United States v. Cole

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40189
________________________
UNITED STATES
Appellee
v.
Kristopher D. COLE
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 6 March 2023
________________________
Military Judge: Brett A. Landry (arraignment and motions); Mark W.
Milam.
Sentence: Sentence adjudged 15 June 2021 by GCM convened at Davis-
Monthan Air Force Base, Arizona. Sentence entered by military judge
on 19 August 2021: 1 Bad-conduct discharge, confinement for 14 months,
and reduction to E-1.
For Appellant: Major Jenna M. Arroyo, USAF; Major Abhishek S.
Kambli, USAF.
For Appellee: Colonel Naomi P. Dennis, USAF; Lieutenant Colonel
Thomas J. Alford, USAF; Lieutenant Colonel Matthew J. Neil, USAF;
Major John P. Patera, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen
Payne, Esquire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Judge RICHARDSON delivered the opinion of the court, in which Senior
Judge POSCH and Judge CADOTTE joined.
________________________
1This is the date of the military judge’s electronic signature on the entry of judgment.
The date listed on the top of the entry of judgment is “15 June 2021.”
United States v. Cole, No. ACM 40189
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
RICHARDSON, Judge:
A general court-martial comprised of a military judge convicted Appellant,
in accordance with his pleas and pursuant to a plea agreement (PA), of three
specifications involving assault in violation of Article 128, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 928.2 In accordance with the PA, the con-
vening authority withdrew and dismissed with prejudice two specifications of
sexual assault in violation of Article 120, UCMJ, 10 U.S.C. § 920, and four
other specifications in violation of Article 128, UCMJ. The military judge sen-
tenced Appellant to a bad-conduct discharge, 14 months’ confinement, reduc-
tion to the grade of E-1, and a reprimand.3 The convening authority disap-
proved the reprimand and approved the remainder of the sentence adjudged.
On appeal, Appellant raises two assignments of error, claiming: (1) Appel-
lant’s trial defense counsel were ineffective “for at least six reasons,” specifi-
cally when they: (i) failed to request a sanity board under Rule for Courts-Mar-
tial (R.C.M.) 706, (ii) failed to adequately investigate Appellant’s traumatic
brain injury (TBI) for mitigation, (iii) failed to adequately investigate the im-
pact of Appellant’s alcoholism on the charged offenses, (iv) failed to object to
improper evidence and argument presented by trial counsel during presentenc-
ing, (v) presented a short sentencing argument that did not effectively lay out
a case for leniency at sentencing, and (vi) advised Appellant to waive clemency
on an incorrect legal basis;4 and (2) the military judge’s failure to conduct fur-
ther inquiry into Appellant’s TBI made his pleas of guilty improvident.
After receiving Appellant’s assignments of error, the Government’s answer,
and Appellant’s reply, this court specified two issues for the parties to brief: (3)
whether Appellant’s plea of guilty to Specification 2 of Charge II was
2Unless otherwise noted, all references in this opinion to the UCMJ and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019
ed.).
3The plea agreement required the military judge impose a total amount of confinement
between 180 days and 18 months and prohibited the military judge from imposing a
dishonorable discharge.
4Appellant also asserts “the cumulative effect of these errors denied [Appellant] due
process of law and merits reversal.” Having carefully considered issue (1), we find no
relief for cumulative error is warranted under the Fifth Amendment, U.S. CONST.
amend. V, or Sixth Amendment, U.S. CONST. amend. VI. See United States v. Matias,
25 M.J. 356, 361 (C.M.A. 1987).
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United States v. Cole, No. ACM 40189
improvident because the military judge misadvised Appellant of the nature
and elements of the offense, and (4) whether Appellant is entitled to relief be-
cause the military judge misapprehended the offense in Specification 2 of
Charge II for which he sentenced Appellant.
We find no error materially prejudicial to Appellant’s substantial rights,
and we affirm the findings and sentence.
I. BACKGROUND5
At the time of the offenses, Appellant and RL were assigned to the same
squadron at Davis-Monthan Air Force Base, Arizona. All the offenses occurred
at Appellant’s home, which he shared with three Airmen and which RL fre-
quented. RL “liked” Appellant; however, Appellant “did not want a relationship
with her, but said that he would be willing to be sexually intimate with her.”
“[RL] enjoyed grappling, or ‘play wrestling’ with [Appellant].” She would initi-
ate these sessions with Appellant “by annoying him.” If he was “wrestling her
for fun,” he would let her tap out—stop after she tapped him on the arm; other
times, Appellant would not stop and he would “hurt her.”
A. Strangulations
Appellant admitted as fact that he strangled RL “at least five separate
times.” The first two times were around 14 September 2019. RL was teasing
Appellant about taking his car for a drive. Appellant became angry and put RL
in a chokehold from behind until she lost consciousness. During the strangula-
tion, RL felt a burning sensation in her throat and started to panic because she
could not breathe. She asked Appellant to stop multiple times and tried tap-
ping out, but Appellant did not stop. “She thought she was going to die.” When
RL awoke, she found Appellant in a different room. She asked what happened,
and he said, “[Y]ou passed out, so I dropped you to the floor. You woke up like
two minutes later.” About ten minutes later, for no apparent reason Appellant
strangled RL a second time, again using a chokehold and until RL lost con-
sciousness. “After this second strangulation, [RL] asked [Appellant] why he did
that, again. He replied, ‘[J]ust cause.’ Then elaborated, saying, ‘I’m not gonna
do that again cause it can cause serious brain damage.’”
Appellant strangled RL again three or four more times, however, over the
course of four months, each witnessed by one or more Airmen. On one occasion,
Appellant pinned RL to the ground facing him, and used his forearm to
5 Prosecution Exhibit 1, titled “Stipulation of Fact,” contains facts as well as expected
testimony from RL and other witnesses. Unless otherwise noted, information and quo-
tations in this section come from this exhibit and we accept any expected testimony as
fact.
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United States v. Cole, No. ACM 40189
strangle her. After RL’s face turned red, an Airman “ran over to [Appellant]
and pushed on his head to get him to stop strangling [RL].” Another time, a
different Airman, AW, witnessed Appellant use a chokehold to strangle RL.
AW confronted Appellant, who “laughed about strangling [RL].” Witnesses
said when RL “tried to tap out, [Appellant] would not let her go.”
The last charged strangulation was “worse than the others.” While losing
to Appellant’s team in beer pong, RL “was playfully upset” and Appellant got
angry. Appellant put RL in a chokehold like before, but “this time it seemed
like he also lifted her up, so that only the tips of her toes were still touching
the ground.” As stipulated by Appellant, RL thought this strangulation was
more severe than the others:
[RL] felt more pain. Her inability to breathe this time felt like if
a person were to hold their breath and their face feels tight, with
accumulating pressure in their face. She felt a lot of pressure in
her head, and felt like her eyes were going to pop out of her face.
She felt his arm squeezing on her neck and it felt like it was
pulling her neck up, making it longer. This time, she passed out
much quicker than the previous strangulations. [RL] would tes-
tify that in her opinion this strangulation felt worse than the
others because [Appellant] employed not only a manual form of
strangulation, with his forearm, but also a hanging form of
strangulation, by lifting her body weight up, causing additional
pressure to accumulate in her head.
RL regained consciousness, and felt a severe headache, dizzy, and confused.
Appellant told RL that her face turned purple, and she had been foaming at
the mouth and seizing. One Airman, WC, witnessed the strangulation and saw
RL’s face turn purple. Additionally, “at one point that night, [Appellant]
bragged to [WC] that he had strangled [RL] to the point of passing out four to
five times, assuring [WC] that [RL] would be fine that night.” As Appellant
stipulated, “Each time [RL] had an altered state of consciousness or lost con-
sciousness, the risk of irreparable damage to her brain and body increased.”
B. Firearm Incident
Appellant was a self-described “firearms enthusiast;” RL “was not familiar
with firearms.” About a week after the first strangulation, Appellant “handed
[RL] his Kriss Vector rifle to disassemble and reassemble.” RL was struggling
to reassemble the rifle precisely, said she was tired, and “asked if she could
just go to bed.” Appellant became angry. He yelled at RL as she sat on the
couch where she had been reassembling the rifle. Appellant “walked over to
[RL] and held up his 9mm Smith and Wesson pistol [ ] to her temple.” “He
yelled, ‘[D]on’t disrespect me in my own house, you are going to do this. My
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United States v. Cole, No. ACM 40189
house, my rules, you are going to finish it, that’s what I told you to do!’ [RL]
was terrified.” Unbeknownst to RL, Appellant had pulled the firing pin out of
the pistol. Appellant later told one of his roommates “that he pulled the trigger
when he held the pistol to [RL’s] temple.” Appellant told another person that
“he did it to ‘put pressure on [RL] and to make her go faster.’” When AW con-
fronted Appellant about whether he really held up a pistol to RL’s temple, Ap-
pellant “said he did, and said it was funny.”
