United States v. Yarberry ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, ATTANASIO, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Logan A. YARBERRY
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202100117
Decided: 25 July 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Kevin S. Woodard
Sentence adjudged 5 March 2021 by a special court-martial convened
at Marine Corps Base Camp Lejeune, North Carolina, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment: reduc-
tion to E-1, confinement for 12 months, and a bad-conduct discharge.
For Appellant:
Captain Thomas P. Belsky, JAGC, USN
For Appellee:
Captain Tyler W. Blair, USMC
Lieutenant Gregory A. Rustico, JAGC, USN
Judge ATTANASIO delivered the opinion of the Court, in which Senior
Judge GASTON and Judge HOUTZ joined.
United States v. Yarberry, NMCCA No. 202100117
Opinion of the Court
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
ATTANASIO, Judge:
Appellant was convicted, in accordance with his pleas, of violation of a law-
ful general order and wrongful use and possession of controlled substances in
violation of Articles 92 and 112a, Uniform Code of Military Justice, 1 for using
lysergic acid diethylamide and possessing drug paraphernalia, marijuana, ly-
sergic acid amide, and a naturally occurring intoxicating substance (5-Meth-
oxy-N-N-dimethyltryptamine) with the intent to induce intoxication, excita-
tion, or stupefaction.
Appellant asserts in his sole assignment of error that his trial defense coun-
sel were ineffective for failing to seek credit for the 77 days he spent in pretrial
restriction under conditions tantamount to confinement, and for negotiating a
plea agreement that waived his right to litigate this issue. We find no prejudi-
cial error and affirm.
I. BACKGROUND
After serving a week in pretrial confinement, Appellant spent 77 days in
pretrial restriction until the day of his guilty pleas and sentencing. His two
trial defense counsel [TDC], Captains Papa and Bravo, USMC, 2 assisted him
in negotiating a plea agreement to plead guilty to the charges and specifica-
tions (excepting certain language) in exchange for a sentence at a special court-
martial that included reduction to E-1, confinement for 12 months, and a bad-
conduct discharge. As part of the plea agreement, Appellant also agreed to
waive all waivable motions.
1 10 U.S.C. §§ 892, 912a.
2 All names in this opinion, other than those of Appellant, the judges, and appellate
counsel, are pseudonyms. Captain Papa was a first lieutenant at the time of trial, but
was subsequently promoted.
2
United States v. Yarberry, NMCCA No. 202100117
Opinion of the Court
The record of trial reveals no suggestion that Appellant felt aggrieved by
the conditions of his pretrial restriction. He sought no credit pursuant to
United States v. Mason3 based on any claim that his time in pretrial restriction
was tantamount to confinement. He did not raise the issue as an objection, as
a motion for appropriate relief, or as a matter in extenuation or mitigation
during his sentencing case. He agreed with his TDC’s statement to the military
judge that he had not been illegally punished prior to trial. And he made no
mention of his pretrial restriction in his subsequent clemency submission to
the convening authority.
During the trial, Appellant informed the military judge that he understood
all provisions of the plea agreement. He stated he had had enough time to dis-
cuss his case with TDC, had “fully consulted with [TDC] and received the full
benefit of their advice,” and was satisfied that TDC’s advice had been in his
best interest. 4
On appeal, Appellant asserts for the first time that the conditions of his
pretrial restriction were tantamount to confinement and that his TDC were
ineffective for not seeking Mason credit for those days and for agreeing to the
plea agreement’s provision waiving all waivable motions, which gave up his
right to challenge the conditions of his restriction.
II. DISCUSSION
We review claims of ineffective assistance of counsel de novo. 5 “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.” 6 We “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” 7 “[W]hen a claim of ineffective assistance of counsel is premised
3 United States v. Mason, 19 M.J. 274 (C.M.A. 1985) (summary disposition) (grant-
ing day-for-day confinement credit for time spent in pretrial restriction under condi-
tions tantamount to confinement).
4 R. at 99.
5 United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009).
6 United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland v.
Washington, 466 U.S. 668 (1984)).
