          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                                Airman Basic CREE A. DENNIS
                                    United States Air Force

                                             ACM S32115

                                          25 February 2014

         Sentence adjudged 24 October 2012 by SPCM convened at Joint Base San
         Antonio-Lackland, Texas. Military Judge: Donald R. Eller, Jr. (sitting
         alone).

         Approved Sentence: Bad-conduct discharge, confinement for 6 months,
         and forfeiture of $500.00 pay per month for 6 months.

         Appellate Counsel for the Appellant: Captain Nicholas D. Carter

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Captain Richard J. Schrider; and
         Gerald R. Bruce, Esquire.

                                                  Before

                            ROAN, MARKSTEINER, and WIEDIE
                                Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.



MARKSTEINER, Judge:

        The appellant was tried by a military judge who found her guilty, in accordance
with her pleas, of four specifications of being absent without leave; one specification of
dereliction of duty; and four specifications of wrongfully using marijuana, in violation of
Articles 86, 92, and 112a, UCMJ, 10 U.S.C. §§ 886, 892, 912a. The approved and
adjudged sentence consisted of a bad-conduct discharge, confinement for 6 months, and
forfeiture of $500.00 pay per month for 6 months. In the single specified error, presented
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the appellant alleges
she received ineffective assistance of counsel. Specifically, she argues she would not
have pled guilty to the drug charge if her trial defense counsel had properly informed her
that commander-directed drug tests are inadmissible against an accused at a court-martial.
In support of her argument, she submitted an unsigned and largely non-specific affidavit
from a former co-worker which was ostensibly intended to call into question the
randomness of the first of five urinalyses which revealed the presence of the metabolite
of marijuana in her urine. The appellant’s trial defense counsel also submitted an
affidavit in which she detailed her actions and supporting rationale for the efforts she
undertook in the appellant’s case. We find the appellant’s argument to be without merit
and affirm.

          In sum, the appellant was lawfully subjected to a random urinalysis test on
12 July 2012. When the result of that test indicated she had used an illegal drug, the
appellant was required to provide a follow-up urine sample pursuant to standing air base
wing policy, consistent with United States v. Bickel, 30 M.J. 277 (C.M.A. 1990).
Eventually the appellant provided four additional follow-up urine samples, all pursuant to
the same policy, each of which tested positive for illegal drug use. In a post-trial
affidavit, the appellant’s trial defense counsel explained that according to her evaluation
of the evidence, since the initial test was the result of random selection and the
subsequent tests were lawful extensions of that first test, “there was no need to discuss
the admissibility of [a] command-directed urinalysis.” Trial defense counsel stated that
she informed the appellant “each positive urinalysis could and would be used against her
and . . . explained the possibility of filing a motion to exclude the Drug Testing Reports.”
Trial defense counsel reported she “discussed at length [with the appellant] the
unlikelihood of success of a motion of that nature, given the current state of the law, and
[the appellant] agreed with [her] assessment.”

        We review ineffective assistance of counsel claims de novo. United States v.
Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001) (citations omitted); United States v. Wiley,
47 M.J. 158, 159 (C.A.A.F. 1997). The Supreme Court held that the Sixth Amendment1
entitles criminal defendants to representation that does not fall “below an objective
standard of reasonableness” in light of “prevailing professional norms.” United States v.
Strickland, 466 U.S. 668, 688 (1984). Our inquiry into an attorney’s representation must
be “highly deferential” to the attorney’s performance and employ “a strong presumption”
that counsel’s conduct falls within the wide range of professionally competent
assistance.” Id. at 689. Our superior court has applied this standard to military courts-
martial, noting that, “[i]n order to prevail on a claim of ineffective assistance of counsel,
an appellant must demonstrate 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, 466 U.S. at 687; United States v. Mazza, 67 M.J.


1
    U.S. CONST. amend. VI.


                                             2                                   ACM S32115
470, 474 (C.A.A.F. 2009)). “[T]he likelihood of a different result must be substantial,
not just conceivable.” Harrington v. Richter, 131 S.Ct. 770 (2011) (citations omitted).

       We “must judge the reasonableness of counsel’s challenged conduct on the facts
of the particular case, viewed as of the time of counsel’s conduct.” Strickland,
466 U.S. at 690. In making that determination, we consider the totality of the
circumstances, bearing in mind that “counsel’s function, as elaborated in prevailing
professional norms, is to make the adversarial testing process work . . . [and]
recogniz[ing] that counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id.
The heavy burden of establishing that her trial defense counsel was ineffective belongs to
the appellant. See United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).

        When making the two-part inquiry into the reasonableness of counsel’s conduct
and whether prejudice resulted, we note that “in many cases review of the record itself is
sufficient” to resolve the appellant’s claims of ineffectiveness. United States v. Lewis,
42 M.J. 1, 3 (C.A.A.F. 1995). Evidentiary hearings are required if there is any dispute
regarding material facts in competing declarations submitted on appeal which cannot be
resolved by the record of trial and appellate filings. United States v. Ginn, 47 M.J. 236,
248 (C.A.A.F. 1997). Applying these standards, we find that any material conflict in the
respective declarations regarding this issue may be resolved by reference to the record
and appellate filings without the need for an evidentiary hearing.

         Having reviewed the totality of the circumstances contained in the record now
before us, and with due regard to strong presumption that her trial defense counsel
exercised reasonable professional judgment in the appellant’s representation, we find the
appellant failed to meet the heavy burden of establishing that the assistance she received
at trial was ineffective. Strickland, 466 U.S. at 668.

                                          Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and sentence are

                                      AFFIRMED.

             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court


                                            3                                  ACM S32115