The weekend after the firearms incident, and between strangulation inci-
dents, Appellant was injured in a dirt-bike accident, discussed infra.
C. Shoulder Incident
In mid-January 2020, Appellant and RL were consensually grappling. After
RL tapped out, “[Appellant] took her arm and elbow and twisted it behind her
back.” Appellant “held [RL’s] arm in a 90-degree bend behind her back and he
was pushing her hand into her own shoulder blade, moving her arm further
upwards.” The incident was “excruciatingly painful” for RL. AW was present
and heard RL’s shoulder make “popping and cracking noises.” AW “had to jump
in to stop [Appellant].” RL later obtained medical treatment for her shoulder.
Before this incident, Appellant knew RL had a prior shoulder injury.
II. DISCUSSION
A. Allegations of Ineffective Assistance of Counsel
On appeal, Appellant asserts his trial defense counsel’s performance was
deficient in six ways. Specifically, he alleges his counsel (i) failed to request a
sanity board under R.C.M. 706, (ii) failed to adequately investigate Appellant’s
TBI for mitigation, (iii) failed to adequately investigate the impact of Appel-
lant’s alcoholism on the charged offenses, (iv) failed to object to improper evi-
dence and argument presented by trial counsel during presentencing, (v) pre-
sented a short sentencing argument that did not effectively lay out a case for
leniency at sentencing, and (vi) advised Appellant to waive clemency on an
incorrect legal basis. Appellant submitted a declaration in support of these
claims. Based on Appellant’s allegations, trial defense counsel each submitted
a declaration. We consider the declarations submitted by Appellant and trial
defense counsel in addressing Appellant’s claims. See United States v. Jessie,
79 M.J. 437, 442 (C.A.A.F. 2020). We find Appellant has not overcome the pre-
sumption of competent defense counsel.
We have considered whether a post-trial evidentiary hearing is required to
resolve any factual disputes between Appellant’s assertions and his trial de-
fense counsel’s assertions. See United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967). We
find a hearing unnecessary to resolve Appellant’s claims.
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United States v. Cole, No. ACM 40189
1. Law
The Sixth Amendment6 guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). We
review allegations of ineffective assistance de novo. United States v. Gooch, 69
M.J. 353, 362 (C.A.A.F. 2011) (citing United States v. Mazza, 67 M.J. 470, 474
(C.A.A.F. 2009)). In assessing the effectiveness of counsel, we apply the stand-
ard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin
with the presumption of competence announced in United States v. Cronic, 466
U.S. 648, 658 (1984). See Gilley, 56 M.J. at 124 (citation omitted).
The burden is on the appellant to demonstrate both deficient performance
and prejudice. United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (cita-
tion omitted). “[C]ourts ‘must indulge a strong presumption that counsel’s con-
duct falls within the wide range of reasonable professional assistance.’” Id.(quoting Strickland, 466 U.S. at 689). We consider the following questions to
determine whether the presumption of competence has been overcome: (1) is
there a reasonable explanation for counsel’s actions; (2) did defense counsel’s
level of advocacy fall measurably below the performance ordinarily expected of
fallible lawyers; and (3) if defense counsel were ineffective, is there a reasona-
ble probability that, absent the errors, there would have been a different result.
See Gooch, 69 M.J. at 362 (citing United States v. Polk, 32 M.J. 150, 153 (C.M.A.
1991)); see also United States v. Akbar, 74 M.J. 364, 386 (C.A.A.F. 2015) (ap-
plying same standard for defense counsel’s performance during sentencing pro-
ceedings). When considering the last question, “some conceivable effect on the
outcome” is not enough; instead, an appellant must show a “probability suffi-
cient to undermine confidence in the outcome.” Datavs, 71 M.J. at 424 (internal
quotation marks and citations omitted).
“[O]ur scrutiny of a trial defense counsel’s performance is ‘highly deferen-
tial,’ and we make ‘every effort . . . to eliminate the distorting effects of hind-
sight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate conduct from counsel’s perspective at the time.’” Akbar, 74 M.J. at
379 (omission in original) (quoting Strickland, 466 U.S. at 689). The burden is
on the appellant to identify specific unreasonable errors made by his or her
defense counsel. United States v. Brownfield, 52 M.J. 40, 42 (C.A.A.F. 1999)
(citing Strickland, 466 U.S. at 689). We will not second-guess reasonable stra-
tegic or tactical decisions by trial defense counsel. Mazza, 67 M.J. at 475 (cita-
tion omitted). “Defense counsel do not perform deficiently when they make a
strategic decision to accept a risk or forego a potential benefit, where it is
6 U.S. CONST. amend. VI.
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United States v. Cole, No. ACM 40189
objectively reasonable to do so.” Datavs, 71 M.J. at 424 (citations omitted).
Counsel’s advice to an accused, or counsel’s “strategic” or “tactical” decision
that is unreasonable or based on inadequate investigation, can provide the
foundation for a finding of ineffective assistance. See United States v. Davis,
60 M.J. 469, 474–75 (C.A.A.F. 2005).
2. Additional Background and Analysis
a. Sanity Board, Traumatic Brain Injury, and Alcohol Use
Appellant’s first three contentions are related. Appellant asserts that his
counsel were ineffective by failing to request a sanity board, and failing to ad-
equately investigate and present readily available evidence regarding Appel-
lant’s TBI and alcoholism. At trial, Appellant was represented by a circuit de-
fense counsel, Major (Maj) AB, and another military defense counsel, Maj RC.7
Regarding the sanity board request, Appellant argues the circumstances
surrounding the crimes themselves and his cavalier attitude towards them
were indicators that Appellant “may have been suffering from a mental defect
that caused him not to appreciate the nature and quality or wrongfulness of
his conduct.” In his written declaration, Appellant states,
While preparing for my case, I told my trial defense counsel
about a dirt bike accident I had on 28 September 2019 where I
suffered a head injury and was diagnosed with traumatic brain
injury (TBI). After the accident[,] I did have changes in my mood
to include my temper. Trial defense counsel did not mention an-
ything to me about a sanity board.
Appellant faults his counsel for not requesting copies of his medical and
mental health records, and not presenting those records pertaining to his TBI
to the sentencing authority. Appellant claims that trial counsel characterized
him as: “(1) someone who was arguably proud of what he did to the victim, (2)
someone who wanted the victim to fear for her life, and (3) someone that
twisted the victim’s arm intentionally to hurt her.” He claims “[a] big reason”
trial defense counsel could not counter the Government’s negative characteri-
zation of Appellant in sentencing argument was that “trial defense counsel did
not put in the effort to conduct an investigation to answer the question of what
contributed to [Appellant] committing the charged offenses.” He further argues
that “[t]here was a rational explanation right in front of trial defense counsel
that they simply chose not to investigate.”
Similarly, Appellant presumes that his counsel did not investigate his al-
cohol abuse because they did not present evidence of it. Appellant asserts that
7 Major AB and Major RC were captains at the time of Appellant’s court-martial.
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United States v. Cole, No. ACM 40189
“[t]he alcoholism [he] was facing combined with the circumstances that led to
it provided some of that context and provided answers to the question of why
a star troop with no prior history of violence would suddenly engage in violent
misconduct.”
In his written declaration, Appellant states that if his counsel had asked
for his medical and mental health records, he would have provided them. Also,
he states, “I told my trial defense counsel that I was a heavy drinker and they
were aware that I suffered the dirt bike accident due to riding it while I was
intoxicated.”
The written declarations of Maj AB and Maj RC generally are consistent
with each other on the topics of sanity board, TBI, and alcoholism. Each coun-
sel explained their reasons for not taking the steps Appellant specifies on ap-
peal, and the breadth of their investigation.
