UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                             BURTON, RODRIGUEZ, and FLEMING
                                  Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                            First Lieutenant JOEL R. LESTER
                              United States Army, Appellant

                                        ARMY 20190593

                               Headquarters, Fort Bliss
                           Michael S. Devine, Military Judge
                    Colonel Andrew M. McKee, Staff Judge Advocate


For Appellant: Lieutenant Colonel Angela D. Swilley, JA; Captain Paul T. Shirk,
JA.

For Appellee: Lieutenant Colonel Wayne H. Williams, JA.


                                        23 October 2020

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                                    SUMMARY DISPOSITION
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    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge:

      Appellant claims his trial defense counsel was ineffective during the pre-
sentencing proceedings by presenting only three witnesses and failing “to present
evidence in mitigation and extenuation relating to the stress [appellant] was
experiencing” and his attempts to get help from his command. 1 As we explain
below, we find appellant’s trial defense counsel was not ineffective.




1
  Appellant raised several claims of error, to include the issue of ineffective assistance
of counsel pursuant to United States v. Grostefon, 

(C.M.A. 1982). We have
reviewed the entirety of the record and given full and fair consideration to all the issues
personally raised by appellant pursuant to Grostefon, and find them to be without merit.
LESTER—ARMY 20190593

                                   BACKGROUND

       Appellant, a twenty-five year old First Lieutenant graduate of the United
States Military Academy (USMA), pleaded guilty to one specification of absence
without leave, four specifications of failure to report, two specifications of willfully
disobeying a superior commissioned officer, and five specifications of drug usage
occurring over an approximate four month period in violation of Articles 86, 90 and
112a, Uniform Code of Military Justice, 10 U.S.C. § 886, 890, 912a, [UCMJ].
During the pre-sentencing proceedings, the defense called appellant’s parents and a
fellow officer, and appellant provided an unsworn statement. Additionally, defense
counsel admitted a hand-picked thirty-four page exhibit, Defense Exhibit A, which
included appellant’s various military awards, education, and an officer evaluation,
depicting his alleged good military duty performance. 2

      The military judge sentenced appellant to a dismissal, thirteen months of
confinement, and the total forfeiture of all pay and allowances. Pursuant to a
favorable pre-trial agreement negotiated by his trial defense counsel, appellant’s
confinement was capped at four months and one day. We ordered an affidavit from
appellant’s defense counsel regarding appellant’s ineffective assistance claim.
United States v. Lester, ARMY 20190593 (Army Ct. Crim. App. 6 Oct.
2020)(Order).

                              LAW AND DISCUSSION

       We review appellant’s claim of ineffective assistance of counsel de novo.
United States v. Akbar, 

, 379 (C.A.A.F. 2015); United States v. Datavs,

, 424 (C.A.A.F. 2012). The test for ineffective assistance of counsel
requires appellant to prove his counsel’s performance was deficient and the
deficiency resulted in prejudice. United States v. Green, 

, 361-62
(C.A.A.F. 2010) (citing Strickland v. Washington, 

, 687 (1984)).

       Under the first Strickland prong, appellant must show “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth 

. To decide this issue, courts “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”

The presumption of competence is
rebutted by “a showing of specific errors made by defense counsel” that were
“unreasonable under prevailing professional norms.” United States v. McConnell, 

, 482 (C.A.A.F. 2001) (citations omitted).



2
 Defense counsel also admitted a two-page document, Defense Exhibit B, detailing
appellant’s performance as a cadet at USMA.



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LESTER—ARMY 20190593

       Appellant contends his counsel was deficient in presenting only three pre-
sentencing witnesses. 3 Notably, appellant does not specify any particular witness
that his counsel failed to present. At most, appellant alludes that his prior senior
rater, Lieutenant Colonel (LTC) HB, could have offered favorable testimony
regarding appellant’s military duty performance as evidenced by the documents
admitted in Defense Exhibit A. 4

       Defense counsel interviewed LTC HB prior to trial but he was called as a
government witness. During the government’s direct-examination, LTC HB testified
he had given appellant an important position and had been grooming him to become
an aide. During defense’s cross-examination, LTC HB readily admitted appellant
was a talented officer and had been one of the best first lieutenants in the battalion
prior to his offenses. As stated in defense counsel’s affidavit “positive facts
[regarding appellant] were elicited through cross-examination.” Appellant’s claim
of error ignores that LTC HB provided defense favorable testimony. Likewise,
defense counsel favorably cross-examined another government witness, CPT KW,
and successfully admitted the documents in Defense Exhibits A and B. Based upon
this performance, we find counsel’s representation was more than reasonable.

       Appellant further fails, beyond a vague reference to external stress and
blindly asserting his chain of command failed him, to specify the exact nature of the
extenuating and mitigating evidence that his counsel allegedly failed to present.
After reviewing the record of trial, appellant’s allegations, and counsel’s affidavit, it
appears the bulk of appellant’s alleged external stress involved an ex-girlfriend and
now, for the first time on appeal, he blames the chain of command for leaving him to
“flounder and fail on his own.” 5 After a thorough pretrial investigation and
interviewing the available witnesses identified by appellant, defense counsel’s
tactical decisions, i.e., to avoid emphasizing external stressors or to engage in
blame-shifting, were reasonable and not ineffective.

3
 Pursuant to United States v. Ginn, 

, 244-45 (C.A.A.F. 1997), a fact finding
hearing is not necessary because appellant’s claim and defense counsel’s affidavit do
not conflict. Rather, defense counsel’s affidavit acknowledges the existence of
additional pre-sentencing witnesses proposed by appellant.
4
 Although appellant fails to name any witness his counsel failed to present beyond
alluding to LTC HB, defense counsel’s affidavit identifies seven witnesses proposed by
appellant and the reasons those witnesses were not presented.
5
  Appellant’s present assertions regarding his chain of command contradict multiple sua
sponte favorable statements he made to the military judge during the providence
inquiry. In discussing one specification of failure to report, appellant told the military
judge “I should have simply asked my unit for help and I know that they would have
helped me. . . . I am here today simply because I did not allow … my unit to help me.”



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