United States v. Parrish

UNITED STATES, Appellee
v.
Rickie E. PARRISH, Sergeant First Class
U.S. Army, Appellant
No. 07-0079
Crim. App. No. 20020916
United States Court of Appeals for the Armed Forces
Argued October 2, 2007
Decided December 5, 2007
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Richard P. Pizur (argued); Lieutenant
Colonel Steven C. Henricks and Captain Seth A. Director (on
brief); Colonel John T. Phelps II, Colonel Christopher J.
O’Brien, and Captain Fansu Ku.
For Appellee: Captain Mark E. Goodson (argued); Major Tami L.
Dillahunt, Major Elizabeth G. Marotta, and Captain Magdalena A.
Acevedo (on brief).
Military Judge: Denise K. Vowell
This opinion is subject to revision before final publication.
United States v. Parrish, No. 07-0079/AR
Judge ERDMANN delivered the opinion of the court.
Following a guilty plea, Sergeant First Class Rickie E.
Parrish was convicted of sodomy with a child under twelve and
several specifications of indecent acts with the same child. He
was sentenced to fifteen years confinement, a dishonorable
discharge, and reduction to E-1. On appeal to the United States
Army Court of Criminal Appeals, Parrish argued that the
convening authority failed to defer the adjudged reduction in
grade pursuant to a material term of the pretrial agreement, as
that term had been explained to him by his defense attorney.
Relying on the fourth factor in United States v. Ginn, 47 M.J.
236, 243 (C.A.A.F. 1997), the Court of Criminal Appeals denied
relief without ordering an evidentiary hearing on the grounds
that post-trial affidavits, read together and within the context
of the record as a whole, demonstrated the improbability of
Parrish’s assertions. United States v. Parrish, No. ARMY
20020916, slip op. at 10-12 (A. Ct. Crim. App. Oct. 10, 2006).
We undertook review of this case to determine whether the
Court of Criminal Appeals correctly relied on this Ginn factor
to resolve Parrish’s post-trial claim without an evidentiary
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United States v. Parrish, No. 07-0079/AR
hearing.1 We hold that the Court of Criminal Appeals’ decision
to resolve the issue without a post-trial evidentiary hearing
was error.
BACKGROUND
A. The adjudged reduction in Parrish’s grade
At the time of his court-martial, Parrish was a Sergeant
First Class E-7. His adjudged sentence included reduction in
grade to E-1. Under Article 57(a)(1), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 857(a)(1) (2000), an adjudged
reduction in grade takes effect either fourteen days after the
day that sentence is adjudged or the day on which the sentence
is approved by convening authority action, whichever is earlier.
The convening authority approved Parrish’s sentence 165 days
after it was adjudged, so his reduction took effect fourteen
days after sentencing.
On appeal to the Court of Criminal Appeals, Parrish filed
an affidavit asserting that his defense attorney had informed
him that the pretrial agreement provided for a deferral of the
reduction in grade so that his family would receive pay at the
1
The granted issue states:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS PROPERLY
EXERCISED ITS FACTFINDING POWER UNDER ARTICLE 66(C),
UCMJ, IN RESOLVING THE QUESTION OF WHETHER THE
GOVERNMENT VIOLATED A MATERIAL TERM OF APPELLANT’S
PRETRIAL AGREEMENT DESPITE CONFLICTING AFFIDAVITS.
65 M.J. 104, 105 (C.A.A.F. 2007).
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E-7 grade until the convening authority took action. After the
convening authority’s action, he would then receive an
additional six months pay at the E-1 grade. Because the
convening authority’s action did not include deferral of the
reduction in grade, Parrish’s dependants received his pay at the
E-1 grade rather than at the higher E-7 grade for approximately
five months.