In his written declaration, Maj RC stated the defense team discussed the
circumstances of the dirt-bike accident and its effects on Appellant and the
named victim. The defense team included an expert forensic psychiatrist, who
Maj RC noted “was present for [counsel’s] many . . . discussions with [Appel-
lant], including most of them closer to trial.” Maj RC also stated, “Two of the
main topics that were regularly discussed were alcohol use and the TBI.” He
explained their strategy regarding a sanity board:
As a defense team, we did not feel as if [Appellant] did not un-
derstand the nature or wrongfulness of his actions, such that a
sanity board was necessary or required. Furthermore, we
doubted it would be beneficial and worried it could reveal infor-
mation that could be potentially negatively used in rebuttal.
When [Appellant] and his defense team discussed the accident
leading to the brain injury, it felt like a way to avoid personal
responsibility. He would continuously blame others with little
remorse or regret.
Maj AB believed a sanity board was neither warranted nor would prove
helpful. In his declaration, he highlighted that Appellant “acknowledged full
memory and knowledge of his actions” and stated that from their discussions
Maj AB “never felt as if [Appellant] did not understand the nature or wrong-
fulness of his actions, such that a sanity board would prove beneficial.” He
stated their expert forensic psychiatrist shared their concerns that Appellant
was avoiding responsibility for the dirt-bike accident. Moreover, based on his
experience as a senior litigator, Maj AB feared the sanity board report could
“include thoughts on potential malingering [ ] or other misconduct.” He added,
“I find it strategically beneficial to have a client discuss these issues in their
unsworn without getting into the complexity of mental health records.”
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United States v. Cole, No. ACM 40189
Ultimately, Maj AB “did not believe that a sanity board would uncover any
helpful information or lead to a positive outcome based on these discussions”
and believed instead that one “could generate potentially harmful infor-
mation.”
Maj RC described their investigation into the offenses, the effects of the
bike accident, and Appellant’s alcohol use:
Naturally, as part of our investigation we interviewed all rele-
vant witnesses who witnessed firsthand the acts leading to the
dirt bike accident, [Appellant’s] alcohol use, and the actions [ ]
to which [Appellant] pled guilty. Throughout all these inter-
views we did not uncover mitigating evidence about the alcohol
use or TBI that we felt was going to benefit [Appellant] at trial.
The witnesses were consistent that [Appellant] was the same
type of person before and after the accident and that [Appel-
lant’s] actions were intentional decisions to engage in what
amounted to criminal behavior. They also described a general
disdain of the named victim on the part of [Appellant]. He would
make it clear he did not care for her, he only allowed her to hang
around so that he could engage in sexual activities with her, and
he resented her for being there the day he chose to drive the dirt
bike drunk. For the defense team, [Appellant’s] alcohol use and
potential alcoholism was aggravating given the facts in this case.
Maj AB added that none of the nearly dozen witnesses they interviewed “dis-
closed details pertinent to using the TBI or alcohol use in mitigation beyond
how [the defense team] used it” and instead had only aggravating details to
offer. Maj AB also stated that their expert forensic psychiatrist “was present
for [counsel’s] discussions with [Appellant] and did not feel that the TBI was
mitigating or that helpful information would be uncovered by further review
of additional records.”
Maj AB described why the defense team limited the evidence of the alcohol
use and accident leading to the TBI:
We made the intentional decision to not over emphasize the TBI
and accident caused by alcohol. We did not find it particularly
sympathetic that [Appellant] injured himself after making the
decision to drink and drive. We did briefly mention it because
[Appellant’s] facial scarring was significant and we hoped for
some benefit with the military judge given the injury. Addition-
ally, we feared much discussion of this accident would motivate
rebuttal evidence that [Appellant] blamed [RL] for the accident.
Our interview of [RL] revealed that she was placed into an
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United States v. Cole, No. ACM 40189
inpatient mental health facility shortly after this accident for the
PTSD she suffered from witnessing this accident and providing
medical care to [Appellant] while waiting for an ambulance. She
was medically retired due to this PTSD and other issues.
In her unsworn statement to the sentencing authority, RL did not mention
witnessing the accident, any mental health diagnosis, or why she left active
duty.
In his oral unsworn statement to the sentencing authority, Appellant said
the following about the accident:
Please believe me that I am not a bad person. I did make a series
of bad choices. First, I got into a dirt bike accident and mis-
treated [RL]. As to the dirt bike accident, because of my actions,
I was in a coma for nearly a week, suffered a traumatic brain
injury, and had permanent scarring and hearing damage. It is
true that my actions ruined my dreams and career, but they also
subjected my friends to trauma. They had to see me there and
hold my nearly lifeless body. To [RL], I thought about what I said
for some time now, and you are not the cause or reason of my
accident. I am in control of my own body and I got on that bike
that night. I am sorry for that and everything.
We do not agree with Appellant’s allegations that his counsel failed to ade-
quately investigate, or failed to conduct an investigation at all. We find a rea-
sonable explanation for their decisions not to request a sanity board, not to
request Appellant’s mental health and medical records, and not to emphasize
Appellant’s TBI and alcohol abuse.
Counsel provided reasonable explanations for their actions relating to re-
questing a sanity board. Neither Appellant’s counsel nor his expert forensic
psychiatrist observed any indicators that Appellant could not remember, un-
derstand, or appreciate the wrongfulness of his actions. Having interviewed
witnesses to the charged offenses, counsel still saw no indicators that the dirt-
bike accident and resulting TBI affected Appellant’s mental responsibility; in-
stead, they found more aggravating evidence. We decline to adopt a require-
ment for counsel to request mental health records before they can determine
whether a sanity board would be warranted. Appellant has not identified any-
thing in those records that was unknown to his counsel but would have justi-
fied a request for a sanity board. Counsel had justifiable fears that a sanity
board could lead to still more aggravating evidence being uncovered, and rea-
sonably chose not to take the risk.
Similarly, Appellant has not shown that gathering and presenting evidence
of a TBI would have been helpful or resulted in a different result in his case.
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United States v. Cole, No. ACM 40189
Appellant has provided no evidence that his TBI affected mental responsibility.
Appellant’s claimed “changes in [ ] mood to include [his] temper” after the ac-
cident are a far cry from lack of mental responsibility. The records Appellant
submitted with his declaration to this court do not state Appellant had a con-
dition that would cause lack of mental responsibility at the time of the offenses.
The Government did not rebut Appellant’s assertions in his unsworn state-
ment that he “suffered a traumatic brain injury, and had permanent scarring
and hearing damage.” Significantly, we note that Appellant did not assert ei-
ther at trial or on appeal that he believes the dirt-bike accident resulted in any
lack of mental responsibility for his offenses.
We also find reasonable explanations for counsel not gathering and pre-
senting evidence of alcoholism. Appellant argues such evidence would have
been mitigating in that it would explain his poor behavior. Counsel explained
it instead would be seen as an excuse for his poor behavior and could have
revealed his unkind attitude towards RL. Maj AB noted they believed Appel-
lant’s decision to drink and drive was “unsympathetic,” that Appellant blamed
RL for the resulting accident, and that RL witnessing the accident and after-
math caused her psychological harm. Appellant does not identify what evi-
dence of his alcohol abuse and treatment was to be found in his records. The
decision to minimize evidence of Appellant’s alcohol abuse was well within the
strategic discretion of counsel.
As Maj AB stated in his declaration, the defense team’s “strategy was to
accept responsibility and not appear to create excuses or blame something for
[Appellant’s] actions.” We find this was a reasonable strategy in this case. Ap-
pellant has not overcome the presumption of competent defense counsel with
respect to requesting a sanity board, and investigation and presentation of ev-
idence of TBI and alcohol abuse.
b. Evidence in Presentencing
Appellant asserts that trial defense counsel failed to object to two prosecu-
tion exhibits: a memorandum for record (MFR) attached to Appellant’s demo-
tion action, and an affidavit offered to rebut one of Appellant’s character let-
ters.
On appeal, Appellant briefly explains the alleged error regarding the de-
motion-action paperwork:
[P]age 7 of Prosecution Exhibit 5 contains an MFR attached to a
demotion action for [Appellant]. That MFR includes notes taken
during a meeting with [Appellant] and his commander. That
should not have been included in the document since that MFR
is not part of the record of the demotion. However, trial defense
counsel yet again did not object and allowed it into evidence.
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United States v. Cole, No. ACM 40189
In response, the Government highlighted that Appellant provided no legal sup-
port for this argument, and noted it was not aware of any legal support for the
argument.