7 Strickland, 466 U.S. at 689.
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United States v. Yarberry, NMCCA No. 202100117
Opinion of the Court
on counsel’s failure to make a motion . . . an appellant must show that there is
a reasonable probability that such a motion would have been meritorious.” 8 In
this regard, the term “meritorious” is synonymous with “successful.” 9 “[T]he
decisional issue is whether [the a]ppellant has carried his burden to show that
his counsel would have been successful if he filed a timely motion.” 10
In order to determine whether there is a reasonable probability that a mo-
tion seeking Mason credit would have been successful, we must consider the
underlying issue of whether the conditions of Appellant’s pretrial restriction
were tantamount to confinement. “We review de novo [this] ultimate legal
question of whether certain pretrial restrictions are tantamount to confine-
ment.”11 In determining this issue, we consider the totality of the conditions
imposed, including “prior examples of such cases . . . and the factors gleaned
from them[.]” 12 These factors include:
the nature of the restraint (physical or moral), the area or scope
of the restraint (confined to post, barracks, room, etc.), the types
of duties, if any, performed during the restraint (routine military
duties, fatigue duties, etc.), and the degree of privacy enjoyed
within the area of restraint. Other important conditions which
may significantly affect one or more of these factors are: whether
the accused was required to sign in periodically with some su-
pervising authority; whether a charge of quarters or other au-
thority periodically checked to ensure the accused’s presence;
whether the accused was required to be under armed or un-
armed escort; whether and to what degree [the] accused was al-
lowed visitation and telephone privileges; what religious, medi-
cal, recreational, educational, or other support facilities were
available for the accused’s use; the location of the accused’s
sleeping accommodations; and whether the accused was allowed
8 United States v. Jameson, 65 M.J. 160, 163-64 (C.A.A.F. 2007) (quoting United
States v. McConnell, 55 M.J. 479, 482 (C.A.A.F 2001) (motion to suppress evidence)).
9 Id. at 164.
10 Id.
11 United States v. King, 58 M.J. 110, 113 (C.A.A.F. 2003) (citations omitted).
12 Id. (citation and internal quotation marks omitted).
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United States v. Yarberry, NMCCA No. 202100117
Opinion of the Court
to retain and use his personal property (including his civilian
clothing). 13
In general, analysis of the foregoing factors will reveal “levels of restraint . . .
which fall somewhere on a spectrum that ranges from ‘restriction’ to ‘confine-
ment.’ If the level of restraint falls so close to the ‘confinement’ end of the spec-
trum as to be tantamount thereto, [an] appellant is entitled to appropriate and
meaningful administrative credit against his sentence.” 14
Appellant alleges his TDC neither asked him about nor investigated the
nature and conditions of his pretrial restriction, and did not explain that he
had the right to raise the issue of restriction tantamount to confinement and
that the provision in the plea agreement term waiving all waivable motions
barred him from raising the issue at trial or on appeal. He alleges that he only
appreciated the issues concerning the conditions of his restriction after he re-
ported to the brig to serve his adjudged sentence; that he only agreed to waive
all waivable motions in the plea agreement because he did not know about the
potential issue of illegal pretrial restriction; and that if he had known he had
a motion for illegal pretrial restriction he would not have agreed to this term.
As to the conditions of his pretrial restriction, Appellant alleges he was
limited primarily to a barracks room, could not leave the barracks building
without permission or an escort, and could not leave the base. He states that
he needed permission to have visitors, but was told no visitor requests would
be approved, which prevented him from seeing his fiancée. He states that be-
cause he lived off base when his pretrial restraint began, he lacked a meal card
and therefore did not use the mess hall for meals during his restriction and
had to arrange for fellow Marines to bring meals to him in the barracks. He
states that he was not allowed to receive deliveries and therefore did not have
any of his civilian clothes or personal belongings during his time on restriction.
He states that the conditions of his pretrial restriction also undercut medical
guidance concerning his service-connected leg injury—advising him not to
stand or walk for more than ten minutes per hour or carry more than five
pounds—since he was unable to receive rides while on restriction and therefore
had to walk 30 minutes or more to meet with his attorney or report for duty
and had to walk to a separate building every two to three hours for “restriction
check-in.”
13 Id. (citations omitted).
14 United States v. Smith, 20 M.J. 528, 531 (A.C.M.R. 1985).
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United States v. Yarberry, NMCCA No. 202100117
Opinion of the Court
After reviewing Appellant’s filings, consistent with our superior court’s
precedent, 15 we ordered responsive affidavits from his TDC, both of whom cat-
egorically deny Appellant’s account of events. They state that they spoke with
Appellant about the nature of his pretrial restriction and explained the issue
of illegal pretrial restriction along with options to seek confinement credit, and
that Appellant wanted to attain the principal benefit of the plea agreement—
referral to a special court-martial—rather than seek confinement credit at a
contested court-martial. They also state that Appellant did not have an escort
when visiting the TDC’s offices or meeting with them outside his barracks
building; was allowed to accept car rides, often drove with friends to his legal
appointments, and never walked to the TDC’s offices; was free to eat in the
mess hall or to get takeout food, which he often did; was not prohibited from
seeing his fiancée, whose only impediment to seeing him was that she lacked
base access; and was allowed throughout his pretrial restriction to keep his
cellphone, which he used to speak daily with his fiancée.
