Filed: Sep. 26, 2017
Latest Update: Mar. 03, 2020
Summary: See Gilley, 56 M.J. One also claims to, have overheard trial defense counsel tell Appellant that the guilty plea would, not affect the medical evaluation board.advice, would have been expected to agree to a term not to approve a dishon-, orable discharge, even if at the cost of more confinement.
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39036
________________________
UNITED STATES
Appellee
v.
Richard J. CAMPBELL
Master Sergeant (E-7), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 26 September 2017
________________________
Military Judge: Natalie D. Richardson and Matthew S. Ward (motions);
L. Martin Powell.
Approved sentence: Bad-conduct discharge, confinement for 7 months,
forfeiture of all pay and allowances, and reduction to E-3. Sentence ad-
judged 12 January 2016 by GCM convened at Nellis Air Force Base,
Nevada.
For Appellant: Captain Patrick A. Clary, USAF.
For Appellee: Major Cara J. Condit, USAF; Major Collin F. Delaney,
USAF; Major Mary Ellen Payne, USAF; Major Jeremy D. Gehman,
USAF; Gerald R. Bruce, Esquire.
Before HARDING, SPERANZA, and HUYGEN Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the Court, in which
Judge SPERANZA and Judge HUYGEN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Campbell, No. ACM 39036
HARDING, Senior Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas, of one specification of conspiracy to commit larceny
and two specifications of larceny of military property of a value more than
$500.00, in violation of Articles 81 and 121, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 881, 921. The military judge sentenced Appellant to a
bad-conduct discharge, confinement for seven months, forfeiture of all pay and
allowances, and reduction to E-3. The convening authority approved the ad-
judged sentence.
Appellant asserts a single assignment of error: 1 whether trial defense coun-
sel was constitutionally ineffective when he advised Appellant regarding the
collateral consequences of his guilty plea. Although not raised as an assign-
ment of error, Appellant nonetheless brought to the attention of the court al-
leged error regarding the effect of the pretrial agreement (PTA) limitation on
the sentence to confinement as reflected in the staff judge advocate’s recom-
mendation (SJAR), addendum, and convening authority’s action. Specifically,
Appellant alleges error in that the action of the convening authority, consistent
with the recommendation in the SJAR and addendum, approved seven months
of confinement as adjudged, contrary to the PTA that the approved sentence
would not exceed six months of confinement if confinement was adjudged. We
agree that there was error regarding the approved confinement and consistent
with the limitation of the PTA, we affirm only six months of the adjudged sen-
tence to confinement. Finding no further error prejudicial to a substantial right
of Appellant, we affirm the findings and sentence as modified.
I. BACKGROUND
Prior to a permanent change of station move from Beale Air Force Base,
California, to Osan Air Base, Korea in December 2011, Appellant entered into
a sham marriage with JH in order to claim basic allowance for housing (BAH)
at the with-dependent rate and family separation allowance (FSA). Appellant
met and befriended JH at a convenience store that he frequented. JH was one
of three women with whom Appellant discussed marriage in order to receive
BAH and FSA while he was stationed in Korea and his purported dependent
spouse remained in the continental United States. JH eventually agreed to
marry Appellant in exchange for payments of $200 a month. Appellant and JH
1Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). In addition
to the specific claim identified by Appellant, we considered all other ineffective assis-
tance of counsel claims implicitly raised by Appellant pursuant to Grostefon,
12 M.J.
431. We reject those remaining claims; they require no additional analysis and do not
warrant relief. See United States v. Matias,
25 M.J. 356 (C.M.A. 1987).
2
United States v. Campbell, No. ACM 39036
entered into a prenuptial agreement, married, and further agreed to terminate
their marriage upon Appellant’s return to the United States. Between Decem-
ber 2011 and December 2013, Appellant fraudulently received $73,045 of de-
pendent BAH and $6,233 of FSA.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Appellant alleges that his trial defense counsel did not properly advise him
on the impact his guilty plea and PTA would have on his eligibility for disabil-
ity processing. Specifically, Appellant alleges that his trial defense counsel
were deficient when they advised him “that as long as [he] did not receive a
dishonorable discharge, [his] medical evaluation board should still go through
and [he] would still receive [his] medical retirement and medical benefits.” Ap-
pellant further claims he was prejudiced by his trial defense counsel’s deficient
advice as he “would not have pleaded guilty and entered into a pretrial agree-
ment if [he] had known that the conviction and punitive discharge would affect
[his] medical evaluation board and access to disability benefits.” We conclude
that the performance of Appellant’s trial defense counsel was not deficient and
thus there was no deficiency that could have resulted in prejudice.
