UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              HAIGHT, PENLAND, and WOLFE
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                               Captain JAMES H. LEE
                             United States Army, Appellant

                                     ARMY 20140309

               Headquarters, National Training Center and Fort Irwin
                        Douglas K. Watkins, Military Judge
             Lieutenant Colonel Jeffrey A. Miller, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Charles D. Lozano, JA
(on brief); Colonel Mary J. Bradley, JA; Lieutenant Colonel Charles D. Lozano, JA
(on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major John K. Choike, JA; Captain Robyn M. Chatwood, JA (on brief).


                                     11 February 2016

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT, Judge:

      A military judge sitting as a general court-martial convicted appellant,
pursuant to his plea, of presenting for approval and payment a false claim against the
United States, in violation of Article 132, Uniform Code of Military Justice, 10
U.S.C. § 932 (2012) [hereinafter UCMJ]. The military judge sentenced appellant to
a dismissal and a fine in the amount of $3,500.00. The convening authority
approved the adjudged sentence.

      This case is before us for review pursuant to Article 66, UCMJ. Appellant
assigns three errors, two of which allege ineffective assistance of counsel. While we
discuss the allegations of ineffective assistance of counsel, we find none of the
assigned errors merits relief.
LEE—ARMY 20140309


                                  BACKGROUND

       When changing duty stations from Fort Leonard Wood, Missouri, to Fort
Irwin, California, under the guise of doing a legitimate, partial Do-It-Yourself move
of household goods, appellant went to a hardware store, purchased multiple heavy
bags of cement, put them in his privately owned vehicle, weighed that vehicle, and
then immediately returned those bags of cement for a refund. Upon arrival at Fort
Irwin, appellant submitted a claim for reimbursement based upon the fraudulent
weight ticket. Appellant’s scheme was found out, and he ultimately pleaded guilty
to fraud against the United States without benefit of a pretrial agreement or
stipulation of fact.

       Appellant now claims he was denied his Sixth Amendment right to effective
assistance of counsel when his defense counsel failed to inform him of the process
for negotiating pretrial agreements or submitting an offer to plead guilty. This
failure, according to appellant, led to appellant’s decision to plead guilty and be
sentenced by a military judge alone without the benefit of a pretrial agreement.
Appellant also claims he was denied his Sixth Amendment right to counsel when his
defense counsel failed to identify and investigate potential mitigation evidence.
Appellant submitted affidavits in support of his assertions. Upon an order from this
court, defense counsel submitted an affidavit responding to appellant’s claims.

                             LAW AND DISCUSSION

       “Claims of ineffective assistance of counsel are reviewed de novo.” United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011). In evaluating allegations of
ineffective assistance of counsel, we apply the standard set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). This standard requires appellant to
demonstrate: (1) that counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice. Id. Appellant must show “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. The relevant issue is whether counsel’s conduct
failed to meet an “objective standard of reasonableness” such that it fell outside the
“wide range of professionally competent assistance.” Id. at 688, 690. “On appellate
review, there is a ‘strong presumption’ that counsel was competent.” United States
v. Grigoruk, 56 M.J. 304, 306-307 (C.A.A.F. 2002) (citing Strickland, 466 U.S. at
689).




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                 A. Claim that Ineffective Assistance of Counsel Led
                      Appellant to Plead Guilty Without a Pretrial
                                       Agreement

      First, we must determine if a post-trial evidentiary hearing is required with
respect to this particular claim of ineffective assistance of counsel. It is not.

       Appellant submitted an affidavit wherein he claims he was totally unaware
that his defense counsel could attempt to negotiate a pretrial agreement with the
convening authority or submit an offer to plead guilty. To the contrary, in his
affidavit, defense counsel swears that he fully discussed pretrial options with his
client, to include offers to plead, deals, sentence caps, and resignations in lieu of
court-martial. 1

      United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997), provides the
following guidance applicable to this claim of ineffective assistance.

             [I]f the [appellant’s] 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 [of Criminal Appeals] may discount those
             factual assertions and decide the legal issue.