Since an appellant bears the “burden of establishing the truth of factual
matters relevant to the claim,” 16 we must determine whether a post-trial evi-
dentiary hearing is required to resolve the contradictions between Appellant’s
declaration and the TDC’s affidavits. In United States v. Ginn, our superior
court held that “a post-trial evidentiary hearing . . . is not required in any case
simply because an affidavit is submitted by an appellant. In most instances in
which an appellant files an affidavit in the Court of Criminal Appeals making
a claim such as ineffective assistance of counsel at trial, the authority of the
Court to decide that legal issue without further proceedings should be clear.” 17
The court set forth six principles to guide this determination:
First, if the facts alleged in the affidavit allege an error that
would not result in relief even if any factual dispute were re-
solved in appellant’s favor, the claim may be rejected on that ba-
sis.
Second, if the affidavit does not set forth specific facts but
consists instead of speculative or conclusory observations, the
claim may be rejected on that basis.
15 See United States v. Lewis, 42 M.J. 1, 5-6 (C.A.A.F. 1995); United States v. Mel-
son, 66 M.J. 346 (C.A.A.F. 2008).
16 Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008), aff'd, 556 U.S. 904,
(2009).
17 United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).
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United States v. Yarberry, NMCCA No. 202100117
Opinion of the Court
Third, 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.
Fourth, if the 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 may dis-
count those factual assertions and decide the legal issue.
Fifth, when 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 in-
quiry 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.
Sixth, the Court of Criminal Appeals is required to order a
factfinding hearing only when the above-stated circumstances
are not met. In such circumstances the court must remand the
case to the trial level for a DuBay proceeding. During appellate
review of the DuBay proceeding, the court may exercise its Arti-
cle 66 factfinding power and decide the legal issue. 18
Based on the first, second, fourth, and fifth factors, we see no need to order
further fact-finding proceedings. 19 Appellant’s factual assertions regarding the
conditions of his pretrial restriction fall into two broad categories: (1) those
that we reject as “speculative and conclusory observations” or because the rec-
ord as a whole contradicts them or compellingly demonstrates their improba-
bility, and (2) those that, even if true, fail to show a reasonable probability that
18 Id.19 We remain mindful that we are not authorized “to decide disputed questions of
fact pertaining to post-trial claims of ineffective assistance of counsel, solely or in part
on the basis of conflicting affidavits submitted by the parties.” Id. at 243. While we
provided as background a summary of TDC’s affidavits, we do not rely on the infor-
mation contained therein, and decide the issue presented based solely on the record of
trial and the information in Appellant’s declaration, consistent with the principles
enunciated in Ginn, supra.7
United States v. Yarberry, NMCCA No. 202100117
Opinion of the Court
a motion for Mason credit would have been successful. We discuss each of these
two categories in turn.
1. Factual assertions we reject
a. Visitors
Appellant alleges that he “was told that no visitor requests would be ap-
proved,” but provides little detail and no answer to important questions. Who
told him? His commanding officer? The barracks non-commissioned officer
[NCO]? Another restricted Marine? Was he told orally or in writing, formally
or informally? Did he actually submit a visitor request that was denied? Ap-
pellant bears the burden to establish necessary facts, and because we will not
guess at the answers to these obvious questions, we reject this factual assertion
as speculative and conclusory.
b. Civilian Belongings
Appellant complains that he did not have any of his civilian clothes or per-
sonal belongings during his time on restriction because he was not authorized
deliveries at the restriction barracks. An off-base resident, Appellant was or-
dered into pretrial restraint while on base, so it makes sense that he did not
have any civilian property when restraint began. However, there is no require-
ment for a command to delay imposition of lawful pretrial restraint to afford
an accused time to visit his off-base residence to collect personal belongings,
and there are various good and cogent reasons to prohibit a pretrial restrictee
from leaving base. The pertinent questions, then, are: (1) Did Appellant re-
quest permission to visit his off-base residence to retrieve any of his personal
belongings (perhaps with an escort)? (2) If so, did the command grant or deny
the request? (3) If the command denied the request, did the command do so
reasonably? Appellant does not address, much less answer, any of these ques-
tions. Accordingly, here again, we reject this observation as speculative and
conclusory.
c. Meal Card
Again owing to his off-base residence, Appellant states that he lacked a
meal card and therefore did not use the mess hall for meals during restriction
and had to arrange for fellow Marines to bring him meals to eat in the barracks.
