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

                             UNITED STATES, Appellee
                                          v.
                             Specialist BYRON E. BERO
                            United States Army, Appellant

                                    ARMY 20120694

    Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell (pretrial)
                        Headquarters, Fort Campbell (post-trial)
                   Timothy Grammel and Fansu Ku, Military Judges
         Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate (advice)
        Lieutenant Colonel Sebastian A. Edwards, Acting Staff Judge Advocate
                                  (recommendation)


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

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Steven J. Collins, JA; Captain Daniel H. Karna, JA (on brief).


                                     31 October 2014

                               -----------------------------------
                                SUMMARY DISPOSITION
                               -----------------------------------

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of wrongful sexual contact in violation of
Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2006 & Sup. IV
2011) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for sixty days, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence. 1

1
 The convening authority also deferred automatic forfeiture of pay and allowances
until action.
BERO—ARMY 20120694

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

                                  BACKGROUND

      Defense counsels, Captain (CPT) MZ and CPT SA, represented appellant
during his court-martial. Their representation continued through the post-trial phase
of appellant’s trial to include the submission of clemency matters to the convening
authority in accordance with Rules for Court-Martial 1105 and 1106.

        In a statement made under penalty of perjury, filed contemporaneously with
his pleadings before this court, appellant claims that his defense counsel, CPT MZ,
was ineffective during the post-trial phase of his court-martial. Specifically,
appellant alleges CPT MZ did not submit appellant’s mother’s 23-page type-written
letter to the convening authority as he had requested. Appellant states:

             After serving my sentence to confinement, I returned to
             Fort Campbell to complete the out-processing procedure.
             During that time, I met in person with my trial defense
             attorney, Captain [MZ], to discuss what I wanted to
             submit to the convening authority as part of the clemency
             process . . . .

             I presented CPT [MZ] with a stack of approximately 40
             pages of documents. The documents included a letter
             from my mother, Ms. [JB], to the convening authority.
             The letter was approximately 23 typed pages long and
             consisted of a list of inconsistencies in testimony by the
             alleged victim, names of witnesses who my defense
             counsel failed to contact or have testify on my behalf, and
             notes concerning other matters which appeared to be
             problematic with the proceedings against me.

             I informed CPT [MZ] that I wanted these documents
             included in my [clemency] submissions. CPT [MZ]
             appeared concerned about the submissions and attempted
             to dissuade me from including them in my submissions. I
             reiterated that I wanted them included. At the conclusion
             of our conversation, I once again informed CPT [MZ] that
             I wanted the documents included in my [clemency]
             matters.




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BERO—ARMY 20120694

             Upon receipt of my record of trial, I discovered that CPT
             [MZ] did not include the documents that I instructed him
             to include in my [clemency] matters.

        The letter and corresponding attachments from appellant’s mother, among
other things, alleged that CPT MZ provided ineffective assistance of counsel at trial,
including various deficiencies such as CPT MZ’s alleged failure to interview or call
witnesses on appellant’s behalf, not introducing other favorable evidence on behalf
of appellant, and not being prepared to counter the government’s evidence. The
letter also outlined other concerns with her son’s court-martial, including recent
public concern over sexual abuse in the military, and other matters she deemed
helpful in providing the convening authority some insight into appellant’s case.

        Upon order from this court, CPT MZ provided an affidavit indicating that
appellant’s mother – and not appellant – provided him with the letter and said
attachments. Captain MZ states that during a meeting on 11 February 2013,
appellant “did not want the letter included in his clemency submissions. . . . I asked
appellant whether he believed any of his mother’s assertions contained in the letter.
Appellant replied that he did not. . . . Appellant further stated that he did not share
his mother’s views and that she was ‘driving him nuts’ or words to that effect.”
Captain MZ indicates that he believed the letter would hurt appellant’s chances for
clemency, in part because the letter was “rambling and factually incorrect” and also
because the letter “contained sexually explicit email traffic between her and
[appellant] which did not further [my] client’s cause.” Captain MZ indicates that
appellant categorically denied sharing any views expressed by his mother in the
letter, and that he was not using his mother as a vehicle to voice an ineffective
assistance of counsel claim.

      Captain MZ indicates that during a second meeting held on 19 February 2013,
appellant had the same stance regarding his mother’s letter as he did in the 11
February 2013 meeting.

      Attached to CPT MZ’s affidavit is a memorandum for record (MFR) dated 20
February 2013, contemporaneously drafted during the time frame CPT MZ met with
appellant. The MFR is signed by both CPT MZ and appellant’s co-counsel and
addresses the issues raised by appellant’s mother in her letter in some detail. The
MFR indicates appellant was offered the opportunity to have different counsel
represent him, in part, due to the allegation suggesting ineffective assistance of
counsel. The MFR states that appellant “explained that his mother’s letter did not
represent his views and that he did not want the letter included in his appellate
matters.” According the MFR, appellant seemed frustrated with his mother’s
involvement in the case.




                                           3
BERO—ARMY 20120694

                              LAW AND DISCUSSION

       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)).

      In United States v. Lee, 52 M.J. 51, 52 (C.A.A.F. 1999), our superior court
explained:

             The right to effective representation extends to post-trial
             proceedings. United States v. Cornett, 47 MJ 128, 133
             (1997). Defense counsel is responsible for post-trial
             tactical decisions, but he should act “after consultation
             with the client where feasible and appropriate.” United
             States v. MacCulloch, 40 MJ 236, 239 (CMA 1994).

“[C]ounsel do not have the authority unilaterally to refuse to submit matters which
the client desires to submit. Counsel's duty is to advise, but the final decision as to
what, if anything, to submit rests with the accused.” United States v. Lewis, 42 M.J.
1, 4 (C.A.A.F. 1995).

        As a threshold matter, because appellant and counsel filed conflicting post-
trial affidavits, 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. 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.

       In making our decision, we find the MFR created during the same timeframe
defense counsel were meeting with appellant and his mother about his clemency
matters to be compelling regarding appellant’s wishes. The MFR was drafted nearly
a year before appellant’s claim of ineffective assistance. Defense counsel’s record
keeping is an excellent example of documenting interactions with a client so as to



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BERO—ARMY 20120694

ably and accurately respond to allegations of ineffective assistance which may occur
in the future.

       Accordingly, the record as a whole and the appellate filings compellingly
demonstrate the improbability of appellant’s claim of ineffective assistance of
counsel. This court discounts appellant’s factual assertions and finds appellant has
failed to demonstrate counsel’s performance was deficient. See Strickland, 466 U.S.
at 687; Ginn, 47 M.J. at 248. We, therefore, find no validity in appellant’s
ineffective assistance claim.

                                  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.


                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:




                                      MALCOLM
                                       MALCOLMH.H.SQUIRES,
                                                       SQUIRES,JR.
                                                                JR.
                                      Clerk
                                       ClerkofofCourt
                                                 Court




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