United States v. York

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
DOMINIQUE C. YORK
CULINARY SPECIALIST SECOND CLASS (E -5), U.S. NAVY
NMCCA 201300287
SPECIAL COURT-MARTIAL
Sentence Adjudged: 26 April 2013.
Military Judge: CDR Douglas Barber, Jr., JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: LCDR S.J. Gawronski,
JAGC, USN.
For Appellant: CAPT Ross L. Leuning, JAGC, USN.
For Appellee: LT Ian MacLean, JAGC, USN.
28 February 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a special court-martial
convicted the appellant, pursuant to her pleas, of one
specification of false official statement and one specification
of larceny of military property, in violation of Articles 107,
and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 907 and
921. The military judge sentenced the appellant to two months’
confinement, a fine of $5,000.00, and a bad-conduct discharge.
The convening authority (CA) approved the sentence as adjudged,
and except for the bad-conduct discharge, ordered the sentence
executed.
The appellant raises two assignments of error. First, she
accurately notes that the court-martial promulgating order
contains a number of errors that warrant corrective action.
Because service members are entitled to records that correctly
reflect the results of court-martial proceedings, the necessary
corrections shall be reflected in the supplemental court-martial
order.
Second, the appellant claims that her trial defense counsel
“failed in their obligation to effectively assist in [her]
defense” by failing to challenge the legal sufficiency of the
appellant’s Article 31(b), UCMJ, rights waiver when she provided
a sworn statement to the Naval Criminal Investigative Service
(NCIS).1 The appellant asserts that the NCIS agent’s failure to
read the Article 31(b) rights and Miranda advisory aloud to her
denied her a complete understanding of what rights she was
waiving before she made her statement.2 We disagree. After
careful consideration of the record, the appellant’s claims, and
the briefs of the parties, we conclude that the findings and the
sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
Background
On 16 August 2009, the appellant entered into a fraudulent
marriage for the sole purpose of receiving Basic Allowance for
Housing (BAH) at the “with-dependent” rate. After submitting
her marriage certificate to the personnel department on the USS
ENTERPRISE, the appellant began receiving BAH at the with-
dependent rate. In September of 2010, the appellant was
interviewed by an NCIS special agent about her marriage, during
which she lied about the validity of the marriage. She
continued to receive BAH at the “with-dependent” rate until 1
May 2011. In a second interview with NCIS in May of 2012, the
appellant admitted the marriage was fraudulent.
Errors in the Court-Martial Order
1
This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A 1982).
2
Prosecution Exhibit 2, Military Suspect’s Acknowledgment and Waiver of
Rights Statement, contains the appellant’s initials on each right explained,
as well as her signature at the bottom of the advisement.
2
The appellant asserts that the court-martial order contains
substantial errors that require correction. After reviewing the
record, we note the following scriveners’ errors that require
correction:
1. The appellant was tried before a special court-
martial, not a general court-martial;
2. The appellant pled not guilty to Charge I and its
specification and that offense was withdrawn prior to
the announcement of findings;
3. The appellant pled not guilty to Specification 1
under Charge II and that offense was withdrawn prior
to the announcement of findings;
4. The appellant pled guilty to the specification
under Charge III except for the figure $31,701.06 and
substituting therefor the figure $15,621.50, and was
found guilty in accordance with this plea, with the
excepted figure withdrawn prior to the announcement of
findings.
The appellant does not assert, and we do not find, that these
errors materially prejudiced a substantial right. Nevertheless,
the appellant is entitled to have her official records
accurately reflect the results of her court-martial. United
States v. Crumpley, 49 M.J. 538 (N.M.Ct.Crim.App. 1998).
Claim of Ineffective Assistance of Counsel
The appellant also claims that her trial defense counsel
was ineffective because counsel failed to challenge her first
sworn statement obtained by NCIS, notwithstanding the fact that
she admits that she acknowledged an understanding of her rights
by initialing the respective blocks of the Military Suspect’s
Acknowledgment and Waiver of Rights (Rights Waiver and
Acknowledgment). PE 2; Record at 34-35.
In reviewing for ineffectiveness, the court “looks at the
questions of deficient performance and prejudice de novo.”
United States v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008)
(citation omitted).
A military accused is entitled under the Constitution and
Article 27(b), UCMJ, 10 U.S.C. § 827(b), to the effective
3
assistance of counsel. United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007). We analyze the appellant’s claim of
ineffective assistance of counsel under the test outlined by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
To prevail on a claim of ineffective assistance of counsel, “an
appellant must demonstrate both (1) that his counsel's
performance was deficient, and (2) that this deficiency resulted
in prejudice.” United States v. Green, 68 M.J. 360, 361-62
(C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687) (additional
citation omitted).3
When determining the sufficiency of counsel’s performance
under the first prong of Strickland, the court “must indulge a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.” Strickland, 466
U.S. at 689. Furthermore, the burden of establishing the truth
of factual matters relevant to the claim of ineffective
assistance rests with the accused. Tippit, 65 M.J. at 76. If
there is a factual dispute on a matter pertinent to the claim,
the determination as to whether further fact-finding will be
ordered is resolved under United States v. Ginn, 47 M.J. 236(C.A.A.F. 1997). “If, however, the facts alleged by the defense
would not result in relief under the high standard set by
Strickland, we may address the claim without the necessity of
resolving the factual dispute.” Id. (citing Ginn, 47 M.J. at
248).4
Here, the decision by counsel not to challenge the legal
sufficiency of the appellant’s Rights Waiver and Acknowledgment
in her first sworn statement to NCIS was reasonable and clearly
did not amount to deficient performance under Strickland. The
appellant stated during the providence inquiry that she was
fully satisfied with her trial defense counsel and that she
believed counsel’s advice was in her best interests.5
3
In the guilty plea context, the first part of the Strickland test remains
the same -- whether counsel’s performance fell below a standard of objective
reasonableness expected of all attorneys. Hill v. Lockhart, 474 U.S. 52, 56—
58 (1985)). The second prong, however, is modified to focus on whether the
“ineffective performance affected the outcome of the plea process.” Id. at
59. “(T)o satisfy the ‘prejudice’ requirement, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Id.4
Here, because the appellant did not offer a post-trial affidavit providing
evidence of her ineffective assistance of counsel claim, only the record of
trial was reviewed by this court. As such, no factual dispute is presented,
thus no Ginn analysis is required in this case.
5
Record at 28, 29, 69.
4
Furthermore, the appellant entered into a pretrial agreement
with the Government where she specifically agreed “to not object
to the admission into evidence of any of my statements given to
NCIS agents.”6 Last, the appellant herself admitted to the
military judge that she understood her rights despite the fact
that the NCIS agent did not read them aloud. Record at 34-35.
We will not second-guess strategic or tactical trial decisions
of defense counsel absent the appellant’s showing of specific
defects in his counsel’s performance that were “‘unreasonable
under prevailing professional norms.’” United States v. Mazza,
67 M.J. 470, 475 (C.A.A.F. 2009) (quoting United States v.
Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)).
Conclusion
The findings and sentence as approved by the CA are
affirmed. We direct that the supplemental court-martial order
reflect the correct forum (special court-martial) and the proper
pleas and findings.
For the Court
R.H. TROIDL
Clerk of Court
6
Appellate Exhibit III at 6.
5