Once more, Appellant’s cursory complaint raises more questions than it an-
swers. Did Appellant request a meal card? If so, what, if any, action did the
command take? Did Appellant even want a meal card? Because Appellant does
not tell us the answers to these pertinent questions, and we will not guess, we
reject this observation as speculative and conclusory.
8
United States v. Yarberry, NMCCA No. 202100117
Opinion of the Court
d. Appellant’s prohibition from accepting rides despite his leg injury
Appellant complains that he was restricted from accepting rides, thus fre-
quently forcing him to exceed medical guidance not to stand or walk for more
than ten minutes per hour due to his leg injury.
Appellant said nothing about this issue at trial despite spending almost the
entirety of his oral unsworn statement discussing his leg injury. Submitted in
question and answer format with TDC’s assistance, Appellant’s oral statement
provided a detailed account of his injury’s impact on his quality of life. He de-
scribed being hampered in doing things with his wife, 20 playing sports, carry-
ing groceries, and going camping. He recounted medical guidance against his
standing for more than 10 minutes per hour. However, he said nothing about
this injury in the context of his pretrial restriction or any alleged command
mistreatment.
Appellant also submitted a written unsworn statement. This, too, was si-
lent regarding his pretrial restriction, although it did include a litany of griev-
ances against his command (all unrelated to pretrial restriction). Appellant
lamented his command’s failure to support his medical treatment needs and
recounted being subjected to grossly inappropriate comments from various
NCOs concerning his injury. But these complaints all involved events that oc-
curred prior to pretrial restriction. Appellant said nothing about being forbid-
den from accepting rides or being forced to walk excessively contrary to medical
advice.
What is clear from Appellant’ sentencing case is that TDC and Appellant
agreed that Appellant’s leg injury constituted significant mitigating evidence,
and their strategy included blunt criticism of the command’s alleged mishan-
dling of Appellant’s medical issues. Yet, despite the perfect capstone to such
an argument—command indifference to Appellant’s medical needs during his
pretrial restriction—Appellant did not address these issues in this context in
either of two unsworn statements. Nor is Appellant’s silence explained by any
alleged failure by TDC to inform him about or seek Mason credit. Notwith-
standing TDC’s alleged deficiency, Appellant had no problem highlighting the
mitigating character of his injury-related issues as they existed prior to pretrial
restriction, but made no mention of the purported prohibition against accepting
rides during pretrial restriction.
20 Appellant refers to his “wife” in his unsworn statement but discusses his “fian-
cée” in his post-trial declaration. The record does not explain this discrepancy.
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United States v. Yarberry, NMCCA No. 202100117
Opinion of the Court
2. Factual assertions that, even if true, fail to establish a reasonable proba-
bility that a motion for Mason credit would have been successful.
Appellant asserts he was limited primarily to his restriction room, could
not leave his barracks building without an escort, and was prohibited outright
from leaving the base. However, Appellant was not restricted to his building
during duty hours. His own declaration claims that he was often required to
walk 30 minutes or more to meet with his attorney or report for duty. It follows
that if Appellant often walked 30 minutes to report for duty or attend attorney
meetings, he necessarily left his building and trekked throughout the base.
Appellant also visited Base Medical at least five times and managed to sched-
ule a surgical procedure for the week after trial. 21
Further, Appellant alleges no prohibition on his use of base religious, edu-
cational, or recreational facilities. He alleges neither withholding of his tele-
phone privileges nor seizure of his personal cellphone. He alleges no require-
ment to perform fatigue or other non-routine military duties, nor does he allege
the presence of any armed guards. Finally, Appellant alleges nothing unusual
or inadequate about the barracks building, or his “restriction room” in it, and
acknowledges there were no muster requirements between 2145 and 0600, al-
lowing for more than eight hours of uninterrupted sleep in an ordinary military
sleeping environment.
Such conditions do not sit close enough to the confinement end of the re-
straint spectrum to render them tantamount to confinement. In fact, these con-
ditions are generally consistent with the manner in which pretrial restriction
is implemented throughout the Naval service, and our comparison of these con-
ditions to those in other cases strengthens our determination that the condi-
tions at issue are not tantamount to confinement. 22 Nor does Appellant assert
21 Def. Ex. F; R. at 109.
22 See King, 58 M.J. at 111-12 (holding restriction to dormitory, dining facility,
squadron building, and defense counsel’s office, reassignment to cleaning and manual
labor duties, requirement to muster twice per day, and inability to use the gym not
tantamount to confinement); United States v. Guerrero, 28 M.J. 223, 224-25 (C.M.A.