We find no merit to Appellant’s allegation. Prosecution Exhibit 5 is a form
entitled, “Administrative Demotion of Airmen Memorandum.” Block 5 on the
first page of this form addresses the personal appearance of the Airman before
the commander and the commander’s decision. In Appellant’s case, it reads in
pertinent part, “If applicable, the personal appearance was held on 24 Jan
2020. Additionally, if applicable, I included a summary of the written and/or
oral matters presented, dated 24 Jan 2020, consisting of 2 page(s).” Pages 6
and 7 of Prosecution Exhibit 5 comprise a two-page memo, titled “Memoran-
dum for Record—SrA Cole CC Personal Appearance” and dated 24 January
2020. By its language, it very clearly is the memo referenced in Block 5 of the
form. We see no basis for trial defense counsel to have objected to this part of
the record of Appellant’s administrative demotion action.
Defense Exhibit C is a character letter from Senior Master Sergeant
(SMSgt) ND. He stated he knew Appellant “for approximately 2 years in a pro-
fessional capacity.” He opined Appellant’s “work performance ha[d] been ex-
ceptional.” He noted that “[w]hen [Appellant] was moved to [the unit’s] Support
Section, he immediately made a positive impact.” He ended the letter: “I would
rate [Appellant’s] rehabilitative potential as high. I believe this to be the case
as evident by the personal resiliency he has shown over the course of the last
year along with his superb quality of work which he has continually elevated.”
In rebuttal, the Government offered Prosecution Exhibit 6, an affidavit from a
paralegal who was present when trial counsel interviewed SMSgt ND. The par-
alegal stated SMSgt ND said he did not interact with Appellant in a social
setting, and Appellant did not go over the details of his case with SMSgt ND.
SMSgt ND also said he knew RL, who “was [a]ffected by the alleged offenses
and ‘was not in a great state.’” Paragraph 5 of the paralegal’s affidavit relayed
what SMSgt ND said about the impact the allegation had on the unit:
Additionally, as the assistant superintendent, SMSgt [ND]
stated, “[T]his case has definitely had an impact on good order
and discipline. We have a section with 90 people in it. After a
case like this, we have to do our due diligence. We moved [Ap-
pellant] out of the section and [RL] had to take some time off of
work. Others had to pick up the work load,” or words to that ef-
fect.
Trial defense counsel did not object to admission of the affidavit.
Appellant asserts trial defense counsel should have objected to the affidavit
based on the language in paragraph 5. He argues that portion was not proper
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rebuttal and contained improper aggravation evidence. Regarding the latter,
he states, “The problem is that paragraph 5 of that exhibit highlighted unit
impact due to the fact that [Appellant] had to be moved out of the section and
other people had to pick up his workload.”
Because the affidavit was admitted without objection, we do not know the
Government’s theories of admissibility for the matters contained in para-
graph 5. Moreover, trial defense counsel did not address Appellant’s claim in
their written declarations, so we have no insight into their strategy and tactics.
We do not know whether they thought the affidavit contained improper evi-
dence or was not proper rebuttal but chose not to object, or did not recognize
any potential impropriety at all.
With no explanation for counsel’s actions, we move to the question of
whether trial defense counsel’s advocacy fell measurably below that perfor-
mance ordinarily expected of fallible lawyers. See Gooch, 69 M.J. at 362. Ad-
dressing whether paragraph 5 was a proper matter in rebuttal, the Govern-
ment argues that the “discussion regarding mission impact was proper rebut-
tal evidence since the Defense opened the door to discuss Appellant’s impact
on the workplace environment.” Addressing whether paragraph 5 was im-
proper aggravation evidence, the Government argues “direct mission impact
because of Appellant’s crimes (i.e., the fact he and [ ] RL had been taken out of
the unit due to his misconduct) was fair game under R.C.M. 1001(b)(4), and
Appellant provides no authority holding otherwise.” Appellant did not address
this point in his reply brief.
“[T]he function of rebuttal evidence is to explain, repel, counteract or dis-
prove the evidence introduced by the opposing party,” and its scope is “defined
by evidence introduced by the other party.” United States v. Banks, 36 M.J.
150, 166 (C.M.A. 1992)) (internal quotation marks and citations omitted). In
his character letter, SMSgt ND touched on Appellant’s work performance, in-
cluding before and after he moved to a different duty section, and Appellant’s
resilience and rehabilitative potential. Paragraph 5 of the paralegal’s affidavit
touched on the effect “this case” had on good order and discipline, Appellant’s
move to a different duty section, RL taking time off work, and others “pick[ing]
up the workload.” Paragraph 5 did little if anything to rebut the character let-
ter.
The content in paragraph 5, however, was not improper evidence in aggra-
vation. The affidavit was not clear about what part of “the case” had an “impact
on good order and discipline.” SMSgt ND did not cast blame on Appellant for
the leadership decision to move him to another workplace, and even praised
13
United States v. Cole, No. ACM 40189
Appellant’s performance after the move.8 More so than this move, it appears
SMSgt ND believed RL’s absence from the workplace affected the unit. A vic-
tim’s absence from work due to an accused’s offense is proper evidence in ag-
gravation.9
Assuming trial defense counsel should have identified that paragraph 5
was outside the scope of rebuttal or contained improper aggravation and there-
fore should have objected to Prosecution Exhibit 6, we address whether there
is a reasonable probability that, absent the error, there would have been a dif-
ferent result. We find it highly unlikely this evidence swayed the military judge
to adjudge a harsher sentence. We start with the presumption that the military
judge knew and followed the law. See United States v. Bridges, 66 M.J. 246,
248 (C.A.A.F. 2008) (citations omitted). To the extent paragraph 5 of this ex-
hibit could be construed to contain improper evidence, the military judge would
have disregarded that interpretation. Moreover, paragraph 5 was not particu-
larly inflammatory; “it was what most fact-finders would assume to be the ef-
fect on the unit when a service member is identified as an offender [of another
member of the unit] and removed from the duty section.” United States v. Key,
55 M.J. 537, 539 (A.F. Ct. Crim. App. 2001) (citation omitted). Finally, the Gov-
ernment’s other evidence in aggravation—particularly the stipulation of fact
detailing Appellant’s crimes—was very strong. We find that even if trial de-
fense counsel were ineffective in not objecting to Prosecution Exhibit 6, there
is no reasonable probability that, absent the error, there would have been a
different result.
c. Trial Counsel’s Presentencing Argument
Appellant asserts that trial defense counsel failed to object to improper ar-
gument presented by trial counsel. Appellant specifies two portions: where
trial counsel stated Appellant did not acknowledge the number of times he
strangled RL, and where trial counsel asked the military judge to provide jus-
tice for the victim. Reading these arguments in context, we find no error.
8Indeed, a leadership decision to move an accused or a victim to a different workplace,
and the consequences thereof, are not matters in aggravation when they are not “di-
rectly and immediately resulting from the accused’s offense.” See R.C.M. 1001(b)(4); cf.
United States v. Key, 55 M.J. 537, 538–39 (A.F. Ct. Crim. App. 2001) (finding evidence
showing appellant was moved from the position of trust he used to make fake identifi-
cation cards was a direct result of his crimes and therefore was proper aggravation).
9 Proper matters for consideration on sentence include “the impact of the offense” on
“the financial, social, psychological, or medical well-being of any victim of the offense”
as well as “the mission, discipline, or efficiency of the command of the accused and any
victim of the offense.” R.C.M. 1002(f)(2)(A)–(B).
14
United States v. Cole, No. ACM 40189
Turning first to the stipulation of fact, Appellant agreed he strangled RL
“at least five separate times.” Regarding the details of these incidents, Appel-
lant stipulated to some underlying facts, but more so stipulated to how wit-
nesses would testify about the incidents and Appellant’s statements to them
about strangling RL. When asked by the military judge, Appellant agreed and
admitted the content in the paragraphs of the stipulation of fact were “accu-
rate,” “true,” or both.
In the providence inquiry, Appellant told the military judge he strangled
RL “on one or more occasion[s]” and “[b]oth times it was unlawful” and “[b]oth
times it was done with force.”
In argument on sentence, trial counsel stated:
But 18 months is reasonable because of his lack of remorse and
low rehabilitation potential. He didn’t even acknowledge the
number of times that he strangled her. And this shows his low
rehabilitation potential. A person can’t rehabilitate from some-
thing if he can’t even acknowledge that it happened.
(Emphasis added).
