Filed: Apr. 19, 2012
Latest Update: Mar. 02, 2020
Summary: In this sworn statement, MSG Summerlin details appellants performance in noticing a major deficiency in, his company commanders parachute before a jump, in all likelihood saving him, from potential injuries or death.
In response, this Court ordered appellants first defense counsel (released by, appellant before trial), as well as the two defense counsel who represented appellant, at trial, to answer these allegations and to explain their decision not to introduce the, documents described above.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant BRIAN R. ROGERS
United States Army, Appellant
ARMY 20090372
Headquarters, 82nd Airborne Division
Gary Brockington, Military Judge
Lieutenant Colonel Jeffrey C. Hagler, Staff Judge Advocate (pretrial)
Major Jessica A. Golembiewski, Acting Staff Judge Advocate (post-trial)
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene Jamison,
JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Tiffany K. Dewell, JA (on
brief).
For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain
Michael J. Frank, JA (on brief).
19 April 2012
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of dereliction of duty, as well as wrongfully providing alcohol
to soldiers in violation of Articles 92 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 892 and 934 (2006) [hereinafter UCMJ]. A panel of enlisted and officer
members sitting as a general court-martial convicted appellant, contrary to his pleas,
of violating a lawful general regulation, false official statement, and wrongful sexual
contact, in violation of Articles 92, 107, and 120, UCMJ, 10 U.S.C. §§ 892, 907,
and 920. Appellant was sentenced to be reduced to the grade of Private E-1, total
forfeitures, confinement for forty-eight months, and a dishonorable discharge. The
convening authority reduced the sentence of confinement by one month and
approved the remainder of the sentence as adjudged.
ROGERS—ARMY 20090372
Appellant raises numerous assignments of error, both through counsel and
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), only one of
which merits discussion. Appellant alleges, inter alia, that his trial defense counsel
were ineffective during the sentencing case because they did not submit four
favorable Non-Commissioned Officer Evaluation Reports ( hereinafter NCOERs).
Appellant also alleges ineffectiveness for failing to introduce a sworn statement by a
senior NCO, Master Sergeant (MSG) Terry Summerlin. In this sworn statement
MSG Summerlin details appellant’s performance in noticing a major deficiency in
his company commander’s parachute before a jump, in all likelihood saving him
from potential injuries or death.
In response, this Court ordered appellant’s first defense counsel (released by
appellant before trial), as well as the two defense counsel who represented appellant
at trial, to answer these allegations and to explain their decision not to introduce the
documents described above. The issues we discuss in this opinion concern the latter
two defense counsel and our comments relate to their performance and decisions.
LAW AND DISCUSSION
There is a strong presumption that counsel provided adequate professional
service. United States v. Garcia, 59 M.J. 447 (C.A.A.F. 2004). However, that
presumption is rebutted by a showing of specific errors made by defense counsel that
were unreasonable under prevailing professional norms. United States v.
McConnell,
55 M.J. 479, 482 (C.A.A.F. 2004). The appropriate test for prejudice is
whether there is a reasonable probability that, but for counsel’s error, there would
have been a different result. United States v. Davis,
60 M.J. 469, 473 (C.A.A.F.
2005) (citing United States v. Quick,
59 M.J. 383, 387 (C.A.A.F. 2004)).
The explanations provided by the trial defense team for not admitting the
NCOERs and the sworn statement from MSG Summerlin as part of appellant’s “good
soldier book” fall short. In response to the NCOER omissions they noted that there
were “1-2” referred NCOERs and that in their mind it was better not to include any
of them rather than provide an incomplete NCOER history to the panel. However, a
referred NCOER containing damaging information was introduced by the
government in aggravation, along with appellant’s ERB which indicated a reduction
in rank. This admitted evidence negates defense counsel’s explanation. (We add
that neither the defense nor the government has since produced another referred
NCOER report to buttress that claim). Further, the favorable NCOERs capture time
periods both before and after the referred report, diminishing its impact on the
panel’s perception of appellant’s duty performance. Defense counsel’s explanation
for not introducing the statement of MSG Summerlin is also inadequate. One
defense counsel claims that appellant never informed her of this statement at all.
The other defense counsel posits that introducing this statement in the “good soldier
book” would have opened the door to the separation proceeding for which it was
originally produced. However, defense counsel offers no concrete theory or
explanation to support this fear and we see none available.
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ROGERS—ARMY 20090372
Simply stated, it was error not to introduce these documents, and these errors
were unreasonable under prevailing professional norms. Further, we find that but
for these errors there is a reasonable probability of a different result in sentence, at
the very least as to the type of discharge adjudged. The favorable NCOERs and the
statement from MSG Summerlin detailing appellant’s proficiency could reasonably
have affected the panel’s decision in that regard.
CONCLUSION
On consideration of the entire record, the assigned errors, and the matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), the findings of guilty are affirmed. For the reasons set forth in this
opinion, the sentence is set aside. A rehearing on sentence may be ordered by the
same or a different convening authority.
FOR THE COURT:
JOANNE P.P.
JOANNE TETREAULT ELDRIDGE
TETREAULT ELDR
Deputy Clerk of Court
Deputy Clerk of Court
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