1989) (holding that restriction to quarters, latrine, chapel, mess hall and other places
of duty, escort requirement, and muster “every 30 minutes until normal ‘lights out’”
not tantamount to confinement); United States v. Parker, 75 M.J. 603, 610-11 (N-M Ct.
Crim. App. 2016) (holding restriction to base with permission to visit the Exchange,
gym, on-base food establishments, and other base facilities with an escort, requirement
to muster every two hours during the day, prohibition against receiving visitors, and
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Opinion of the Court
that he ever sought redress from his commanding officer or assistance from his
counsel regarding these issues, and if he did not, why he did not. All we know
is that he omitted any reference to pretrial restriction during trial. We can
discern no rational explanation for this omission, and Appellant supplies none
now. 23 Viewed in context against the record, particularly vis-à-vis his sentenc-
ing case, we view Appellant’s silence regarding the conditions of his pretrial
restriction as “strong evidence” that “the restriction was, in fact, not the same
as confinement.” 24
Putting aside the alleged conditions we have rejected, we find the remain-
ing conditions of restriction as described by Appellant (assuming but not de-
ciding their truth) “sufficiently tailored” to prevent future serious misconduct,
“ensure [Appellant’s] presence at trial,” and “maintain good order and disci-
pline in the unit.” 25 We find that Appellant has failed to establish a reasonable
probability of a meritorious motion for Mason credit and therefore find his TDC
were not deficient for failing to file a motion that lacked merit. In so finding,
we have considered the nature and scope of Appellant’s pretrial restriction and
the totality of pertinent conditions.
reassignment to routine administrative functions not tantamount to confine-
ment); United States v. Patterson, No. 201600189, 2017 CCA LEXIS 437, at *23 (N-M
Ct. Crim. App. June 30, 2017) (unpublished) (holding restriction to barracks room, nor-
mal work area, any base chapel on Sundays, infirmary, mess hall, Area Exchange,
barbershop, dry cleaners, and fitness center; regular musters in the uniform of the day
or utilities four times per workday and every two hours between 0700 and 1500, then
at 1800, 2000, and 2145 on weekends and holidays; required notification of the bar-
racks NCO and an NCO escort when leaving the barracks; no operation of a privately-
owned vehicle; and no visitors not tantamount to confinement); United States v. Sulli-
van, No. 200800774 , 2009 CCA Lexis 245 at *17 ((N-M Ct. Crim. App. July 14, 2009)
(unpublished) (holding that restriction to limited area of base and prohibition against
consuming alcohol, wearing civilian clothes, or having visitors was not tantamount to
confinement).
23 Appellant also failed to address the issue of his pretrial restriction in his post-
trial clemency submission to the convening authority.
24 King, 58 M.J. at 114 (citations omitted).
25 Parker, 75 M.J. at 612.
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Opinion of the Court
We further find that TDC were not deficient for negotiating a plea agree-
ment provision that waived all waivable motions. This provision waived noth-
ing more than the “right” to file a losing motion, 26 in exchange for which Ap-
pellant gained a substantial benefit in the form of a promise from the conven-
ing authority to refer the charges to a special court-martial. Appellant avoided
a felony-level trial with significantly greater punitive exposure—16 years of
confinement and a dishonorable discharge—as against the 12 months and bad-
conduct discharge stipulated by the plea deal. The strategic decision to accept
such an obvious benefit in exchange for waiving the right to litigate a motion
that lacked merit is objectively reasonable and, as such, does not constitute
ineffective assistance of counsel. 27
Accordingly, we conclude based on the record before us that Appellant has
failed to sustain his burden to demonstrate his TDC were deficient.
III. CONCLUSION
After careful consideration of the record and the parties’ submissions, we
have determined that the findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights oc-
curred. 28
The findings and sentence are AFFIRMED.
Senior Judge GASTON and Judge HOUTZ concur.
FOR THE COURT:
S. TAYLOR JOHNSTON
Interim Clerk of Court
26 United States v. Nye, No. 201600362, 2018 CCA LEXIS 13, *9 (N-M Ct. Crim.
App. Jan. 18, 2018) (unpublished) (citing United States v. McFadyen, 51 M.J. 289, 290-
91 (C.A.A.F. 1999)) (concluding Mason issues are waived by the plea agreement’s waive
all waivable motions provision). Regarding other unrelated motions, TDC advised the
military judge there were no particular motions the Defense had planned to file but
did not because of the waiver provision. R. at 94.
27 United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012).
28 Articles 59 & 66, Uniform Code of Military Justice, 10 U.S.C. §§ 859, 866.
12