The Sixth Amendment guarantees Appellant the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we conduct the two-part inquiry set forth
in Strickland v. Washington,
466 U.S. 668, 687 (1984). “In order 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 defi-
ciency 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). In reviewing for ineffec-
tiveness, the court “looks at the questions of deficient performance and preju-
dice de novo.” United States v. Gutierrez,
66 M.J. 329, 330–31 (C.A.A.F. 2008).
We 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 (citing United
States v. Grigoruk,
52 M.J. 312, 315 (C.A.A.F. 2000)). Accordingly, we “will not
second-guess the strategic or tactical decisions made at trial by defense coun-
sel.” United States v. Mazza,
67 M.J. 470, 475 (C.A.A.F. 2009) (citations omit-
ted). When Appellant “attacks the trial strategy or tactics of the defense coun-
sel, [he] must show specific defects in counsel’s performance that were ‘unrea-
sonable under prevailing professional norms.’”
Id. (quoting United States v. Pe-
rez,
64 M.J. 239, 243 (C.A.A.F. 2006)). We utilize the following three-part test
to determine whether the presumption of competence has been overcome:
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United States v. Campbell, No. ACM 39036
1. Are appellant's allegations true; if so, is there a reasonable explanation
for counsel's actions?
2. If the allegations are true, did defense counsel’s level of advocacy fall
measurably below the performance ordinarily expected of fallible lawyers?
3. If defense counsel was ineffective, is there a reasonable probability that,
absent the errors, there would have been a different result? 2
See United States v. Gooch, 69 M.J. 358, 362 (C.A.A.F. 2011) (quoting
United States v. Polk,
32 M.J. 150, 153 (C.M.A. 1991)).
Appellant’s claim of ineffective assistance of counsel largely hinges on the
resolution of a disputed question of fact pertaining to the advice given to Ap-
pellant regarding the collateral consequence of a punitive discharge on disabil-
ity processing. Nonetheless, having applied the fourth and fifth principles an-
nounced in United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997), we can
resolve the issue raised by Appellant without ordering a fact-finding hearing.
We considered the entire record of Appellant’s trial, a guilty plea during which
he expressed his satisfaction with trial defense counsel, and concluded that
while Appellant’s declaration is factually adequate on its face, the appellate
filings and record as a whole “compellingly demonstrate” the improbability of
those facts.
Id. Appellant’s claim about his counsel’s advice is fatally undercut
by the sentencing limitation that Appellant agreed to in the PTA and his own
words to the military judge in his unsworn statement.
In addition to his declaration discussed above, Appellant also provided dec-
larations from two potential defense character witnesses who were present at
the trial in support of Appellant. These witnesses in their declarations claim
to have spoken with trial defense counsel and been told “the court-marital
would have no bearing on the medical evaluation board.” One also claims to
have overheard trial defense counsel tell Appellant that the guilty plea would
not affect the medical evaluation board.
Both of Appellant’s trial defense counsel provided affidavits in response to
Appellant’s allegation. Contrary to Appellant’s claim, both counsel state that
2 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 ex-
pected of all attorneys. Hill v. Lockhart, 474 U.S. 52, 57 (1985). The second prong is
modified to focus on whether the “ineffective performance affected the outcome of the
plea process.”
Id. at 59; see also Lafler v. Cooper,
566 U.S. 156, 163 (2012). “[T]o satisfy
the ‘prejudice’ requirement, [Appellant] must show that there is a reasonable proba-
bility that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.”
Hill, 474 U.S. at 59. As we do not find that trial defense
counsel was ineffective, we need not address whether Appellant would have insisted
on going to trial.
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United States v. Campbell, No. ACM 39036
Appellant was advised any punitive discharge would halt the medical evalua-
tion board and that avoiding a punitive discharge was a paramount goal during
the negotiation for the PTA. The Government, however, was willing to agree
only to not approving a dishonorable discharge in exchange for a higher con-
finement cap, leaving the possibility for the convening authority to approve a
bad-conduct discharge. Trial defense counsel stated that Appellant was ad-
vised the PTA could allow him to avoid a dishonorable discharge but a bad-
conduct discharge remained a possibility, with or without a PTA. Appellant
ultimately agreed to a PTA that did not contain a limitation on the convening
authority’s ability to approve a dishonorable discharge or bad-conduct dis-
charge. Instead, the only sentence limitation was an agreement by the conven-
ing authority to disapprove any confinement in excess of six months. According
to trial defense counsel, Appellant signed the PTA and was told that the focus
during the presentencing hearing would be to avoid the punitive discharge as
that punishment would stop the disability process. During sentencing argu-
ment, trial defense counsel made the following appeal to the military judge:
You can arrive at a just punishment that doesn’t include a puni-
tive discharge for him; one that doesn’t . . . cut him off
from . . . future opportunities for care and treatment that he ac-
tually needs.
Consistent with this strategy, Appellant included the following in his oral
unsworn statement:
I know that I must be punished for what I did was—what I had
done wrong. I know I must atone for it. I am begging you today
for a punishment that allows me some hope of getting the treat-
ment I need. If you are considering giving me a punitive dis-
charge, I am asking you to give me more confinement instead.
