. In fact, a post-trial evidentiary
hearing need not occur if the following principle applies:

              Fourth, if the affidavit is factually adequate on its face but
              the appellate filings and the record as a whole
              ‘compellingly demonstrate’ the improbability of those
              facts, the Court may discount those factual assertions and
              decide the legal issue. . . .

Id. at 248.

       We find that this fourth Ginn principle applies in appellant’s case; therefore,
an evidentiary hearing on appellant’s claim of ineffective assistance of counsel need
not occur. In fact, we find the appellate filings and the record as a whole establish
the absurdity of the claims made in appellant’s affidavit and that the claims made in
appellant’s affidavit utterly lack any credibility. Instead, the representation
contained in the record of trial establishes civilian defense counsel’s effort to
properly and ably represent appellant in a professional manner throughout his court-
martial.

       Appellant first makes the following claim in his affidavit:

              After telling me about the possibility of a deal, my
              civilian defense counsel told me that I would be ‘stupid’
              to plead guilty because there was no doubt we would win
              the case. [H]e even said this would be a ‘slam dunk’ case
              and he couldn’t lose. He told me I would not be found
              guilty and that I would not serve any confinement.

       However, this particular claim is wholly inconsistent with the record of trial,
as appellant initially pleaded guilty without the benefit of a pretrial agreement to
one specification of maiming, four specifications of assault consummated by battery,
one specification of adultery, and one specification of communicating a threat. The
military judge accepted appellant’s guilty pleas to two specifications of assault
consummated by battery, one specification of adultery, and one specification of
communicating a threat. If the military judge would have further accepted
appellant’s pleas to maiming and two specifications of assault consummated by
battery, appellant would have faced a maximum punishment of a dishonorable
discharge, confinement for twenty-six years, total forfeiture of all pay and
allowances, and reduction to the grade of E-1 based solely upon his initial guilty
plea. Thus, it strains credulity to believe that civilian defense counsel informed
appellant he had a “slam dunk” case that would not result in any conviction or
sentence to confinement, when appellant initially attempted to plead guilty to seven
different offenses.



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MEDEIROS—ARMY 20081092


      Second, appellant states the following in his affidavit:

             Based solely on the advice of my civilian counsel, I
             decided not to submit an offer to plead guilty in exchange
             for the sentence cap. . . . The only reason I did not submit
             the offer to plead guilty is because my civilian defense
             counsel told me that I would not lose and that I would not
             go to jail. Had my civilian defense counsel properly
             advised me, and informed me of the lack of defense
             available to contradict the overwhelming evidence, I
             would have pled guilty to the charged offenses in
             exchange for a fifteen year cap on my sentence.

      Again, appellant’s claims are altogether inconsistent with the record of trial
and the appellate filings. In addition to appellant’s initial guilty plea to seven
offenses, civilian defense counsel’s findings argument demonstrates a logical
assessment of appellant’s case. Civilian defense counsel only argued that appellant
was not guilty of the sex offenses (Charge II and its Specification, Charge IV and its
Specification, and Additional Charge II and its Specification), the attempted
kidnapping offense (Additional Charge I and its Specification), and the kidnapping
offense (Specification 2 of Charge VI).

       On the other hand, civilian defense counsel made no attempt to argue that
appellant should be acquitted of the maiming offense (Charge III and its
Specification) or five of the assaults consummated by battery (Specifications 2, 3, 5,
7, and 8 of Charge V). In addition, civilian defense counsel argued that appellant
should be found guilty of an assault consummated by battery versus aggravated
assault (Specification 4 of Charge V). Thus, civilian defense counsel’s findings
argument is incompatible with the position that appellant would not “lose” or go to
jail.

        Moreover, appellant’s affidavit is strikingly inconsistent with the personal
letter that appellant drafted as part of his initial clemency packet under R.C.M.
1105. Appellant unambiguously stated in his first clemency letter that he denied the
potential pretrial agreement “on the sole basis that if I got 15 or 30 years it did not
matter I was going to kill myself either way.” (emphasis added). This statement
demonstrates the falseness associated with appellant’s current claim that “[t]he only
reason I did not submit the offer to plead guilty is because my civilian defense
counsel told me that I would not lose and that I would not go to jail.”

      Third, appellant swore to the following in his affidavit:




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MEDEIROS—ARMY 20081092

             The theory of the case, as told to me by my civilian
             defense counsel, was going to be that my friend [JC]
             committed the offenses and that he was ‘Brian.’

       The record likewise contradicts appellant’s claim. During the providence
inquiry into appellant’s failed attempt to plead guilty to the maiming offense,
appellant brought up “Brian.” After the military judge expressed reservations with
appellant’s “rendition,” civilian defense counsel stated that the “rendition” involving
“Brian” was “not the anticipated rendition.” Later, when contemplating a
continuance before trial on the remaining charges and specifications, civilian
defense counsel stated that matters were raised during the providence inquiry on
issues that the defense team thought were already “dealt with completely.” Clearly,
the entire providence inquiry negates the notion that the defense theory of the case
was going to center around making appellant’s friend, JC, the perpetrator because he
was “Brian.” Instead, the providence inquiry reveals civilian defense counsel’s best
attempts to assist appellant and to remove “Brian” as justification for appellant’s
criminal conduct.

      Finally, appellant made the following claim in his affidavit:

             My civilian defense counsel never told me the defense
             theory was going to be consent and I was unaware of this
             theory until my trial actually began. I did not believe this
             was a good theory at all for my case.

       Yet again, the record of trial entirely contradicts appellant’s claim. Civilian
defense counsel did not argue that LC consented to appellant’s conduct during his
findings argument. Instead, civilian defense counsel argued how certain elements of
certain offenses were not met. This also included appellant’s mistake-of-fact as to
consent with respect to the sex offenses based upon the pattern of sexual behavior
between appellant and LC. At no time during the findings argument did civilian
defense counsel argue that LC consented to the maiming or assault offenses.
Instead, civilian defense counsel essentially conceded appellant’s guilt to those
offenses. 3
      In sum, while appellant’s affidavit raises facts involving ineffective assistance
of counsel during the pretrial stage of his court-martial, the record as a whole
conclusively refutes those facts and demonstrates that appellant’s claims are

3
  We note that civilian defense counsel’s strategy with respect to the findings
argument ultimately resulted in appellant being found not guilty of both
specifications involving aggravated sexual assault and of the specification involving
kidnapping. Further, appellant does not allege that he received ineffective
assistance of counsel at trial by civilian defense counsel’s concession of guilt to the
maiming and assault specifications.


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“inherently incredible.” Ginn, 47 M.J. at 244 (quoting United States v. McGill, 11
F.3d 223, 226 (1st Cir. 1993)). Thus, this court discounts appellant’s factual
assertions and concludes that appellant did not receive ineffective assistance of
counsel during the pretrial portion of his court-martial. See Ginn, 47 M.J. at 248.

                                  CONCLUSION
      On consideration of the entire record, we hold the findings of guilty and the
sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings of guilty and the sentence are AFFIRMED.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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