We find this was fair comment on the evidence. While Appellant agreed in
writing that he strangled RL “at least five separate times,” he orally admitted
only two instances to the military judge. Trial counsel highlighted this discrep-
ancy for a lawful purpose: to make argument regarding Appellant’s rehabilita-
tion potential. See R.C.M. 1002(f)(3)(F) (in determining an appropriate sen-
tencing, the court-martial should consider the need for the sentence to rehabil-
itate the accused).
Trial counsel also stated in argument on sentence:
[RL] will have to deal with what he did to her for the rest of her
life. Your sentence can’t undo the harm he caused but your sen-
tence can provide her some justice and can protect society and
other young friends of the accused from future harm at his hands,
at least for 18 months. This sentence needs to teach him that
laying hands on someone in such a violent and repetitive manner
is never an adequate solution for such minor perceived relation-
ship slights.
(Emphasis added). Appellant argues this portion of trial counsel’s argument
“was highly improper because there was no evidence presented that [Appel-
lant] harmed anyone else or that he was a danger to be a recidivist.”
In effect, trial counsel argued for a just sentence and one that would deter
Appellant from repeating his crimes. We find this was fair argument. Trial
counsel may argue for a sentence that will “provide just punishment for the
15
United States v. Cole, No. ACM 40189
offense,” “promote adequate deterrence of misconduct,” and “protect others
from further crimes by the accused.” R.C.M. 1002(f)(3)(C)–(E).
Maj AB “did not find any arguments made by trial counsel to be particu-
larly offensive or harmful when viewed in the totality of the argument.” We
agree, and find Appellant has not met his burden to show trial defense counsel
should have objected to trial counsel’s arguments.
d. Trial Defense Counsel’s Sentencing Argument
Appellant asserts that trial defense counsel put “minimal thought and ef-
fort” into his sentencing argument. Appellant characterizes it as “an anemic
argument” that “provided minimal adequacy on behalf of [Appellant].” Specif-
ically, he states:
Trial defense counsel spent a brief section of the argument giv-
ing a bare bones recitation of [Appellant’s] background and an
incoherent explanation of things [Appellant] had already suf-
fered. There was nothing else—no context or explanation for
what happened, and no mention of the specifics from character
letters and other pieces of evidence that demonstrate why [Ap-
pellant] has rehabilitation potential. And most importantly, no
effort to rebut the extreme caricature of [Appellant] that trial
counsel laid out in its argument.
The written declarations of Appellant’s trial defense counsel on this issue
are generally consistent. They fault Appellant for not providing them more in-
formation from which to present and argue mitigation. Maj AB stated:
The defense sentencing argument was appropriate given the
context and limited sentencing package we had to work with in
this case. [Appellant] was reminded constantly to provide our
paralegal with names of individuals who could provide letters or
testify. Defense counsel stepped in to emphasize the lack of ma-
terial with [Appellant], who appeared to not be concerned with
the state of his mitigation material. The context was important
because the acts were particularly aggravating, given the use of
a firearm. Our strategy was to accept responsibility and not ap-
pear to create excuses or blame something for [Appellant’s] ac-
tions.
In presentencing, the Government presented a summary of Appellant’s per-
sonal data, Appellant’s enlisted performance reports, and a letter of reprimand
and an administrative demotion action relating to the dirt-bike accident. The
Defense presented documents consisting of military and family photos, two
character letters, and Appellant’s written unsworn statement. Appellant also
16
United States v. Cole, No. ACM 40189
delivered an oral unsworn statement. In rebuttal, the Government presented
Prosecution Exhibit 6, the affidavit regarding SMSgt ND discussed supra.
Trial defense counsel’s argument on sentence was concise. The argument
highlighted (1) Appellant’s remorse; (2) Appellant taking responsibility for his
crimes and pleading guilty; (3) Appellant’s age, background, and upbringing;
(4) character letters and enlisted performance reports; (5) other consequences
of Appellant’s actions, including cancellation of his selection for promotion, de-
motion in rank, the TBI, and permanent disfigurement; and (6) the lack of need
for further deterrent measures. He argued against a bad-conduct discharge
and for no more than six months of confinement.
We do not agree with Appellant that trial defense counsel’s sentencing ar-
gument was “incoherent” or “presented next to nothing to warrant leniency
from the military judge.” Appellant has identified no other specific error, only
how the argument could have been improved. We find Appellant has not met
his burden to show that in presenting argument, trial defense counsel’s perfor-
mance was substandard.
e. Advice on Request for Clemency
In his written declaration, Appellant asserts the following:
I waived clemency based on the advice of my trial defense coun-
sel. I was advised that the convening authority was legally
barred from providing me relief. Based on that advice, I waived
my clemency rights. I later found out that the convening author-
ity was not barred from granting clemency on my rank reduc-
tion. If I had known that, I would not have waived clemency and
submitted matters for consideration to include information on
my background along with context for what was going on in my
life at that time.
Appellant does not name the defense counsel who provided him that advice.
In their declarations, Appellant’s trial defense counsel state that Maj RC
advised Appellant of his post-trial rights. Maj RC states:
As to the issue of clemency, the waiver was made with the con-
sultation, consent, and at the direction of [Appellant]. [Appel-
lant] was made fully aware of the limits on the convening au-
thority’s power to grant clemency, including the power to provide
relief on rank reduction. Given the nature of the original
charges, the plea agreement (which the Defense secured primar-
ily through the Victims’ Counsel and was begrudgingly sup-
ported by the Staff Judge Advocate’s office), the sentence, and
the unlikelihood of success in clemency [Appellant] waived his
17
United States v. Cole, No. ACM 40189
right to submit matters for the Convening Authority’s consider-
ation.
Appellant and Maj RC each signed Appellate Exhibit XXIV, a Post-Trial
and Appellate Rights Advisement, on 10 June 2021—five days before Appel-
lant pleaded guilty and was sentenced. Paragraph 14 of the document explains
the limits of the convening authority’s clemency powers. In relevant part, Par-
agraph 14.b states:
Finally, the Convening Authority may reduce, commute, or sus-
pend the following punishments imposed by a court-martial: (1)
total confinement of less than or equal to six months, if the total
sentence to be served is less than or equal to six months; (2) re-
striction; (3) forfeitures and fines; (4) reduction in grade; (5) hard
labor without confinement; and (6) a reprimand. R.C.M. 1109(c).
Above his signature, Maj RC certified that he explained the rights contained
in the Post-Trial and Appellate Rights Advisement to Appellant and fully coun-
seled Appellant “both orally and in writing” concerning the rights and proce-
dures contained therein. Above his signature, Appellant stated, “I have read
and understand my post-trial and appellate rights, as stated above.”
Before the military judge began deliberations on sentence, he ascertained
that Maj RC provided Appellant his post-trial and appellate rights orally and
in writing, “including the rights contained in Rule for Courts-Martial 1010.”
With a copy of Appellate Exhibit XXIV in front of Appellant, both Appellant
and Maj RC affirmed their signatures were on the document. The military
judge then confirmed with Appellant that Maj RC explained his post-trial and
appellate rights to him. He also ascertained that Appellant had no questions
about those rights.
Shortly after the court-martial adjourned, Appellant signed receipt of a
memo signed by a trial counsel titled “Submission of Matters to the Convening
Authority.” This memo advised Appellant, inter alia, as follows:
Since you have been convicted and sentenced by court-martial,
you have the right to submit matters for consideration by the
convening authority of your court-martial before the convening
authority decides what, if any, action the convening authority
will take on your case. The matters you submit may include any
matters that might affect the convening authority’s decision to
approve or disapprove findings of guilt or part of the sentence in
your case as permitted by law.
The memo advised Appellant that he had ten days to submit matters, specifi-
cally providing a deadline of 25 June 2021 at 1600. Appellant acknowledged
receipt of the memo with his signature on 15 June 2021 at 1546—36 minutes
18
United States v. Cole, No. ACM 40189
after the court-martial had adjourned. Appellant also indicated that he waived
his right to submit matters and would not be submitting matters for the con-
vening authority’s consideration.
The requirement for defense counsel’s advisement of an accused’s post-trial
and appellate rights to be addressed on the record is captured in R.C.M. 1010:
[P]rior to adjournment, the military judge shall ensure that de-
fense counsel has informed the accused orally and in writing of:
(a) The right to submit matters to the convening authority to
consider before taking action;
....
(d) The right to the advice and assistance of counsel in the exer-
cise of the foregoing rights or any decision to waive them.
