United States v. Sergeant ERIC D. SIMON ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant ERIC D. SIMON
United States Army, Appellant
ARMY 20160312
Headquarters, 1st Cavalry Division (Rear)(Provisional)
Douglas K. Watkins, Military Judge
Colonel Oren H. McKnelly, Staff Judge Advocate (pretrial)
Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (post-trial)
For Appellant: Major Christopher D. Coleman, JA; Captain Joshua G. Grubaugh, JA
(on brief).
For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Michael E. Korte, JA
(on brief).
16 June 2017
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SUMMARY DISPOSITION
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FEBBO, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of sexual abuse of a child under 12 years old, possession of
child pornography and distribution of child pornography, in violation of Articles
120b and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable
discharge, confinement for forty-two months, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one issue that does not merit detailed discussion or relief. 1 Two matters
1
Appellant seeks relief for dilatory post-trial processing of his case. The
government took 196 days from sentence to action in a case with a 120-page record
of trial. We find no due process violation in the post-trial processing of appellant’s
(continued…)
SIMON—ARMY 20160312
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982)—that his attorney was ineffective during presentencing and the
actual images of child pornography had to be introduced as evidence to support his
guilty plea—warrant discussion but no relief.
BACKGROUND
Appellant was caught surreptitiously taking pictures of female children at an
amusement park. A subsequent criminal investigation uncovered more than 200
images of child pornography, child erotica, and nude pictures of children on
appellant’s computer. The images of child pornography showed minors, as young as
two years of age, engaging in sexual intercourse with adults or other minors. The
images included minors masturbating, engaging in fellatio, anal sodomy, and other
sexual acts with adults. One of the images included a minor engaging in sexual acts
with a dog.
Appellant obtained these images by searching the “dark web” for child
pornography. Using an instant messaging application, appellant distributed images
of child pornography. Appellant also committed lewd acts upon a child when he
photographed his spouse, while in the presence of a child, nude and engaging in
sexual conduct.
The charged offenses included possession of more than 20 images of child
pornography and distribution of 10 images of child pornography. Appellant and the
convening authority entered into a pre-trial agreement wherein the appellant agreed
to plead guilty to the offenses and enter into a stipulation of fact with the
government.
During appellant’s guilty plea, the government introduced the stipulation of
fact. The parties did not introduce into evidence the actual images of child
pornography. As part of the providence inquiry, the military judge had appellant
describe each of the images of child pornography and explain why he believed he
knowingly and wrongfully possessed and distributed child pornography.
(…continued)
case. Considering the unjustified dilatory post-trial processing and the offenses of
which appellant was convicted, we nonetheless find the sentence was appropriate.
UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002)
(“[Pursuant to Article 66(c), UCMJ, service courts are] required to determine what
findings and sentence ‘should be approved,’ based on all the facts and circumstances
reflected in the record, including the unexplained and unreasonable post-trial delay.”).
See generally United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006).
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SIMON—ARMY 20160312
LAW AND DISCUSSION
1. Ineffective Assistance of Counsel During Presentencing
We review claims that an appellant did not receive effective assistance of
counsel de novo. United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015); United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012). “In 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 v. Washington, 466 U.S. 668, 687 (1984)).
When assessing Strickland’s second prong for prejudice, we require a showing
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. That
requires a “substantial,” not just “conceivable,” likelihood of a different result.
Harrington v. Richter, 562 U.S. 86, 112 (2011). “An appellant must establish a factual
foundation for a claim of ineffectiveness; second-guessing, sweeping generalizations,
and hindsight will not suffice.” United States v. Davis, 60 M.J. 469, 473 (C.A.A.F.
2005) (citing United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002)).
As far as presentencing procedures, ineffective assistance of counsel can occur
when counsel fails to introduce evidence that would be of value to the accused in
extenuation and mitigation. United States v. Boone, 49 M.J. 187, 196 (C.A.A.F.
1998).
Appellant provided the court with a sworn affidavit detailing his criticisms of
his defense counsel for not presenting live in-court testimony during presentencing.
Appellant claims his counsel never fully explained the importance of presentencing
character witnesses. Instead, the character letters submitted to the court were
merely templates that focused on why appellant should stay in the Army instead of
appellant’s general good character and steps that he had taken to rehabilitate
himself. Appellant asserts if he had known about the importance of presentencing
witnesses, he would have requested the individuals that wrote letters to testify in
person. Appellant states he would have also called his spouse and another
individual to testify on his behalf. However, the record does not support appellant’s
assertion that his counsel was ineffective for not presenting live testimony during
sentencing at trial.
First, appellant signed an offer to plead guilty and specifically waived
production of witnesses at government expense from outside a 50-mile radius of the
trial location. Appellant agreed that telephonic testimony or stipulations of expected
testimony were an admissible substitute for live witness testimony at trial.
