United States v. Staff Sergeant THOMAS C. RICHARDS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, SALUSSOLIA, and FLEMING
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant THOMAS C. RICHARDS
United States Army, Appellant
ARMY 20160394
Headquarters, Fort Drum
S. Charles Neill, Military Judge
Major Andrew W. Scott, Acting Staff Judge Advocate (pretrial)
Colonel Peter R. Hayden, Staff Judge Advocate (post-trial)
For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Matthew L. Jalandoni, JA (on brief).
For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Joshua B. Banister, JA (on brief).
21 August 2017
---------------------------------
SUMMARY DISPOSITION
---------------------------------
SALUSSOLIA, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of failing to obey a lawful order, two specifications of rape of a
child, two specifications of aggravated sexual assault of a child, and sexual abuse of
a child, in violation of Articles 92, 120, and 120b, Uniform Code of Military Justice,
10 U.S.C. § 892, 920, 920b (2006 and Supp. IV, 2012) [hereinafter UCMJ]. The
military judge sentenced appellant to a dishonorable discharge, confinement for
thirty-two years, and reduction to the grade of E-1. Pursuant to a pretrial agreement,
the convening authority approved only so much of the adjudged sentence as provided
for a dishonorable discharge, confinement for eighteen years, and reduction to the
grade of E-1.
Appellant’s case is now pending review before this court pursuant to Article
66, UMCJ. Appellant raises one assignment of error, which merits neither discussion
nor relief. Additionally, we find that one matter raised personally by appellant,
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), merits discussion
RICHARDS—ARMY 20160394
but not relief: an allegation of ineffective assistance of counsel against one of his
defense counsel for failing to investigate potentially exculpatory evidence and
threatening appellant into entering a pretrial agreement. This court ordered affidavits
in response to appellant’s allegations of ineffective assistance of counsel. The
government submitted affidavits by both defense counsel Captain (CPT) MC, CPT
DC, and Major (MAJ) JK, the senior defense counsel.
BACKGROUND
Appellant pleaded guilty to penetrating the vulva of CR, his step-daughter,
with his penis and fingers, both on divers occasions. Some incidents occurred
between 7 January 2008 and 11 January 2009, before CR was twelve years of age.
Other incidents occurred between 19 August 2009 and 2 September 2009, after CR
had attained twelve years of age, but had not attained the age of sixteen. Appellant
also pleaded guilty to touching PP’s genitalia with his hand. This incident occurred
between 1 April 2014 and 28 May 2014, before PP was twelve years of age. Lastly,
appellant pleaded guilty to violating a lawful order.
During his colloquy with the military judge, appellant admitted his crimes,
stated he was satisfied with the representation of CPT MC and CPT DC, and agreed
that no one threatened or tried in any way to force him to plead guilty.
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) and United
States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997)).
In this case, there is conflict between the affidavits of CPT MC and appellant
regarding the former’s alleged failure to investigate potentially exculpatory
evidence. Considering this conflict, we look to whether a post-trial evidentiary
hearing is required as a threshold matter. United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997). We conclude an evidentiary hearing is not warranted and that
appellant has not met his burden of establishing ineffective assistance of counsel.
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
2
RICHARDS—ARMY 20160394
legal issue.” Id. Additionally, we are not convinced appellant has “rationally
explain[ed]” the contradiction between statements he made during his guilty plea
and his statements made under penalty of perjury here. Id.Appellant claims CPT MC never contacted witnesses and agencies who had
information on CR and her biological mother. Captain MC, on the other hand, states
he did contact witnesses identified by appellant and that although appellant never
provided him with the names of specific agencies, he made reasonable search efforts
of agencies near Fort Drum, New York that might have possessed information on
CR. We conclude appellant’s factual allegations are without merit because the
record compellingly demonstrates their improbability. The record of trial directly
contradicts the allegation that CPT MC did not contact potential witnesses. One
witness who appellant claims was never contacted, actually provided a statement in
support of the appellant during the pre-sentencing portion of the trial. Moreover,
appellant’s statements at trial were unequivocal regarding his satisfaction with his
defense counsel.
Appellant also claims CPT MC threatened appellant into entering a pretrial
agreement, which CPT MC denies. Appellant’s affidavit is irreconcilable with
statements he made at trial. He clearly verified an understanding of his legal right
to plead not guilty, provided a factual predicate for his guilt, acknowledged that he
voluntarily entered into a pretrial agreement, indicated he did not wish to withdraw
from the pretrial agreement, and agreed he was not threatened or coerced into
pleading guilty and acknowledged satisfaction with his counsel’s advice. We “must
consider these admissions to determine whether a disputed issue of fact has been
raised which requires that a DuBay hearing be ordered.” Ginn, 47 M.J. at 244.
There was no indication appellant was either threatened or otherwise forced to plead
guilty to the charges and specifications of which he was found guilty.
The record compellingly demonstrates the improbability of the facts alleged in
appellant’s affidavit to this court made under penalty of perjury. Accordingly, we
are convinced appellant has not carried his burden on the first prong of Strickland,
and we do not find his defense counsel were ineffective in their representation of the
appellant.
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
Senior Judge CAMPANELLA and Judge FLEMING concur.
3
RICHARDS—ARMY 20160394
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
4