United States v. Private E1 TIMOTHY R. HOWARD ( 2009 )

                             CONN, HOFFMAN, and GIFFORD
                              Appellate Military Judges
                               UNITED STATES, Appellee
                            Private E1 TIMOTHY R. HOWARD
                            United States Army, Appellant
                                    ARMY 20080807
                       3rd Infantry Division and Fort Stewart
                           Kirsten Brunson, Military Judge
                   Colonel Jonathan C. Guden, Staff Judge Advocate
    For Appellant:  Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M.
    Miller, JA; Major Grace Gallagher, JA; Captain Elizabeth Turner, JA (on
    For Appellee:  Colonel Norman F. J. Allen, III, JA; Lieutenant Colonel
    Martha L. Foss, JA; Major Sara M. Root, JA; Captain Kevin F. Sweeney, JA
    (on brief).
                                  23 December 2009
                                 SUMMARY DISPOSITION
    Per Curiam:
          A military judge sitting as a general court-martial convicted
    appellant, pursuant to his pleas, of six specifications of absence without
    leave and two specifications of escape from confinement, in violation of
    Articles 86 and 95,  Uniform Code of Military Justice, 10 U.S.C. §§ 886 and
    895 [hereinafter UCMJ].  The military judge sentenced appellant to a bad-
    conduct discharge, confinement for nine months, and reduction to Private
    E1.  The convening authority approved the adjudged sentence.  This case is
    before the court for review pursuant to Article 66, UCMJ.
          Though unsupported by a sworn or even a signed statement from
    appellant, appellate defense counsel assert trial defense counsel was
    ineffective for failing to consult with appellant regarding his clemency
    submission.  In support of this assignment of error, on 30 April 2009,
    appellate defense counsel submitted a motion to attach a document
    purportedly from the accused supporting the allegation of ineffective
    assistance of counsel, entitled “AFFIDAVIT.”  The document was unsigned and
    unsworn; however, appellant’s motion noted, “While DAE A [appellant’s
    affidavit] is unsigned, the signed copy is en route and a motion to
    substitute will be filed immediately upon receipt of the signed affidavit.”
          On 20 November 2009, the government responded[1] to appellant’s brief
    and noted that the affidavit was unsworn.  This court waited an additional
    month after the government’s submission to decide the case, in order to
    provide appellant an opportunity to file a signed copy of his affidavit.
    To date, no signed declaration or affidavit has been submitted on
    appellant’s behalf.
          A signed affidavit or declaration made under penalty of perjury is
    necessary when such a document advances essential factual evidence of
    ineffective assistance of counsel not otherwise contained in the record of
    trial.  United States v. Gunderman, 
    67 M.J. 683
    , 688 (Army Ct. Crim. App.
    2009), (citing United States v. Melson, 
    66 M.J. 346
     (C.A.A.F. 2008); United
    States v. Ginn, 
    47 M.J. 236
     (C.A.A.F. 1997); United States v. Reardon, 
    15 C.M.R. 894
     (A.F.C.M.R. 1954)).  Appellant has the burden of establishing a
    factual foundation for a claim of ineffective representation.  United
    States v. Moulton, 
    47 M.J. 227
    , 229-30 (C.A.A.F. 1997).  Appellant, in
    failing to submit a signed affidavit or declaration, has failed to meet his
    burden.  Thus, appellant has not made a colorable showing of possible
    prejudice.  United States v. Wheelus, 
    49 M.J. 283
    , 289 (C.A.A.F. 1998)
          We have considered the matters personally raised by appellant under
    United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), and find them
    without merit.  The findings of guilty and the sentence are affirmed.
                                      FOR THE COURT:
                                      MALCOLM H. SQUIRES, JR.
                                      Clerk of Court
    [1] The government subsequently, with leave of the court, filed a corrected
    copy of its brief on 25 November 2009.

Document Info

DocketNumber: ARMY 20080807

Filed Date: 12/23/2009

Precedential Status: Non-Precedential

Modified Date: 1/9/2015