The written advice to the accused concerning post-trial and ap-
pellate rights shall be signed by the accused and defense counsel
and inserted in the record of trial as an appellate exhibit.
Our reading of the Post-Trial and Appellate Rights Advisement and the
Submission of Matters to the Convening Authority memoranda convince us to
reject Appellant’s assertion that he was advised clemency relief was impossi-
ble, and not just improbable. See Ginn, 47 M.J. at 248 (“[I]f 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 [c]ourt may dis-
count those factual assertions and decide the legal issue.”) Appellant acknowl-
edged in writing that he understood the post-trial rights in the memo he and
Maj RC signed, which included the right to submit matters to the convening
authority and the convening authority’s ability to provide relief in sentencing,
including relief on adjudged reduction in grade. Appellant told the military
judge that Maj RC explained to him those rights, both orally and in writing,
and affirmed that he had no questions about those rights.
This inquiry is not an empty ritual. We expect that if Maj RC had advised
Appellant orally that the convening authority was powerless to affect his sen-
tence—contrary to the guidance in Post-Trial and Appellate Rights Advise-
ment—Appellant would ask for clarification when the military judge provided
Appellant that specific opportunity. Appellant did not seek any clarification
about his post-trial rights. Appellant has not met his burden to show that trial
defense counsel’s performance was constitutionally deficient.
19
United States v. Cole, No. ACM 40189
B. Traumatic Brain Injury
Appellant contends that the “military judge erred when he failed to conduct
a further inquiry into the providence of [Appellant’s] guilty plea when [Appel-
lant] stated in his unsworn statement that he suffered from TBI.” We disagree.
1. Law
When an accused pleads guilty and does not assert a defense, “if he sets up
matter raising a possible defense, then the military judge is obligated to make
further inquiry to resolve any apparent ambiguity or inconsistency.” United
States v. Phillippe, 63 M.J. 307, 310 (C.A.A.F. 2006) (citation omitted). Lack of
mental responsibility is an affirmative defense. See United States v. Shaw, 64
M.J. 460, 462 (C.A.A.F. 2007); R.C.M. 916(k)(1).
Once the military judge has accepted a plea as provident and has
entered findings based on it, an appellate court will not reverse
that finding and reject the plea unless it finds a substantial con-
flict between the plea and the accused’s statements or other ev-
idence of record. A “mere possibility” of such a conflict is not a
sufficient basis to overturn the trial results.
Shaw, 64 M.J. at 462 (quoting United States v. Garcia, 44 M.J. 496, 498
(C.A.A.F. 1996)).
In Shaw, the United States Court of Appeals for the Armed Forces (CAAF)
considered whether the appellant’s reference in his unsworn statement to a
psychological condition set up matter raising a possible defense or presented
only a mere possibility of a defense. 64 M.J. at 462. The court found the latter.
It noted that “there was no factual record developed during or after the trial
substantiating [the a]ppellant’s statement or indicating whether and how [the
psychological condition] may have influenced his plea,” and that the appel-
lant’s “conduct during the plea inquiry [did not] raise concerns that might have
suggested to the military judge that [the a]ppellant lacked the capacity to
plead” Id. at 462–63. Additionally, the appellant “ha[d] not asserted, nor [did]
his statement reflect, that he was unable to appreciate the nature and quality
or wrongfulness of his acts as a result of a mental disease or defect.” Id. at 463.
When the matter does not clearly indicate a defense, “the military judge
may reasonably rely on both a presumption that the accused is sane and the
long-standing principle that counsel is presumed to be competent.” Id. at 463
(citing Cronic, 466 U.S. at 658) (additional citation and footnote omitted).
“[W]hen the accused is presenting his sentencing statement through or with
the assistance of counsel, the military judge may properly presume, in the ab-
sence of any indication to the contrary, that counsel has conducted a reasona-
ble investigation into the existence of the defense.” Id.20
United States v. Cole, No. ACM 40189
2. Additional Background and Analysis
In his declaration to this court, Appellant states that he “suffered a head
injury and was diagnosed with traumatic brain injury (TBI)” following an ac-
cident riding his dirt bike while intoxicated. He also states he “eventually re-
ceived treatment for [his] alcohol abuse.” Appellant also highlights Prosecution
Exhibits 4 and 5, which comprise a letter of reprimand and administrative de-
motion action both based on Appellant driving the dirt bike while intoxicated
and without proper protective equipment and training.
Appellant attached to his declaration “four pages from [his] medical and
mental health records” and attested to their authenticity.10 These pages con-
firm Appellant’s accident and injuries to his head. The discharge summary in-
dicates referral to neurosurgery was not necessary. A neurosurgery office note
has a reference to a discharge summary that stated Appellant was “being
transferred to inpatient rehab for further management of his TBI” following
his discharge from the hospital. A neurology office note indicates Appellant
complained of “[s]emi-short term memory.” This note also states Appellant had
experienced “some issues with headaches” brought on with a change in position
and “associated fuzziness;” an issue with his eye that resolved after two weeks;
and “some issues with loss of hearing and tinnitus.”
Appellant has not demonstrated that he had a condition that would consti-
tute a defense involving mental responsibility. He has not provided support for
his contention that a TBI causes—or his TBI caused—partial or full lack of
mental responsibility or “influenced his plea.” See United States v. Falcon, 65
M.J. 386, 392 (C.A.A.F. 2008) (citing Shaw, 64 M.J. at 462).
All indications in the record point to Appellant being fully sane at his court-
martial. Moreover, Appellant had the assistance of two defense counsel, who
themselves had the assistance of an expert forensic psychiatrist. Against this
backdrop, and with the limited information Appellant gave the military judge
in his unsworn statement, the military judge could “properly presume” Appel-
lant’s defense team “conducted a reasonable investigation into the existence of
the defense.” See Shaw, 64 M.J. at 463. We find the military judge did not err
by not reopening the providence inquiry to explore the defense of lack of mental
responsibility.
10 Each of the four pages appears to be the first page of a multi-page entry.
21
United States v. Cole, No. ACM 40189
C. Providence of Guilty Plea to Specification 2 of Charge II
1. Additional Background
On 5 March 2021, the convening authority referred two charges to trial by
general court-martial. Among the referred charges, Specification 2 of Charge
II alleged the following:
In that AIRMAN FIRST CLASS KRISTOPHER D. COLE,
United States Air Force, 355th Aircraft Maintenance Squadron,
Davis-Monthan Air Force Base, Arizona, did within the state of
Arizona, between on or about 1 September 2019 and on or about
28 September 2019, assault [RL] by pointing an unloaded fire-
arm at her head.
Appellant submitted to the convening authority an Offer for Plea Agree-
ment, dated 14 June 2021, which states in pertinent part:
1. I, [Appellant], am presently the accused under court-martial
charges, dated 9 December 2020. I have read the charges and
specifications alleged against me, and they have been explained
to me by my defense counsel, [Maj RC] and [Maj AB]. I under-
stand the Charges and Specifications, and I am aware I have a
legal and moral right to plead not guilty. . . .
....
4. . . . I assert that I am, in fact, guilty of the offenses to which I
am offering to plead guilty, and I understand that this agree-
ment permits the [G]overnment to avoid presentation in court of
sufficient evidence to prove my guilt. . . .
5. In making this offer, I state that:
a. I am satisfied with my defense counsel who have ad-
vised me with respect to this offer and consider them
competent to represent me in this court-martial.
....
d. My counsel fully advised me of the nature of the
charges against me, . . . and I fully understand her [sic]
advice and the meaning, effect, and consequences of this
plea.
Appellant and both his trial defense counsel signed the PA on 13 June 2021.
After Appellant’s signature and before the signatures of his defense counsel is
a statement which includes the following: “I certify I gave the accused the ad-
vice referred to above. I explained to him the elements of the offenses.” The
convening authority approved and accepted the PA on 14 June 2021.
22
United States v. Cole, No. ACM 40189
Appellant’s trial was conducted on 15 June 2021.11 Appellant pleaded guilty in
accordance with the PA, including to Specification 2 of Charge II.
Prosecution Exhibit 1 is a stipulation of fact, dated 15 June 2021, signed by
Appellant, his two trial defense counsel, and the three trial counsel. Under the
heading, “Assault with an Unloaded Firearm (Article 128, UCMJ),” paragraph
25 reads:
On or about 21 September 2019, the Accused pointed an un-
loaded firearm at [RL’s] head, touching her temple. He had no
legal justification or excuse for doing so. He did so with force and
violence. [RL] did not consent to his action.
