United States v. Sergeant ANDREW W. OLSEN ( 2016 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant ANDREW W. OLSEN
United States Army, Appellant
ARMY 20130962
Headquarters, 1st Infantry Division and Fort Riley
Jeffery R. Nance, Military Judge
Colonel Craig E. Merutka, Staff Judge Advocate
For Appellant: Major Amy E. Nieman, JA; Captain Patrick A. Crocker, JA (on
initial brief); * Captain Patrick J. Scudieri, JA; Mr. Mark C. Prugh, Esq. (on brief).
For Appellee: Major A.G. Courie III, JA (on initial brief); Colonel Mark H.
Sydenham, JA; Major John K. Choike, JA; Captain Robyn M. Chatwood, JA (on
brief).
29 January 2016
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SUMMARY DISPOSITION
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Per Curium:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of raping a child under the age of twelve
years, and two specifications of sodomizing a child under the age of twelve years in
violation of Articles 120 and 125, Uniform Code of Military Justice, 10 U.S.C. §§
920, 925 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a
dishonorable discharge, confinement for twenty-seven years, forfeiture of all pay
and allowances, and reduction to the grade of E-1. The convening authority
approved the sentence as adjudged.
*
This court granted a Motion for Leave to Withdraw Pleading upon notice appellant
retained the services of the civilian appellate defense counsel listed above. The
Grostefon matters appended to the withdrawn pleadings were considered by this
court.
OLSEN—ARMY 20130962
This case is before us for review under Article 66, UCMJ. Appellate defense
counsel assigns five errors to this court, and appellant personally raises matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Only one
assigned error warrants discussion but no relief; the matters raised under Grostefon
are without merit.
BACKGROUND
Appellant’s court-martial was preceded by an investigation under Article 32,
UCMJ, and a sanity board ordered by the convening authority under Rule for Courts-
Martial [hereinafter R.C.M.] 706. The military judge granted a Motion to Compel
Appointment of a Forensic Psychiatric Expert filed by defense counsel prior to trial,
resulting in the appointment of Dr. WL to the defense team. Appellant was
represented by civilian defense counsel, Mr. JP, and military defense counsel,
Captain (CPT) GV during these proceedings.
Appellant pleaded guilty to penetrating the vulva of AO, his daughter, with
his penis on divers occasions, penetrating her anus with his penis, and penetrating
her vulva with his tongue on divers occasions. All of these incidents occurred
between 29 June 2009 and 31 January 2012, before AO was twelve years of age.
Appellant pleaded guilty without a pretrial agreement; there was no stipulation of
fact. During his colloquy with the military judge, appellant admitted his misconduct
and stated he was satisfied with the representation of Mr. JP and CPT GV. The
following dialogue occurred between the military judge, counsel, and appellant prior
to findings:
MJ: Sergeant Olsen, has anyone made any agreements
with you or promises to you in an effort to get you to
plead guilty?
ACC: No, Your Honor.
MJ: Defense Counsel, have you had enough time and
opportunity to discuss this case with Sergeant Olsen?
CDC [Mr. JP]: Yes, Your Honor.
DC [CPT GV]: Yes, Your Honor.
MJ: And Sergeant Olsen, have you had enough time and
opportunity to discuss this case with your defense
counsel?
ACC: Yes, Your Honor.
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OLSEN—ARMY 20130962
MJ: Have you in fact consulted fully with them and
received the full benefit of their advice?
ACC: Yes, Your Honor.
MJ: Are you satisfied that their advice is in your best
interests?
ACC: Yes, Your Honor.
MJ: And are you satisfied with them as your defense
counsel?
ACC: Yes, Your Honor.
MJ: And are you pleading guilty voluntarily and of your
own free will?
ACC: Yes, Your Honor.
MJ: Has anyone made any threat or tried in any way to
force you to plead guilty?
ACC: No, Your Honor.
MJ: Do you have any questions as to the meaning and
effect of a plea of guilty?
ACC: No, Your Honor.
MJ: Do you fully understand the meaning and effect of
your plea of guilty?
ACC: Yes, Your Honor.
MJ: Do you understand that even though you believe you
are guilty, you have the legal and moral right to plead not
guilty and to force the government to prove your guilt by
legal and competent evidence beyond a reasonable doubt?