Furthermore, Ginn continues:

             [W]hen an appellate claim of ineffective representation
             contradicts a matter that is within the record of a guilty
             plea, an appellate court may decide the issue on the basis
             of the appellate file and record (including the admissions
             made in the plea inquiry at trial and appellant’s expression
             of satisfaction with counsel at trial) unless the appellant
             sets forth facts that would rationally explain why he would
             have made such statements at trial but not upon appeal.

Id.

       At trial, appellant repeatedly confirmed to the military judge that not only was
he satisfied with his defense counsel but also that he had consulted fully with his
defense counsel, had received the full benefit of counsel’s advice, and was satisfied
that counsel’s advice had been in appellant’s best interest. There is no reason now


1
 Appellant, with counsel’s assistance, did submit a resignation in lieu of court-
martial. It was disapproved at the Secretariat level.
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LEE—ARMY 20140309


to doubt the propriety of appellant’s expressed satisfaction. This is particularly true
in light of the fact that appellant affirmatively agreed that he had been provided
“enough time and opportunity to discuss this case” with counsel immediately after
the military judge had inquired about the existence of pretrial agreements or any
other agreements or promises made “to get [appellant] to plead guilty.”

       Beyond his assertions at trial, the appellate record now contains definitive
evidence that appellant was fully aware of pretrial options such as offers to plead,
pretrial agreements, and sentence caps. Months before trial, appellant signed an
“Acknowledgment of Rights Advisement.” This memorandum, which documents
advice provided to appellant by his defense counsel, contains an entire section
outlining the ability to submit offers to plead, enter into pretrial agreements, and
negotiate sentence limitations. Contrary to what appellant alleges in his assigned
error, he was fully aware of the “process for negotiating pretrial agreements or
submitting an offer to plead.”

       Even assuming that counsel was deficient in informing his client of pretrial
options, appellant has failed to meet his burden to establish prejudice. See United
States v. Quick, 59 M.J. 383 (C.A.A.F. 2004). Not only is there no right to a pretrial
agreement, appellant does not even assert that he would not have pleaded guilty
absent the alleged ineffectiveness. Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012)
(citing Weatherford v. Bursey, 429 U.S. 545, 561 (1977)); see also United States v.
Rose, 71 M.J. 138 (C.A.A.F. 2012). Accordingly, this claim of ineffective
assistance of counsel must fail.

                 B. Claim that Counsel was Ineffective by Failing to
                 Identify and Investigate Potential Mitigation Evidence

      Again, we must determine if a post-trial evidentiary hearing is required with
respect to this particular claim of ineffective assistance of counsel. Again, it is not.

        Before trial, appellant told his counsel that he was “struggling with depression
. . . and feeling a great deal of anxiety.” Appellant also advised counsel that he was
“seeing Behavioral Health” as well as receiving spiritual counseling from a military
chaplain.

      In preparation for trial, counsel and client discussed potential evidence for the
presentencing stage of the court-martial. Counsel desired to present evidence of
“past military performance, character, and rehabilitative potential.” Furthermore,
counsel advised appellant that “it would be more appropriate for [the military
chaplain] to assist . . . during the clemency phase.” The adjudged sentence included
a dismissal and a $3500 fine but no confinement or forfeitures.



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LEE—ARMY 20140309


       When coordinating his Rule for Courts-Martial [hereinafter R.C.M.] 1105
submission with counsel, appellant drafted a letter of apology in which it became
apparent that his depression had been more serious than previously revealed to
counsel. Appellant further asserted he had been suicidal but, with help from
Behavioral Health and the chaplain, was now on a better path and was healing from
his past depression.

       Appellant now claims that his counsel was ineffective because appellant’s
general statements regarding depression and anxiety “should have triggered” counsel
to find out the depth, extent, and exact nature of appellant’s mental health issues.
Appellant argues the failure to probe deeper into his mental health problems was
prejudicial because further investigation would have led to more and different types
of extenuation and mitigation evidence than what was presented at trial.