The military judge read this paragraph to Appellant substantially verbatim.
He asked Appellant if it was “accurate” and whether he “wish[ed] to admit that
it is,” to which Appellant responded, “Yes, Your Honor.”12
In the providence inquiry into Appellant’s plea of guilty, the military judge
advised Appellant as follows:
Let’s move on to Specification 2 of Charge II. That specification
is, again, a violation of Article 128 of the Uniform Code of Mili-
tary Justice. The elements of that offense, which is called assault
consummated by battery, are, one, that between on or about
1 August 2019 and on or about 20 January 2020,[13] within the
state of Arizona, you did assault [RL] by offering to do bodily
harm to her. Two, that you did so by pointing at her with a cer-
tain weapon, to wit, an unloaded firearm. Three, that you in-
tended to do bodily harm and four, that the weapon was a dan-
gerous weapon.
(Emphasis added).
The military judge defined “assault,” “offer to do bodily harm,” “bodily
harm,” and “unlawful”:
An assault is an unlawful offer made with force or violence to do
bodily harm to another, whether or not the offer consummated.
An offer to do bodily harm is an unlawful demonstration of vio-
lence by an intentional act or omission which creates in the mind
11 Arraignment and a motions hearing were held on 1 April 2021.
12The military judge conducted such a colloquy with Appellant on all 37 paragraphs
in the stipulation of fact.
13The charged dates of this offense are between on or about 1 September 2019 and on
or about 28 September 2019. Appellant does not assert error, and we find no prejudice.
23
United States v. Cole, No. ACM 40189
of another, a reasonable apprehension of receiving immediate
bodily harm. . . . Bodily harm means an offensive touching of an-
other, however slight. . . . . And the offer to do bodily harm is
unlawful if done without legal justification or excuse and with-
out the lawful consent of the victim.
....
Firearm means any weapon which is designed to or may be read-
ily converted to expel any projectile by the action of an explosive.
A victim may not lawfully consent to an assault with a danger-
ous weapon. Consent is not a defense to this offense.
The military judge also provided definitions or other instructions on “intent to
do bodily harm” and “dangerous weapon.” Next, the military judge received
Appellant’s acknowledgment that his “plea of guilty admits that these ele-
ments accurately describe what [Appellant] did” and that Appellant “believe[s]
and admit[s] that the elements and definitions taken together correctly de-
scribe what [Appellant] did.”
After the military judge asked Appellant to tell him why he was guilty,
Appellant responded:
Between on or about 1 September 2019 and on or about 28 Sep-
tember 2019, at my off base residence in Tucson, Arizona, my-
self, [RL] and others were cleaning guns together. During the
night, I pointed a firearm at [RL]. This was done unlawfully and
I did not have legal purpose to do so. While the firearm was un-
loaded and had the firing pin removed, which means it could not
have been fired, I was wrong, and it was illegal for me to point a
firearm at her. It was violent because I believe [RL] did not want
me to point the firearm at her and it would have scared her. [RL]
did not consent to me doing this and I apologize for my actions.
(Emphasis added).
The military judge then briefly asked Appellant follow-up questions. First,
the military judge asked Appellant about the location of the offense. He then
asked and Appellant responded whether the firearm was a dangerous weapon
(yes), whether pointing the gun at RL as he did was bodily harm (yes), whether
he had any legal justification or excuse (no), and whether he intended to point
the firearm at RL (yes). The military judge then verified Appellant said the
offense happened in September 2019. Finally, in response to the military
judge’s question, trial counsel and defense counsel each stated they did not
believe any further inquiry was required for this specification.
24
United States v. Cole, No. ACM 40189
The military judge found Appellant’s guilty pleas provident and found Ap-
pellant guilty in accordance with his pleas.
2. Law
“The providence of a plea is based not only on the accused’s understanding
and recitation of the factual history of the crime, but also on an understanding
of how the law relates to those facts.” United States v. Medina, 66 M.J. 21, 26
(C.A.A.F. 2008) (citation omitted). “[A]n accused has a right to know to what
offense and under what legal theory he or she is pleading guilty.” Id.“[W]e review a military judge’s decision to accept a guilty plea for an abuse
of discretion and questions of law arising from the guilty plea de novo.” United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, we apply
the substantial basis test, looking at whether there is something in the record
of trial, with regard to the factual basis or the law, that would raise a substan-
tial question regarding the appellant’s guilty plea.” Id.; see also United States
v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004) (“[I]n evaluating the providency of
a plea, the entire record should be considered.”) An appellant bears the burden
of establishing the military judge abused his discretion in accepting a guilty
plea. United States v. Phillips, 74 M.J. 20, 21–22 (C.A.A.F. 2015).
In order to ensure a provident plea, the military judge must “ac-
curately inform [the a]ppellant of the nature of his offense and
elicit from him a factual basis to support his plea.” “An essential
aspect of informing Appellant of the nature of the offense is a
correct definition of legal concepts. The judge’s failure to do so
may render the plea improvident.” However, “an error in advis-
ing an accused does not always render a guilty plea improvident.
Where the record contains factual circumstances that objectively
support the guilty plea to a more narrowly construed statute or
legal principle, the guilty plea may be accepted.”
United States v. Finch, 73 M.J. 144, 148 (C.A.A.F. 2014) (quoting Negron, 60
M.J. at 141).
In Negron, the CAAF considered the providence of a guilty plea to deposit-
ing obscene materials in the mail where it concluded the military judge pro-
vided the appellant an erroneous definition of “obscene” relating to that of-
fense. Negron, 60 M.J. at 141–42. Compounding the error, the military judge’s
inquiry failed to establish a factual basis for the appellant’s plea, specifically
whether the appellant’s conduct met a correct definition of obscene. Id. at 142.
Moreover, “the military judge almost exclusively resorted to leading ques-
tions,” resulting in the appellant merely “parroting” responses and the military
judge “extract[ing] little relevant factual information” from the appellant. Id.at 142–43.
25
United States v. Cole, No. ACM 40189
In assessing the providence on a guilty plea, we consider an appellant’s
“colloquy with the military judge, as well any inferences that may reasonably
be drawn” from it. United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007) (cita-
tion omitted). Generally, appellate courts accept the parties’ trial-level stipu-
lated facts as true. See United States v. Castro, 81 M.J. 209, 211–12 (C.A.A.F.
2021).
The elements of simple assault in violation of Article 128, UCMJ, are: “(a)
That the accused attempted to do or offered to do bodily harm to a certain per-
son; (b) That the attempt or offer was done unlawfully; and (c) That the attempt
or offer was done with force or violence.” See Manual for Courts-Martial,
United States (2019 ed.) (MCM), pt. IV, ¶ 77.b.(1). The President has author-
ized a higher maximum punishment when a simple assault is committed with
an unloaded firearm. See MCM, pt. IV, ¶ 77.d.(1) (limiting the maximum pun-
ishment for simple assault to confinement for three months, partial forfeitures
for three months, and no punitive discharge; but, when an unloaded firearm is
used, authorizing up to three years in confinement, total forfeitures, and a dis-
honorable discharge).
3. Analysis
Appellant submits that his plea of guilty to Specification 2 of Charge II was
“not knowing, intelligent, and voluntary.” Specifically, he asserts “[h]e could
not have been certain if he was pleading guilty to the charged offense of simple
assault or those erroneously identified by the military judge: assault consum-
mated by a battery or aggravated assault with a dangerous weapon.” The Gov-
ernment asserts that Appellant pleaded guilty to, and was convicted of, simple
assault with an unloaded firearm as alleged in Specification 2 of Charge II. We
find Appellant entered a plea of guilty to simple assault with an unloaded fire-
arm as charged in Specification 2 of Charge II, and the military judge did not
abuse his discretion in accepting Appellant’s guilty plea thereto.
The charge sheet, pretrial agreement, stipulation of fact, and Appellant’s
admission of facts to the military judge under oath convince us Appellant knew
the offense alleged in Specification 2 of Charge II to which he was pleading
guilty. The language of the charge sheet provides notice of a simple assault
with an unloaded firearm. The pretrial agreement was signed before the mili-
tary judge provided Appellant instructions on the elements, and states Appel-
lant’s defense counsel explained the elements of the offenses to him. In the
stipulation of fact, the heading of paragraphs 25–31 is most telling: “Assault
with an Unloaded Firearm (Article 128, UCMJ).” This section indicates that
Appellant was accused of an offer-type assault with an unloaded firearm. For
example, paragraph 29 states, “[RL] did not know that [Appellant] had pulled
the firing pin out of the firearm, and she truly thought he might pull the trigger
and kill her.” In paragraph 25 of the stipulation, Appellant admits he “pointed
26
United States v. Cole, No. ACM 40189
an unloaded firearm at [RL’s] head, touching her temple,” that he “had no legal
justification or excuse for doing so,” and that he “did so with force and violence”
and without RL’s consent.
