United States v. Sergeant JASON E. DUNHAM

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, PENLAND, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant JASON E. DUNHAM
United States Army, Appellant
ARMY 20150467
United States Army Combined Arms Support Command
James W. Herring, Jr., Military Judge
Lieutenant Colonel John S. Frost, Staff Judge Advocate
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Christopher D.
Coleman, JA; Captain Katherine L. DePaul, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Captain Tara O’Brien Goble, JA (on brief).
13 February 2017
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SUMMARY DISPOSITION
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PENLAND, Judge:
Where the record and filings in the case compellingly demonstrate appellant
received the benefit of competent and diligent counsel at trial, we reject as
“improbable” his claim to the contrary.
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of aggravated sexual assault of a child, abusive sexual contact
with a child, indecent acts, and sodomy with a child under sixteen years old, in
violation of Articles 120 and 125, Uniform Code of Military Justice, 10 U.S.C. §§
920, 925 (2012 & Supp. I 2012) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for thirty
months, and reduction to the grade of E-1.
We review the case under Article 66, UCMJ. Through appellate defense
counsel, appellant maintains one assigned error–ineffective assistance of counsel
DUNHAM–ARMY 20150467
(IAC)–which merits brief discussion, but no relief. Appellant’s submissions under
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), lack merit.
Appellate defense counsel filed a brief on 22 June 2016, alleging IAC in
particulars mirroring appellant’s 9 June 2016 affidavit, which stated:
Prior to my court-martial, my defense counsel never
discussed our sentencing strategy with me. We never
discussed the purpose or importance of giving an unsworn
statement, nor did my defense counsel explain that I could
have witnesses testify about my good duty performance
during the presentencing proceedings. The only time we
discussed an unsworn statement was after the verdict was
issued and my defense counsel told me that I could give
one. He did not encourage me to give one, and again,
never explained its purpose. As such, I elected not to give
an unsworn statement because I was not prepared to speak
to the military judge at that point. Had I been prepared or
properly advised, I would have given an unsworn
statement. Further, had I known that I could have had
witnesses testify on my behalf during presentencing
proceedings, I would have asked that several of my former
leaders, including squad leaders and platoon sergeants,
testify on my behalf.
We ordered affidavits from appellant’s civilian and military defense counsel, *
all of whom responded. The affidavits offer a picture of a defense team that
undertook significant efforts to contact, interview and assess potential defense
witnesses. We read accounts of defense counsel who candidly shared these
assessments with appellant. We considered their declarations that they advised
appellant of his rights in defense, extenuation, and mitigation.
Assuming, without deciding, the aforementioned submissions left us with any
doubt regarding the adequacy of appellant’s IAC claim, we note with great interest
two additional documents submitted to us by trial defense counsel: a rights advice
form created by the Defense Counsel Assistance Program, used by counsel in the
field (the form covers, inter alia, appellant’s rights in defense, extenuation, and
mitigation, to include calling witnesses); and, a case-specific memorandum
documenting appellant’s understanding of his right to make an unsworn statement
during sentencing and his decision not to do so. Comparing appellant’s signature on
the affidavit that prompted this post-trial scrutiny with the ones on these two
*
Over the course of his case at the trial level, appellant was represented by three
military defense counsel and one civilian defense counsel.
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DUNHAM–ARMY 20150467
subsequently filed documents, the signatures appear to be his. Indeed, he has not
challenged them.
Appellant filed no reply to the government’s appellate brief, nor did he
oppose its motion to attach the documents summarized above.
Assuming, without deciding, appellant’s affidavit is factually adequate, we
conclude a post-trial evidentiary hearing is not required, because “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
legal issue.” United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997) (internal
quotations omitted). Bearing in mind the law governing appellant’s inalienable
Constitutional and codal rights to counsel, we further conclude he received the full
protections thereof in the trial of his case. See United States v. Strickland, 466 U.S.
668 (1984); United States v. Gooch, 69 M.J. 353 (C.A.A.F. 2011); United States v.
Aguigui, ARMY 20140260, 2016 CCA LEXIS 669 (Army Ct. Crim. App. 18 Nov.
2016).
Finally we note that, with appellant’s affidavit alleging IAC, the appellate
defense team had authority to request and obtain trial defense counsel’s case file
under United States v. Dorman, 58 M.J. 295, 298 (C.A.A.F. 2003). We do not
speculate whether they deemed such access and review necessary in the exercise of
due diligence, nor do we suggest it is mandatory for an appellate defense counsel to
do so before submitting an appellant’s affidavit to government authorities in
furtherance of an appeal. However, given their opportunity to previously review
documents that so “compellingly demonstrate the improbability” of appellant’s
claim, we are left to wonder why counsel assigned this matter as error. Furthermore,
doing so could have prevented the appellate defense team from inadvertently
advising appellant to make what may be a false official statement in violation of
Article 107, UCMJ.
CONCLUSION
The findings and sentence are AFFIRMED.
Senior Judge CAMPANELLA and Judge BURTON concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES, JR.
SQUIRES JR.
Clerk
Clerk of
of Court
Court
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