       In his affidavit, defense counsel responds and agrees that he was unaware of
appellant’s past suicidal ideations or the depth of appellant’s depression until
reviewing the final draft of appellant’s apology to be included in the R.C.M. 1105
submission. Defense counsel details the steps he did take in light of his limited
knowledge of appellant’s ongoing anxiety. These steps included a complete review
of “the physical, medical, and mental records” which were submitted as part of
appellant’s resignation packet, contact with the chaplain, and conversations with
appellant’s supervising officers, appellant’s subordinates, as well as appellant’s
brother. None of these records or conversations with people close to appellant,
despite “persistent questioning regarding background, mentorship, emotional and
psychological well-being,” even hinted that appellant’s mental state had ever
declined to the serious depths at which it had apparently reached. Indeed, in his
affidavit, defense counsel voices frustration that his client did not earlier disclose
the level of his depression despite repeated and privileged conversations regarding
possible explanations as to why this otherwise commendable officer had engaged in
an isolated act of criminal conduct.

       Regarding the chaplain, counsel thought it best not to call him as a sentencing
witness. The defense had decided to approach this guilty plea from “a high ground
that rested on appellant’s immediate acceptance of guilt post-confrontation.” The
chaplain’s testimony regarding appellant’s gradual spiritual transformation in the
months leading up to trial “would have directly contradicted the relevant timing of
that testimony.” Also, defense counsel was of the opinion that because the chaplain
“seemed completely aghast and almost indignant when considering the Command’s
decision to take the case to a court-martial,” his testimony would undercut the
defense’s approach to the presentencing case.

      Again, we look to guidance from Ginn.



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LEE—ARMY 20140309


             [I]f the facts alleged in the [appellant’s] affidavit allege
             an error that would not result in relief even if any factual
             dispute were resolved in appellant’s favor, the claim may
             be rejected on that basis.

             ....

              . . . if the affidavit is factually adequate on its face to
             state a claim of legal error and the Government either does
             not contest the relevant facts or offers an affidavit that
             expressly agrees with those facts, the court can proceed to
             decide the legal issue on the basis of those uncontroverted
             facts.

Ginn, 47 M.J. at 248.

         Appellant and trial defense counsel agree as to what counsel knew and when
he knew it with respect to appellant’s mental issues and past suicidal ideations. The
fact is that appellant was not as forthcoming with his counsel as he could have been
and now faults counsel for not independently discovering the depth of appellant’s
depression. We decline to find such fault.

       The decision not to call the chaplain to testify was one of a strategic or
tactical nature. United States v. Paxton, 64 M.J. 484, 489-90 (C.A.A.F. 2007). It is
well-established that, “[a]s a general matter, we will not second-guess” decisions of
that type by defense counsel. United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F.
2009) (citations and internal quotation marks omitted). We are satisfied that trial
defense counsel made a “reasoned tactical decision” regarding the chaplain. United
States v. Weathersby, 48 M.J. 668, 673 (Army Ct. Crim. App. 1998). Defense
counsel was not ineffective in his preparation for and presentation of appellant’s
sentencing case.

       Even assuming deficient performance, we find appellant has not met his
burden to show that any difference in counsel’s pretrial preparation would have led
to a more favorable outcome or one that is more reliable. See United States v.
Akbar, 74 M.J. 364 (2015). The President has specifically authorized that
“[r]egardless of the maximum punishment specified for an offense in Part IV of [the
Manual for Courts-Martial], a dismissal may be adjudged for any offense of which a
commissioned officer … has been found guilty.” R.C.M. 1003(b)(8)(A).
Appellant’s fraud went straight and directly to his integrity and trustworthiness.

      Like the previously discussed allegation, this claim of ineffective assistance
of counsel also fails.

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LEE—ARMY 20140309


                                  CONCLUSION

      On consideration of the entire record and the submissions of the parties, the
findings of guilty and the sentence are AFFIRMED.

      Judge PENLAND and Judge WOLFE concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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