United States v. Private E1 BLAINE J. FRANKLIN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 BLAINE J. FRANKLIN
United States Army, Appellant
ARMY 20100861
Headquarters, 25th Infantry Division
Kwasi L. Hawks, Military Judge
Lieutenant Colonel George A. Smawley, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain
Barbara A. Snow-Martone, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Bradley M. Endicott, JA (on brief).
31 January 2013
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SUMMARY DISPOSITION
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Per Curiam:
An enlisted panel, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of one specification of making a false official statement, one
specification of robbery, two specifications of assault consummated by a battery,
and one specification of burglary, in violation of Articles 107, 122, 128 and 129,
Uniform Code of Military Justice, 10 U.S.C. §§ 907, 922, 928, 929 (2006)
[hereinafter UCMJ]. Consistent with his pleas, appellant was acquitted of
conspiracy to commit robbery and burglary, in violation of Article 81, UCMJ. The
panel sentenced appellant to a bad-conduct discharge, to perform hard labor without
confinement for ninety days, and forfeiture of $1000.00 pay per month for three
months. The convening authority (CA) approved the adjudged sentence, but
suspended the execution of the bad-conduct discharge for one year. 1
1
The military judge credited appellant with two days confinement credit against the
approved sentence, but in his action the CA erroneously failed to order that credit in
(continued . . .)
FRANKLIN—ARMY 20100861
This case is before us for review under Article 66, UCMJ. Appellate defense
counsel raises five assignments of error. 2 Two of these assignments warrant
(. . . continued)
the action. While this credit should have been reflected in the action, appellant has
not alleged any prejudice by the omission.
2
Appellate defense counsel alleges the following assignments of error:
I.
PRIVATE FRANKLIN’S CONVICTION OF CHARGE III
(ROBBERY) IS FACTUALLY AND LEGALLY
INSUFFICIENT AND, THEREFORE, MUST BE SET
ASIDE
II
PRIVATE FRANKLIN’S CONVICTION OF
SPECIFICATIONS 1 AND 2 OF CHARGE IV (ASSAULT
CONSUMMATED BY A BATTERY) IS FACTUALLY
AND LEGALLY INSUFFICIENT AND, THEREFORE,
MUST BE SET ASIDE.
III.
PRIVATE FRANKLIN’S CONVICTION OF CHARGE V
(BURGLARY) IS FACTUALLY AND LEGALLY
INSUFFICIENT AND, THEREFORE, MUST BE SET
ASIDE.
IV.
PRIVATE FRANKLIN WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL WHEN TRIAL DEFENSE
COUNSEL FAILED TO CONTACT HIM TO DISCUSS
HIS PERSONAL CLEMENCY MATTERS AND TO GET
THOSE PERSONAL CLEMENCY MATTERS TO THE
CONVENING AUTHORITY FOR HIS
CONSIDERATION.
V.
THE MILITARY JUDGE COMMITTED PLAIN ERROR
WHEN HE FAILED TO FIND THE SPECIFICATION OF
(continued . . .)
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FRANKLIN—ARMY 20100861
discussion and one warrants relief. Appellant personally raises additional matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One of these
matters is partially covered as an assignment of error and will be addressed at the
same time the assignment of error is addressed.
LAW AND DISCUSSION
Multiplicity
As argued by appellant at both trial and on appeal, the assault and battery
charge and specifications are lesser included offenses of the robbery charge. In the
instant case, the assaults alleged in Charge IV were the force used to accomplish the
robbery alleged in Charge III. As a matter of “long-standing law,” the assaults are
therefore considered multiplicious with the robbery charge. United States v.
McMillian, 33 M.J. 257, 259 (C.M.A. 1991). The government concedes both
specifications of Charge IV, assault consummated by a battery, were multiplicious
with Charge III, robbery. We agree and accordingly accept the government’s
concession. 3 We will take appropriate action in our decretal paragraph to address
this error, but our analysis also must address whether appellant suffered any
additional prejudice as a result of this error.
