UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman First Class NICHOLAS M. GARRISON
United States Air Force
ACM 38093 (rem)
05 March 2014
Sentence adjudged 20 December 2011 by GCM convened at Tinker Air
Force Base, Oklahoma. Military Judge: J. Wesley Moore (sitting alone).
Approved Sentence: Bad-conduct discharge, confinement for 14 months,
forfeiture of all pay and allowances, and reduction to E-1.
Appellate Counsel for the Appellant: Major Anthony D. Ortiz.
Appellate Counsel for the United States: Colonel Don M. Christensen;
Lieutenant Colonel C. Taylor Smith; Major Brian C. Mason; and Gerald R.
Bruce, Esquire.
Before
ROAN, HARNEY, and WEBER
Appellate Military Judges
UPON REMAND
This opinion is subject to editorial correction before final release.
PER CURIAM:
A general court-martial composed of a military judge sitting alone convicted the
appellant, in accordance with his pleas, of failure to go and being absent without leave;
damaging military property; wrongful use of cocaine, hydrocodone, and oxycodone;
wrongful appropriation of military property; and assault consummated by a battery, in
violation of Articles 86, 108, 112a, 121, and 128, UCMJ,
10 U.S.C. §§ 886, 908, 912a,
921, 928. The adjudged and approved sentence consisted of a bad-conduct discharge,
confinement for 14 months, forfeiture of all pay and allowances, and reduction to E-1.
On 28 March 2013, we issued a decision denying the appellant relief. United
States v. Garrison, ACM 38093 (A.F. Ct. Crim. App. 28 March 2013) (unpub. op.). On
12 July 2013, upon our own motion, this Court vacated the previous decision for
reconsideration before a properly constituted panel, and affirmed our prior decision.
United States v. Garrison, ACM 38093 (recon) (A.F. Ct. Crim. App. 12 July 2013)
(unpub. op.). The appellant filed a supplemental petition for review with the Court of
Appeals for the Armed Forces on 13 September 2013. On 13 November 2013, our
superior court granted the appellant’s petition for review on the issue of whether our
panel was properly constituted. United States v. Garrison, ___ M.J. ___,
No. 14-0036/AF (Daily Journal 13 November 2013). In the same order, that Court set
aside our decision and remanded the case for further review and consideration of the
panel constitution under Article 66(c), UCMJ,
10 U.S.C. § 866(c).
Id.
Our decision today reaffirms our earlier decision dated 12 July 2013.
On appeal, the appellant argues his trial defense counsel was ineffective by failing
to “adequately explore [the a]ppellant’s mental state” and that he was not in a “suitable
mental condition” to make decisions about his pleas during his court-martial.* We
disagree.
We review claims of ineffective assistance of counsel de novo. United States v.
Mazza,
67 M.J. 470, 474 (C.A.A.F. 2009). Service members have a fundamental right to
the effective assistance of counsel at trial by courts-martial. United States v. Davis,
60 M.J. 469, 473 (C.A.A.F. 2005). To establish ineffective assistance of counsel, the
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
(C.A.A.F. 2010) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)).
The deficiency prong requires the appellant to show trial defense counsel’s
performance fell below an objective standard of reasonableness. Strickland,
466 U.S. at 688. The appellant must establish the “representation amounted to
incompetence under ‘prevailing professional norms.’” Harrington v. Richter,
___ U.S. ___,
131 S. Ct. 770, 788 (2011) (quoting Strickland,
466 U.S. at 690). The
prejudice prong requires the appellant to show a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland,
466 U.S. at 694. In doing so, the appellant “must surmount a very high
hurdle,” United States v. Alves,
53 M.J. 286, 289 (C.A.A.F. 2000) (citations and
quotation marks omitted), as counsel are presumed competent in the performance of their
representational duties. United States v. Anderson,
55 M.J. 198, 201 (C.A.A.F. 2001).
Thus, judicial scrutiny of trial defense counsel’s performance must be “highly deferential
*
The issue is raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
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and should not be colored by the distorting effects of hindsight.” Alves, 53 M.J. at 289
(citing United States v. Moulton,
47 M.J. 227, 229 (C.A.A.F. 1997)).
“[T]he defense bears the burden of establishing the truth of the factual allegations
that would provide the basis for finding deficient performance.” United States v. Tippit,
65 M.J. 69, 76 (C.A.A.F. 2007). When there is a factual dispute, appellate courts
determine whether further fact finding is required under United States v. Ginn,
47 M.J. 236 (C.A.A.F. 1997). If, however, the facts alleged by the appellant would not
result in relief under Strickland, we may address the claim without the necessity of
resolving the factual dispute. See Ginn, 47 M.J. at 248.
Applying the criteria in Ginn, we conclude that we can resolve this issue without
additional fact finding. Where an appellant has pled guilty to charges that are at issue on
appeal, we will consider the appellant’s post-trial declarations in the context of the sworn
admissions made by the appellant during the plea inquiry, in order to determine whether
the disputed matter requires a post-trial evidentiary hearing to be resolved. Ginn,
47 M.J. at 244. In an affidavit submitted in response to the appellant’s claim, trial
defense counsel stated a sanity board report did not show any reason for her to question
the appellant’s competence to enter into a plea agreement. Trial defense counsel also
stated that prior to trial she had several opportunities to discuss with the appellant his
case; the court-martial process; the pros and cons of a pretrial agreement versus a trial;
and the Government’s case against the appellant. Trial defense counsel confirmed it was
the appellant’s decision to accept a plea agreement, and she thoroughly reviewed the facts
of the case with him for the providence inquiry. According to trial defense counsel, the
appellant asked thoughtful questions, showed that he understood the process, and
participated fully in his trial.
The record of trial confirms this view. The convening authority ordered a sanity
board on 29 November 2011, the board convened on 5 December 2011, and the limited
results were published on 9 December 2001, 11 days before trial. The board concluded
the appellant was mentally responsible and competent to stand trial. During the plea
inquiry, the appellant stated he fully understood the elements of the offenses and
explained in an articulate, narrative manner why he believed he was guilty. He stated he
had fully discussed his case with his counsel; he was satisfied that his counsel’s advice
was in his best interest; he was pleading guilty voluntarily; and he was, in fact, guilty.
Additionally, he submitted a well-written plea for clemency, in which he again
acknowledged his guilt and expressed gratitude for being placed in confinement where he
could not continue his illegal drug use. He mentioned nothing about being dissatisfied
with his counsel or about his competence to understand his plea. Examining the appellate
filings and the record as a whole, we hold that the appellant was not denied effective
assistance of counsel.
3 ACM 38093 (rem)
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
4 ACM 38093 (rem)