Parrish’s pretrial agreement does not provide for a
deferral of reduction in grade but does contain the following
provision related to deferral of forfeitures:
The convening authority agrees to disapprove any
confinement adjudged in excess of FIFTEEN (15)
years. The [c]onvening authority also agrees to
defer any adjudged and statutory forfeitures
until action and to waive statutory forfeitures
for a period of six months at action. Any other
lawfully adjudged punishment may be approved.
At the court-martial the military judge reviewed the pretrial
agreement, including the above-referenced portion, with Parrish,
defense counsel and trial counsel. Parrish, his counsel and
trial counsel each told the military judge the written pretrial
agreement contained all the understandings, promises, and
agreements between the parties, and each affirmatively
disclaimed any unwritten agreements. They also asserted that
the quantum portion of the pretrial agreement correctly
memorialized the convening authority’s promises to Parrish in
exchange for his guilty pleas.
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B. Proceedings before the Court of Criminal Appeals
In Parrish’s affidavit filed with the Court of Criminal
Appeals, he asserted that he was informed by his defense counsel
that deferral of the reduction was accomplished by the following
phrase in the above-referenced provision of the pretrial
agreement: “defer adjudged and statutory forfeiture until
action and then [waive] statutory forfeiture for six months.”2
Parrish also asserted that his wife received the same
explanation from the trial counsel and assistant trial counsel.
Parrish also filed an affidavit from his wife which alleged
that she had been told by the trial counsel that she would
receive her husband’s pay at the E-7 grade. She further alleged
that she had complained to trial counsel and the convening
authority that the checks she received for her husband’s pay
after his sentence was adjudged were not at the E-7 grade.
Parrish also filed a letter from Staff Judge Advocate
Colonel (COL) Mortimer Shea Jr., which was addressed to
Parrish’s wife. Consistent with Parrish’s assertions, the
letter acknowledged that Parrish’s wife should have received her
husband’s pay at the E-7 grade from the date of the court-
martial until the convening authority’s action. Parrish also
filed a follow-up letter from COL Shea’s successor in the Office
2
This assertion, if true, provides a possible explanation as to
why Parrish did not object to the terms of the pretrial
agreement at trial.
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United States v. Parrish, No. 07-0079/AR
of the Staff Judge Advocate that was sent five months later
explaining that COL Shea made a mistake and that the reduction
was not deferred.
Based on the affidavits of Parrish and his wife and the
letter from COL Shea, the Government conceded in its responsive
brief that there was a sub rosa agreement to defer forfeitures
at the E-7 grade. The Court of Criminal Appeals, citing
Parrish’s affidavit as the only document “clearly asserting that
there was a sub rosa agreement,” declined to accept the
Government’s concession without more evidence. United States v.
Parrish, No. ARMY 20020916, slip op. at 2 (A. Ct. Crim. App.
Mar. 17, 2005) (order).
The lower court ordered the filing of additional affidavits
from Government trial counsel, defense trial counsel, and COL
Shea. The court asked the affiants to respond to specific
questions concerning whether he or she made a sub rosa or
unwritten agreement to defer the reduction in grade, whether he
or she knew about any unwritten agreement or knew about any
advice or promises given to Parrish and his wife that reduction
from E-7 to E-1 would be deferred until action. The court also
invited the submission of other evidence or affidavits that
would address the question of whether a sub rosa or unwritten
agreement existed.
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United States v. Parrish, No. 07-0079/AR
The requested affidavits and other documents were filed.
All of the affiants denied knowledge of a sub rosa agreement.
The filings, however, were less consistent as to the intended
content of the pretrial agreement. An e-mail exchange between
Government appellate counsel and trial counsel that took place a
few days before the Government’s initial concession was filed
with the Court of Criminal Appeals. In the e-mails the trial
counsel recalled that deferral of the reduction until action was
part of the pretrial agreement. Trial counsel wrote more
specifically, “Our thinking on the issue was that we wanted to
minimize the impact the reduction to E-1 would have on his
family and his daughter in particular as she was the victim in
this case.” In trial counsel’s subsequent affidavit, however,
he did deny the existence of a sub rosa agreement.
