United States v. Sergeant ANDREW M. JONES

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant ANDREW M. JONES
United States Army, Appellant
ARMY 20140528
Headquarters, United States Army Maneuver Center of Excellence (trial)
Headquarters, United States Army Military District of Washington (DuBay)
Charles A. Kuhfahl Jr., Military Judge (trial)
S. Charles Neill, Military Judge (DuBay)
Colonel Charles C. Poché, Staff Judge Advocate (trial)
Colonel John P. Carrell, Staff Judge Advocate (DuBay)
For Appellant: Captain Amanda Renée McNeil Williams, JA; Philip D. Cave,
Esquire; J. Thomas Province, Esquire (on brief); Captain Joshua B. Fix, JA; Philip
D. Cave, Esquire; J. Thomas Province, Esquire (on reply brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major Cormac M. Smith, JA; Captain Linda Chavez, JA (on brief).
2 May 2017
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SUMMARY DISPOSITION ON FURTHER REVIEW
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HERRING, Judge:
A general court-martial composed of a military judge sitting alone convicted
appellant, contrary to his pleas, of four specifications of indecent acts with a child
and communicating a threat in violation of Article 134 of the Uniform Code of
Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for three years, and
reduction to the grade of E-1. The convening authority dismissed Specification 8 of
Charge III because it was barred by the statute of limitation and approved only so
much of the sentence as provided for a bad-conduct discharge, confinement for
thirty-six months, and reduction to the grade of E-2.
JONES—ARMY 20140528
On 23 November 2016 this court returned appellant’s record of trial to The
Judge Advocate General for a hearing pursuant to United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967). United States v. Jones, ARMY 20140528
(Army Ct. Crim. App. 23 Nov. 2016) (order). On 2 February 2017, the DuBay
hearing concluded. The military judge made findings of fact and conclusions of law
with respect to whether appellant’s defense counsel were ineffective. (App. Ex.
LXXXIII). We hereby adopt his findings of fact and conclusions of law. We agree
that defense counsel were deficient in failing to: 1) “present evidence about [TB’s]
motives to engineer this prosecution and her repeated statements that she would
makes sure [appellant] was punished;” 2) “conduct a full investigation regarding
[TB] and her motives to fabricate;” and 3) “prepare [appellant] to testify.”
Appellant was found not guilty of nineteen specifications. The five specifications of
which he was found guilty all involved TB’s children. We agree there is a
reasonable probability of a more favorable result had the deficiencies not occurred.
CONCLUSION
For the reasons stated previously, the findings of guilty and the sentence are
set aside. A rehearing may be ordered by the same or a different convening
authority. All right, privileges, and property, of which appellant has been deprived
by virtue of the findings and sentence set aside by this decision, are ordered
restored. See UCMJ arts. 58a(b), 58b(c), 75(a).
Senior Judge CAMPANELLA and Judge PENLAND concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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