The military judge denied appellant’s multiplicity motion during the merits
portion of the court-martial, but then merged these two charges into one charge for
sentencing purposes. 4 Because the military judge merged the charges for sentencing
and properly re-calculated the maximum punishment, the sentencing landscape has
not changed and no sentence relief is warranted. Id.(. . . continued)
CHARGE III MULTIPLICIOUS WITH SPECIFICATIONS
1 AND 2 OF CHARGE IV.
3
Dismissing Charge IV and its Specifications moots the additional issue of the panel
not returning separate findings of guilty for each specification, but merely returning
a guilty verdict for the charge.
4
As part of his sentencing instruction, the military judge made the following
statement: “[t]he offenses charged in Charge III and Charge IV are on[e] for
sentencing purposes, in other words, the assaults which were necessary to conduct
the robbery have been merged into the robbery. Therefore, in determin[ing] the
appropriate sentence in this case please considered [sic] them as one offense.”
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FRANKLIN—ARMY 20100861
Ineffective Assistance of Counsel
Appellate defense counsel and appellant, pursuant to Grostefon, allege two of
his trial defense counsel (Captain [CPT] EP represented appellant during pre-trial
and trial and CPT JP represented appellant during post-trial) provided ineffective
assistance of counsel. Specifically, they claim CPT JP provided ineffective
assistance to appellant when she allegedly failed to contact appellant to discuss
clemency matters and, as a result, appellant was denied an opportunity to submit a
personal letter and a letter from his father to the CA. Appellate defense counsel, in
an assignment of error, alleges appellant was prejudiced by CPT JP’s failure to
submit a request to the CA to defer adjudged forfeitures. Counsel argues this failure
was contrary to appellant’s expressed desire at the time of trial, as evidenced by his
post-trial appellate rights advisement form, to seek this deferral.
Appellant, in matters personally raised before this court, further alleges CPT
EP provided ineffective assistance at trial through his poor witness questioning,
failure to object to a duress instruction, and failure to introduce letters appellant had
collected, to include the previously mentioned letter from appellant’s father, during
pre-sentencing.
In evaluating ineffective assistance of counsel allegations, we apply the
standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). This
standard requires appellant to demonstrate: (1) that counsel’s performance was
deficient, and (2) that this deficient performance prejudiced appellant. Id. at 687.
In examining the first part of this test, appellant must show “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. The relevant issue is whether counsel’s conduct
failed to meet an objective standard of reasonableness or whether it was outside the
“wide range of professionally competent assistance.” Id. at 694. “On appellate
review, there is a ‘strong presumption’ that counsel was competent.” United States
v. Grigoruk, 56 M.J. 304, 306-07 (C.A.A.F. 2002) (citing Strickland, 466 U.S. at
689). The second part of the test is met by showing 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.
Beginning with the post-trial allegations of ineffective assistance of counsel
leveled against CPT JP, it must first be highlighted that CPT JP successfully
persuaded the convening authority to suspend execution of appellant’s bad-conduct
discharge. This was achieved despite appellant’s and CPT EP’s request for a bad-
conduct discharge at trial.
Assuming CPT JP did not contact appellant following his court-martial, we
find appellant was not prejudiced by the absence of his letter and his father’s letter
in the post-trial submission. In his memorandum to the CA, CPT JP did highlight
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FRANKLIN—ARMY 20100861
the points appellant wanted to present in his letter and appellant subsequently
received meaningful relief.
In regards to his father’s letter, although failing to include a copy of this
letter as part of his post-trial affidavit, appellant offers insight into the gist of this
letter in his Grostefon matters. Although accusing his counsel of ineffectiveness
during pre-sentencing for not introducing this letter, appellant acknowledges this
letter detailed an altercation that involved appellant when he was twelve. However,
appellant believes that because this letter also emphasized how appellant is a
“peaceful person,” it was possible the panel would not have adjudged a bad-conduct
discharge. It was clearly a reasonable tactical decision not to offer this letter
during pre-sentencing. See United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F.