ACC: Yes, Your Honor.
Additionally, the military judge sua sponte conducted a thorough inquiry into
appellant’s mental responsibility and competency to stand trial after the defense
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OLSEN—ARMY 20130962
rested its sentencing case. Beyond satisfactorily answering questions about
appreciating the nature, quality, and wrongfulness of his actions, his understanding
of the proceedings, and his ability to cooperate with the defense team, appellant did
not raise any questions or concerns regarding his counsels’ advice. Further,
appellant did not express dissatisfaction with counsel’s performance in matters
submitted to the convening authority pursuant to R.C.M. 1105.
Appellate defense counsel now asserts appellant received ineffective
assistance at trial when Mr. JP and CPT GV failed to investigate the case or AO’s
prior sexualization by others, and that both counsel: (1) forced him to choose a judge
alone forum before a military judge they knew or should have known could not be
fair; (2) forced him to plead guilty to charges both counsel knew or should have
known, through reasonable diligence, were beyond his actual level of culpability; (3)
failed to at least attempt to suppress appellant’s statements to criminal investigators
that counsel knew or should have known, with reasonable diligence, were
involuntary and inaccurate; (4) failed to properly obtain and use experts for the
defense case (i.e., request a medical doctor to counter the government’s expert and
to properly use their own expert, Dr. WL, to suppress appellant’s statement, fully
explore the lack of a mental responsibility defense, and nullify the findings in
appellant’s sanity board results under R.C.M. 706); and (5) failed to point out to the
trial court that the sanity board results were unreliable.
Upon order from this court, Mr. JP and CPT GV filed sworn affidavits that
conflict with appellant’s affidavit and the supplemental affidavits offered by
appellate defense counsel. While refuting the claims of ineffective assistance, Mr.
JP and CPT GV attest to conducting a thorough investigation of this case, their
preparation for trial, tactical considerations regarding forum selection, pleas, and
potential defenses, and their communications with appellant. Attachments to CPT
GV’s affidavit include an acknowledgement of rights advisement signed by
appellant.
LAW AND DISCUSSION
The Sixth Amendment guarantees an accused the right to the effective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)
(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). To establish that
his counsel was ineffective, appellant must satisfy the two-part test, “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 v. Washington, 466 U.S. 668, 687 (1984)). We review both prongs of the
Strickland test de novo. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)
(citing United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001) and United
States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997)).
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OLSEN—ARMY 20130962
Considering affidavits filed by appellant conflict with affidavits filed by Mr.
JP and CPT GV, we look to whether a post-trial evidentiary hearing is required as a
threshold matter. United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). We
conclude an evidentiary hearing is not warranted and that appellant has not met his
burden of establishing ineffective assistance of counsel. Assuming appellant’s
affidavit is factually adequate on its face, “the appellate filings and the record as a
whole ‘compellingly demonstrate’ the improbability of those facts” and we may,
therefore “discount those factual assertions and decide the legal issue.” Id.
Additionally, we are not convinced appellant has “rationally explain[ed]” the
contradiction between statements he made during his guilty plea and his statements
made under penalty of perjury here. Id.
Appellant’s affidavit is irreconcilable with statements he made at trial, where
he clearly verified an understanding of his legal right to plead not guilty,
acknowledged satisfaction with advice from his counsel, and provided a factual
predicate for his guilt. We “must consider these admissions to determine whether a
disputed issue of fact has been raised which requires that a DuBay hearing be
ordered.” Ginn, 47 M.J. at 244. There was no indication appellant was coerced by
counsel to go judge alone and plead guilty to all charges and specifications.
Moreover, appellant’s defense counsel successfully moved the trial court to appoint
their hand-picked expert (Dr. WL) to assist them before and during the court-
martial, and they presented a coherent presentencing case that met an “objective
standard of reasonableness” well within the “wide range of professionally competent
assistance.” See Strickland, 466 U.S. at 688, 690.
In our view, appellant’s trial statements compellingly demonstrate the
improbability of the facts alleged in his affidavit to this court made under penalty of
perjury. Ginn, 47 M.J. at 248. Given our application of Ginn, we are convinced
appellant has not carried his burden on the first prong of Strickland. Finally, we do
not find Mr. JP and CPT GV were ineffective in their representation of the appellant.
CONCLUSION
Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
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