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SIMON—ARMY 20160312
Second, appellant has not established that the personal appearance of the
witnesses would have provided anything that was not already contained in the letters
submitted at trial. The military judge explained to appellant that he could present
sentencing evidence to include documentary evidence and sentencing witnesses.
Appellant stated on the record he understood his rights to present extenuation and
mitigation evidence at trial.
“[W]hen claiming ineffective assistance of counsel for failure to present the
testimony of a particular witness, an appellant must specifically allege the precise
substance of the witness’ missing testimony.” United States v. Clemente, 51 M.J.
547, 550-51 (Army Ct. Crim. App. 1999) (citing United States Russell, 48 M.J. 139,
141 (C.A.A.F. 1998); United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997),
cert. denied, 522 U.S. 1114 (1998)). To support a claim for ineffective assistance of
counsel, facts must be included in a statement, by someone with personal
knowledge, that is a sworn affidavit or a declaration made under penalty of perjury
for this court to consider the statement on appeal. United States v. Cade, 75 M.J.
923, 929 (Army Ct. Crim. App. 2016), pet. denied, 76 M.J. 133 (C.A.A.F. 2017).
For the witnesses that already provided statements during sentencing,
appellant has not provided sworn affidavits or declarations from the witnesses of
what they would have testified to differently in-person. Similarly, he does not
provide affidavits or declarations from his spouse and his purported additional
witnesses about their expected testimony. Since his spouse was a co-actor in the
sexual abuse of a child, the court notes that his spouse’s sentencing testimony may
have been subjected to impeachment by the government. Appellant has failed to
establish his counsel was ineffective for failing to call defense witnesses during
presentencing. Clemente, 51 M.J. at 550.
2. Record Incomplete to Conduct Appellate Review
Appellant asserts that the actual images of child pornography had to be
introduced as evidence to support his guilty plea. Appellant asserts that without the
actual images, this court cannot conduct an adequate Article 66, UCMJ review.
Appellant agreed that the facts contained in the stipulation of fact were true
and admissible at trial. As an initial matter, it is within the sound discretion of a
defense counsel, in consultation with their client, to decide which exhibits should be
attached as part of the stipulation of fact, if any. Strategic and tactical decisions are
within the sole discretion of the defense counsel. United States v. Dobrava, 64 M.J.
503, 505 (Army Ct. Crim. App. 2006). Introduction of images of child pornography
can be far more aggravating than a thousand words describing the images. To
minimize aggravation evidence, a defense counsel may decide that it is more
advantageous for their client not to present the actual images of child pornography
to the court.
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SIMON—ARMY 20160312
Either way, additional evidence is not required to be attached to a stipulation
of fact or introduced at trial to provide extrinsic proof of the facts already agreed
upon by the parties in the stipulation of fact. “The government is not required to
introduce evidence of appellant’s guilt when an accused enters a plea of guilty.”
United States v. Updegrove, ARMY 20160166, 2017 CCA LEXIS 36, *3 (Army Ct.
Crim. App. 23 Jan. 2017), pet. denied, 2017 CAAF LEXIS 581 (C.A.A.F. 5 Jun.
2017). “Although child pornography images are often admitted as exhibits at trial,
there is no statutory or regulatory requirement that such images be admitted as
exhibits in a guilty plea case when the court is otherwise satisfied an accused has
providently admitted they constitute child pornography.” United States v. Rominger,
ARMY 20080423, 2009 CCA LEXIS 315, *4-5 (Army Ct. Crim. App. 8 Jun. 2009),
pet. denied, 68 M.J. 230 (C.A.A.F. 2009). This court routinely conducts Article 66,
UCMJ reviews of records of “naked guilty pleas” that do not have a stipulation of
fact or other extrinsic evidence introduced to support the guilty plea. In this case,
the parties completed a stipulation of fact.
As the military judge explained and appellant agreed, the “contents of the
stipulation of fact are true, and if entered into evidence, are uncontradicted facts in
this case.” Appellant agreed that the stipulation of fact could be used to determine
if appellant was in fact guilty of the offenses, ordinarily cannot be contradicted, and
the content was true and correct. Appellant entered a correct and valid plea of guilty
to the offenses.
Appellant, using a file name for each image, explained to the military judge
why each of the twenty-one images he possessed and ten images he distributed, was
child pornography. Our review of the record establishes that the appellant provided
sufficient details about the thirty-one images to establish a factual basis that the
images were both in law and fact child pornography.
The facts elicited in the providence inquiry were consistent with appellant’s
stipulation of fact. The colloquy between appellant and the military judge
adequately established appellant’s guilt to the offenses.
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
Senior Judge MULLIGAN and Judge WOLFE concur.
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk
ClerkofofCourt
Court
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