Relying on the pretrial agreement, the providency inquiry,
and the fact that Parrish’s clemency submissions did not
complain about the E-1 grade, the Court of Criminal Appeals
dismissed Parrish’s assertions without ordering an evidentiary
hearing on the grounds that the “affidavits, read together and
within the context of the record as a whole, demonstrate the
improbability of appellant’s claim that an unwritten agreement
existed to defer the reduction in grade until action and was a
material term of the pretrial agreement.” Parrish, No. ARMY
20020916, slip op. at 10-12.
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ANALYSIS
“Article 66(c) does not authorize a Court of Criminal
Appeals to decide disputed questions of material fact pertaining
to a post-trial claim, solely or in part on the basis of
conflicting affidavits submitted by the parties.” United States
v. Fagan, 59 M.J. 238, 241 (C.A.A.F. 2004) (citing Ginn, 47 M.J.
at 243). Rather, the record of trial must be expanded through
an evidentiary hearing conducted in accordance with United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
In Ginn, however, the court set forth a number of factors
under which a post-trial evidentiary hearing would not be
required. 47 M.J. at 248. The fourth Ginn factor precludes the
need for a DuBay hearing when the appellate filings and the
record as a whole “compellingly demonstrate” the improbability
of an appellant’s assertions. Id. Focusing on whether a sub
rosa agreement existed, the Court of Criminal Appeals used the
fourth Ginn factor to resolve the issue without a DuBay hearing.3
3
The six factors articulated in Ginn are as follows:
(1) if the facts alleged in the affidavit allege an error that
would not result in relief even if any factual dispute were
resolved in appellant’s favor, the claim may be rejected on that
basis;
(2) if the affidavit does not set forth specific facts but
consists instead of speculative or conclusory observations, the
claim may be rejected on that basis;
(3) if the affidavit is factually adequate on its face to state
a claim of legal error and the Government either does not
contest the relevant facts or offers an affidavit that expressly
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Whether the Army Court of Criminal Appeals correctly
resolved Parrish’s post-trial claim without a factfinding
hearing is a legal issue that we review de novo. United States
v. Sales, 56 M.J. 255, 258 (C.A.A.F. 2002). We agree with the
Court of Criminal Appeals’ conclusion that the appellate filings
together with the record as a whole compellingly demonstrate the
improbability of a sub rosa agreement. That conclusion,
however, does not address the actual allegation in Parrish’s
affidavit –- that he and his wife had been misinformed by both
defense counsel and trial counsel as to whether the pretrial
agreement deferred the reduction to E-1. This allegation raises
the possibility that Parrish and the Government shared a mutual
misunderstanding as to the terms of the agreement.
Parrish’s affidavit clearly asserts that he and his wife
were misinformed by his attorney and trial counsel as to the
agrees with those facts, the court can proceed to decide the
legal issue on the basis of those uncontroverted facts;
(4) if 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 court may
discount those factual assertions and decide the legal issue;
(5) when an appellate claim contradicts a matter that is within
the record of a guilty plea, an appellate court may decide the
issue on the basis of the appellate file and record, unless the
appellant sets forth facts that would rationally explain why he
would have made such statements at trial but not upon appeal;
(6) the Court of Criminal Appeals is required to order a
factfinding hearing only when the above-stated circumstances are
not met.
United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).
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effect of the pretrial agreement. The affidavit does not assert
that there was a sub rosa or unwritten agreement. Parrish’s
wife’s affidavit asserts that she was misinformed as well and
that she complained to the convening authority and trial counsel
when the checks she received for her husband’s pay after his
sentence was adjudged were not at the E-7 grade –- providing
support for Parrish’s assertion that they had been informed that
the reduction would be deferred.