While the military judge stated two “elements” and definitions14 unrelated
to the offense of simple assault with an unloaded firearm, the military judge
did explain to Appellant the required elements and related definitions. As re-
lates to the first element—that Appellant offered to do bodily harm to a certain
person—the military judge stated, “[O]ne . . . you did assault [RL] by offering
to do bodily harm to her” and also that “[b]odily harm means an offensive
touching of another, however slight.” As relates to the second element—that
the offer was done unlawfully—the military judge stated, “[T]he offer to do
bodily harm is unlawful if done without legal justification or excuse and with-
out the lawful consent of the victim.” As relates to the second element, as well
as the third element—that the offer was done with force or violence—the mili-
tary judge stated “[a]n assault is an unlawful offer made with force or violence
to do bodily harm to another, whether or not the offer consummated” and “[a]n
offer to do bodily harm is an unlawful demonstration of violence by an inten-
tional act or omission which creates in the mind of another, a reasonable ap-
prehension of receiving immediate bodily harm.” As relates to the sentence ag-
gravator—that the simple assault was committed with an unloaded firearm—
the military judge stated, “Two, that you did so by pointing at [RL] with a cer-
tain weapon, to wit, an unloaded firearm.”
Appellant’s providence inquiry established the elements of simple assault
with an unloaded firearm. After the military judge asked Appellant to tell him
why he was guilty, Appellant addressed the accurate elements only. He stated
he “pointed a firearm at [RL];” that he did so “unlawfully,” without a “legal
purpose to do so,” and “it was illegal for [him] to point a firearm at her;” and
“[i]t was violent” because “[RL] did not want [him] to point the firearm at her
and it would have scared her.” Appellant did not explain to the military judge
that he intended to do bodily harm or that the firearm was a dangerous
weapon.15
14The military judge added: “Three, that you intended to do bodily harm and four, that
the weapon was a dangerous weapon.”
15 However, Appellant did agree with the military judge that “the elements and defini-
tions taken together correctly describe[d]” what Appellant did; the unloaded firearm—
“a 9mm Smith and Wesson”—was “a dangerous weapon under the definitions” he pro-
vided; and that Appellant did “intend to point the gun at her.” This “parroting” of the
military judge’s leading questions with a “yes” or “no” answer contributed little to the
factual record. See Negron, 60 M.J. at 143.
27
United States v. Cole, No. ACM 40189
We conclude that the military judge did not abuse his discretion in accept-
ing Appellant’s plea to the charged offense and had no basis for rejecting it. We
reach this conclusion notwithstanding the military judge’s errors in indicating
that Appellant was charged with the offense of assault consummated by a bat-
tery and in advising and conducting a colloquy on matters that were not part
of the charged offense. The stipulated facts plus the providence inquiry suffi-
ciently established a factual basis for Appellant’s plea. Appellant has not met
his burden to show a substantial basis to question his plea to Specification 2 of
Charge II. See Phillips, 74 M.J. at 21–22.
D. Sentencing
We next consider whether the military judge misapprehended the offense
in Specification 2 of Charge II for which he sentenced Appellant and, if so,
whether Appellant is entitled to relief. Appellant suggests “[t]he fact that the
military judge had [Appellant] establish some of the elements of the wrong
crime not only call[s] into question which crime [Appellant] was sentenced for
but whether the military judge unfairly increased the aggravating nature of
the charged offense.”
1. Law
The sentencing authority must consider, among other things, “the nature
and circumstances of the offense.” Article 56(c)(1)(A), UCMJ, 10 U.S.C.
§ 856(c)(1)(A); R.C.M. 1002(f)(1). If the sentencing authority misapprehended
the nature and circumstances of the offense, including erroneous consideration
of aggravating factors, we ask whether the error “substantially influence[d]
[the a]ppellant’s adjudged sentence.” United States v. Edwards, 82 M.J. 239,
247 (C.A.A.F. 2022) (citations omitted).
The maximum period of confinement for simple assault with an unloaded
firearm is three years. See MCM, pt. IV, ¶ 77.d.(1)(b). The maximum period of
confinement for aggravated assault with a dangerous weapon is eight years.
See MCM, pt. IV, ¶ 77.d.(3)(a).
2. Additional Background and Analysis
The Government asserts the military judge understood the nature of the
offense and, even if he did not, Appellant suffered no prejudice. Appellant as-
serts he “was certainly prejudiced at the sentencing phase of his court-martial
because of the military judge’s errors since the elements of aggravated assault
with a deadly weapon include aggravating factors such as a dangerous weapon
and intent to cause bodily harm.” We find no prejudice.
The record does not indicate that the military judge considered extra ag-
gravating factors during sentencing. The military judge was well aware that
the firearm Appellant used was unloaded and therefore could not be used to
28
United States v. Cole, No. ACM 40189
inflict death or grievous bodily harm on RL, as demonstrated in this portion of
the providence inquiry:
[Military Judge]: [T]he unloaded firearm, it was a 9mm Smith
and Wesson, I believe in the stipulation of fact, it stated, and I
wanted to ask you if you consider that a dangerous weapon un-
der the definitions I have given you?
[Appellant]: Yes, Your Honor.
[Military Judge]: Do you believe that you had any legal justifica-
tion or excuse for pointing the gun at [RL]?
[Appellant]: No, Your Honor.
(Emphasis added).
Contrary to Appellant’s assertion on appeal, the military judge did not ask
Appellant during the providence inquiry whether he intended to cause bodily
harm:
[Military Judge]: Would you agree that pointing the gun at her
and stating what you stated was bodily harm under the defini-
tion I gave you?
[Appellant]: Yes, Your Honor.
[Military Judge]: And my other question is, did you intend to
point the gun at her?
[Appellant]: Yes, Your Honor.
(Emphasis added). The military judge elicited from Appellant that his offer to
do bodily harm to RL was by pointing the firearm at her. These facts were
pertinent to the elements of simple assault with an unloaded firearm.
After he discussed the offenses with Appellant, the military judge asked
trial counsel what they “calculate[d] to be the maximum punishment author-
ized by law in this case based solely on [Appellant’s] guilty plea.” Trial counsel
responded, “Six years and six months,” and trial defense counsel agreed. The
military judge noted this answer did not include any other sentence elements.
He then asked whether “counsel agree[d] that a dishonorable discharge, six
years, six months of confinement, reduction to the lowest enlisted grade and
total forfeitures [were] authorized as the maximum punishment in this case.”
Counsel for both parties agreed.
In sentencing argument, trial counsel did not repeat the military judge’s
errors from the providence inquiry. Trial counsel argued that Appellant relied
on the fact that RL did not know the firearm was unloaded and the firing pin
had been removed when he put it to RL’s head to motivate her to go faster.
29
United States v. Cole, No. ACM 40189
Trial counsel did not argue the firearm was a dangerous weapon, or that Ap-
pellant intended to do bodily harm to RL, or that Appellant committed an ag-
gravated assault.
Likewise, the military judge did not make additional statements that could
be inconsistent with a finding of guilty to simple assault with an unloaded fire-
arm. On the contrary, when ascertaining the maximum punishment based on
the offenses to which Appellant pleaded guilty, the military judge agreed with
counsel that the maximum period of confinement was six years and six months,
well below the maximum period of eight years solely for the offense of aggra-
vated assault. We find that while the military judge made errors during his
providence inquiry with Appellant, such errors did not substantially influence
Appellant’s adjudged sentence.16 The military judge did not impose a sentence
for an offense more serious than Appellant was charged with committing.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
16The statement of trial results and entry of judgment—both signed by the military
judge—correctly record the offense code to be reported to the Defense Incident-Based
Reporting System (DIBRS) as “128-A1” for simple assault with an unloaded forearm.
A DIBRS code is neither a finding nor part of a sentence, see United States v. Lepore,
81 M.J. 759, 762–63 (A.F. Ct. Crim. App. 2021) (en banc), but is instructive on the issue
at hand.
30