2009). To the extent appellant argues the impact of this letter would have been to
persuade the panel to not adjudge a punitive discharge, CPT JP efforts accomplished
the same effect without submitting this letter and appellant therefore suffered no
prejudice.
In reference to post-trial matters, appellant’s counsel has further alleged CPT
JP was ineffective because she failed to request deferment of appellant’s adjudged
forfeitures until action. On his appellate rights form, appellant indicated he wanted
to request deferment of automatic and adjudged forfeitures. However, significantly,
in an affidavit submitted for the specific purpose of detailing his post-trial
complaints, appellant fails to mention this issue. Neither appellant, nor counsel, has
articulated what benefits appellant would have enjoyed as a result of incurring
forfeitures at the time of action instead of fourteen days after sentencing. Failing to
find prejudice, we fail to find CPT JP was ineffective.
Turning to appellant’s allegations that CPT EP was ineffective during trial, he
challenges the decisions regarding the duress instruction, examination of a witness,
and the failure to enter his father’s letter, among other letters, as part of the pre-
sentencing case. In rejecting these contentions, we find that appellant has failed to
rebut the strong presumption that CPT EP was competent and, in applying the first
part of the Strickland test, we find appellant has failed to demonstrate counsel’s
performance was deficient. Grigoruk, 56 M.J. 304, 306-07 (C.A.A.F. 2001) (citing
Strickland, 466 U.S. at 689). We therefore further find appellant’s claim of
ineffective assistance of counsel lacks merit.
Finally, we turn our attention to an issue not raised by appellant or counsel:
the valuation of the stolen property. Appellant, in the Specification of Charge III,
was charged with stealing, “a television, a video game system, a Dell DLP projector,
3 wireless controllers, a keyboard for gaming system, 2 gaming headsets, a laptop
computer, 10 video games, and 8 DVDs, of a value of about $3,959.00 . . . .”
Pursuant to the panel’s finding, the appellant was convicted of stealing only a video
game system, a Dell DLP projector, a laptop computer, 10 video games and 8 DVDs.
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FRANKLIN—ARMY 20100861
Pursuant to Article 66(c), UCMJ, we are required “to conduct a de novo
review of [the] legal and factual sufficiency of the case.” United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual sufficiency is,
after weighing the evidence in the record of trial and recognizing that the court did
not personally observe the witnesses, whether “[this court is] convinced of the
[appellant’s] guilt beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324, 325 (C.M.A. 1987). The standard of review for legal sufficiency is whether,
considering all the evidence in the light most favorable to the government, a
reasonable fact-finder could have found all the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The only evidence offered by the government to support the value of the
stolen items was the victim’s testimony. He put the value of all items stolen, to
include items not included in the Specification of Charge III, “between $5,000.00
and $10,000.00.” The only specific items against which appellant placed a dollar
amount were the projector, that “was probably worth $400.00 - $500.00” and the
video games, that were “like $50.00 a pop.” Based on a lack of legal or factual
sufficiency, we will therefore only assess this property as having “some value”
instead “of a value of about $3,959.00” and will correct this error in our decretal
paragraph.
CONCLUSION
On consideration of the entire record, including those matters personally
raised by appellant, the findings of guilty of Charge IV and its Specifications,
assault consummated by a battery, are set aside and dismissed. We affirm only so
much of the Specification of Charge III that finds appellant “Did, at or near
Helemano Military Reservation, Hawaii, on or about 11 April 2009, by means of
force steal from the presence of MGM, against his will, a video game system, a Dell
DLP projector, a laptop computer, 10 video games and 8 DVDs, of some value, the
property of MGM.” We affirm the remaining findings of guilty. Reassessing the
sentence on the basis of the errors noted, the entire record, and in accordance with
the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United
States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by
Judge Baker in his concurring opinion in Moffeit, the court affirms the sentence as
approved by the convening authority.
FOR THE COURT:
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of CourtH. SQUIRES, JR.
MALCOLM
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