The e-mail exchange between the trial counsel and
Government appellate counsel together with trial counsel’s
subsequent affidavit reflect that the trial counsel believed at
some point that the pretrial agreement provided for a deferral
of the reduction. In the e-mail exchange, trial counsel
indicated that deferral of reduction was included to minimize
the impact that reduction would have on Parrish’s daughter, the
victim in the case. His subsequent affidavit states in part:
I don’t recall a specific conversation, but I may have
told [Parrish’s wife] that [Parrish] would continue to
receive E-7 pay for as long as possible. I say that
because that is my recollection of what the agreement
was to have said, and if we discussed issues of
reductions in pay, given that English was not her
first language, that would have been how I would have
phrased it.
The letter from COL Shea shows that he too was initially
under the impression that Parrish’s pay would continue at the E-
7 grade until the convening authority’s action. There is also
an affidavit from the assistant trial counsel indicating that
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after court-martial, Parrish’s wife made a significant number of
calls to the Office of the Staff Judge Advocate. Although
assistant trial counsel states that she forwarded most of the
calls to trial counsel or the victim-witness liaison, she thinks
“they were all about money and reimbursement for certain
expenses.” We note that this case is somewhat unique in that
Government witnesses provide some support for Parrish’s actual
assertion and that the Government attempted to concede at the
Court of Criminal Appeals.
This is not to say that there is not conflicting evidence
in the record on this issue. To start, the pretrial agreement
itself does not contain an express term covering a deferral of
reduction in grade. In addition, the affidavit from assistant
trial counsel, contrary to the assertions of Parrish’s wife,
denies ever telling her that the pretrial agreement included
deferment of reduction in grade until the convening authority’s
action. Furthermore, COL Shea subsequently provided an
affidavit that characterized his previous representation as
“simply a letter that contain[ed] a mistake” and a follow-up
letter to Parrish’s wife from COL Shea’s successor in the Office
of the Staff Judge Advocate similarly characterizes COL Shea’s
representation in this regard as an error.
Statements in the affidavits from two defense counsel also
contradict Parrish’s assertions. The defense counsel who
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handled the clemency matters averred that he does not recall
ever talking with Parrish about an agreement to defer reduction.
Similarly, an affidavit from the initial defense counsel denies
ever telling Parrish or Parrish’s wife that the pretrial
agreement included deferment of any mandatory reduction in grade
until action. But in that same affidavit the initial defense
counsel also averred that it was his practice to discuss the
possibility of deferring reductions and forfeitures with his
clients and to discuss deferment with his clients if that issue
arose in negotiations with the Government. Notwithstanding
Government trial counsel’s recollection that deferral of
reduction was a consideration, the lead defense counsel does not
recall discussing those issues with Parrish.
Confusion, inconsistency, and factual gaps pervade these
appellate filings and raise questions as to their reliability,
accuracy, and completeness. This record does not support a
conclusion that the improbability of Parrish’s actual assertions
has been compellingly demonstrated under the fourth Ginn factor.
Nor do we find applicable any of the other Ginn factors which
would allow resolution without a post-trial evidentiary hearing.
In these circumstances, resolution of the issue requires
factfinding: to develop the full factual scenario underlying
Parrish’s claim that he and his wife were misinformed by both
defense counsel and trial counsel as to the effect of the
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written pretrial agreement on his pay; to consider, if
applicable, whether deferment of reduction in grade was material
to Parrish’s decision to enter a guilty plea; and to uncover
whether prejudicial legal errors occurred. In this context, we
remand for a DuBay hearing. See United States v. Sherman, 51
M.J. 73, 76 (C.A.A.F. 1999).
DECISION
The decision of the United States Army Court of Criminal
Appeals is set aside. The record of trial is returned to the
Judge Advocate General of the Army for submission to a convening
authority for a hearing pursuant to United States v. DuBay, 17
C.M.A. 147, 37 C.M.R. 411 (1967), to address the facts
underlying Parrish’s claim of error as to deferral of his
reduction in grade. The military judge at such hearing shall
make findings of fact and conclusions of law and then return the
record of trial to the Court of Criminal Appeals for further
review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).
Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall
apply.
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