Whatever is necessary, just not a punitive discharge that would
take away my care and treatment. I know that I need to be pun-
ished. Jail can do this, and ensure that I still have access to my
medication, treatment and care. In addition to the mental issues
I am dealing with, I am also dealing with an anterior cervical
discectomy and fusion, which has let me with permanent health
problems. (Emphasis added)
First, there is no dispute as to trial defense counsel’s assertion that, during
the PTA negotiation, the Government was willing to not approve a dishonora-
ble discharge but was not willing to eliminate the possibility of a bad-conduct
discharge. If trial defense counsel had erroneously advised Appellant, as he
claims, that “as long as [he] did not receive a dishonorable discharge, [his] med-
ical evaluation board should still go through,” then Appellant, relying on that
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United States v. Campbell, No. ACM 39036
advice, would have been expected to agree to a term not to approve a dishon-
orable discharge, even if at the cost of more confinement. Such a term, con-
sistent with the erroneous advice alleged, would have effectively shielded Ap-
pellant’s disability case from the results of the court-martial. Appellant, how-
ever, did not opt for the protection of this term and instead agreed to a limita-
tion on the length of confinement that could be approved by the convening au-
thority. The choice he made—to limit confinement rather than eliminate the
dishonorable discharge—is highly corroborative of the correct advice by his
counsel and Appellant’s understanding that any punitive discharge, dishonor-
able or bad-conduct, would make him ineligible for disability processing. Given
that the offer to eliminate the dishonorable discharge would not achieve Ap-
pellant’s goal of negating the impact of the court-martial on his disability case,
trial defense counsel reasonably sought to reduce Appellant’s confinement risk.
Appellant’s agreement to that specific and sole benefit is compelling circum-
stantial evidence that he was correctly advised and understood that any puni-
tive discharge would make him ineligible for disability processing.
Secondly, Appellant’s unsworn statement more directly shows he under-
stood the effect of any punitive discharge on his disability case. He expressly
begged the military judge not sentence him to a punitive discharge that would
take away his care and treatment. Notwithstanding his current claims to the
contrary, Appellant understood at the time of his unsworn statement that a
punitive discharge, to include a bad-conduct discharge, would place the possi-
bility of medical disability benefits in jeopardy. Furthermore, Appellant’s clem-
ency request was consistent with an understanding that any approved punitive
discharge would make him ineligible for disability processing. Thus, he asked
the convening authority to disapprove the adjudged bad-conduct discharge and
permit him “to proceed with a medical discharge in order to receive the mental
and physical help [he] desperately need[ed].”
The documentary evidence against Appellant, including claims for the al-
lowances, payments, and electronic correspondence with JH, was strong. Com-
bined with the availability of an immunized JH to testify about the sham mar-
riage and their conspiracy to defraud the United States Air Force, proof of Ap-
pellant’s guilt was overwhelming. Further, the moral turpitude and lengthy
duration of his offenses as well as the large sum of money stolen by Appellant
made a sentence that included a punitive discharge highly likely and exposed
him to the risk of lengthy confinement. It was in this context that trial defense
counsel advised Appellant and Appellant chose to plead guilty pursuant to the
PTA with an understanding that any adjudged punitive discharge jeopardized
his disability case.
The appellate filings and record as a whole “compellingly demonstrate” the
improbability of Appellant’s allegation. Id. Having resolved the factual dispute
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United States v. Campbell, No. ACM 39036
against Appellant, we conclude that trial defense counsel’s performance did not
fall below a standard of objective reasonableness expected of all attorneys and
therefore we need not determine whether there is a “reasonable probability
that, absent the errors,” there would have been a different result.
B. Erroneous SJAR, Addendum and Action
The PTA, as noted above, included a limit on approved confinement of six
months. The adjudged term of confinement was seven months. Notwithstand-
ing the express language of the PTA, both the SJAR and its addendum errone-
ously recommended that the convening authority approve the sentence as ad-
judged. Consistent with those recommendations, the convening authority ac-
tion approved the sentence of seven months of confinement as adjudged, in-
stead of the six months as agreed in the PTA. Despite these errors, Appellant
served a term of confinement consistent with the PTA’s sentence limitation of
six months, ostensibly because the confinement order correctly described the
six-month confinement limitation of the PTA. Consistent with the limitation of
the PTA, we affirm only six months of the adjudged sentence to confinement.
We order that the action be withdrawn and new action substituted that con-
forms to the PTA. We further order promulgation of a corrected court-martial
order.
III. CONCLUSION
The findings of guilt and the sentence, as modified, are correct in law and
fact and no error materially prejudicial to the substantial rights of Appellant
occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accord-
ingly, the findings and only so much of the sentence as provides for a bad-con-
duct discharge, confinement for six months, forfeiture of all pay and allow-
ances, and reduction to E-3 are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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