United States v. Specialist JOHN A. GUNDERMAN, JR. , 67 M.J. 683 ( 2009 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HOLDEN, HOFFMAN, and CONN
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JOHN A. GUNDERMAN, JR.
United States Army, Appellant
ARMY 20080239
Headquarters, Combined/Joint Task Force - 101
Timothy Grammel, Military Judge
Colonel Peter M. Cullen, Staff Judge Advocate
For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew
M. Miller, JA; Major Grace Gallagher, JA; Captain Candace N. White Halverson, JA
(on brief); Captain Jess B. Roberts, JA.
For Appellee: Colonel Denise R. Lind, JA; Major Lisa L. Gumbs, JA; Major
Christopher R. Clements, JA (on brief).
30 April 2009
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OPINION OF THE COURT
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CONN, Judge:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of absence without leave and wrongful use of marijuana, in
violation of Articles 86 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§
886 and 912a [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge, confinement for eight months, forfeiture of $898 pay per month
for eight months, and reduction to Private E1. In accordance with the terms of a
pretrial agreement, the convening authority approved only so much of the sentence
as provided for a bad-conduct discharge, confinement for four months, forfeiture of
$898 pay per month for four months, and reduction to Private E1.
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 “advise
appellant that he could request disapproval of the adjudged forfeitures, deferral
under Article 57[, UCMJ] and waiver of automatic forfeitures under Article
GUNDERMAN – ARMY 20080239
58b,UCMJ.” 1 We disagree. The record reflects appellant’s trial defense counsel
properly advised appellant of his post-trial appellate rights and was not ineffective
in his representation. Assuming, arguendo, trial defense counsel provided
inadequate advice, appellant has not demonstrated prejudice.
We take this opportunity to emphasize the significance of a statement taken
under oath and/or penalty of perjury 2 as compared to an unsigned document,
particularly when such a document advances factual evidence of ineffective
assistance of counsel not otherwise contained in the record of trial. See generally
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) (an affidavit from appellant can necessitate a factfinding
hearing beyond the powers of Article 66, UCMJ); United States v. Reardon, 15
1
There are significant differences between a request for deferment under Article
57(a), UCMJ, and a request for waiver under Article 58b, UCMJ, not the least of
which is who is entitled to receive funds from waived forfeitures (the accused’s
dependents) or deferred forfeitures (the accused). A request for deferment concerns
the reduction in grade or automatic forfeitures otherwise in effect between the date
fourteen days after sentence and the date of action. See Article 57(a)(2), UCMJ;
United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002); United States v. Adney, 61
M.J. 554 (Army Ct. Crim. App. 2005).
2
In United States v. Straight, 42 M.J. 244, 248 (C.A.A.F. 1995), our superior court
considered a declaration signed under an acknowledged penalty of perjury, rather
than an affidavit, as a means of submitting post-trial evidence to the court. See also
Hart v. Hairston, 343 F.3d 762, 764 n.1 (5th Cir. 2003) (“[A] declaration . . . under
28 U.S.C. § 1746 . . . is competent sworn testimony for summary-judgment
purposes.”). 28 U.S.C. § 1746 provides:
Wherever, under any law of the United States or under any
rule, regulation, order, or requirement made pursuant to
law, any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn
declaration, verification, certificate, statement, oath, or
affidavit, in writing of the person making the same . . . ,
such matter may, with like force and effect, be supported,
evidenced, established, or proved by the unsworn
declaration, certificate, verification, or statement, in
writing of such person which is subscribed by him, as true
under penalty of perjury, and dated . . . .
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C.M.R. 894 (A.F.C.M.R. 1954) (discussing the legal significance of an affidavit or
sworn document), and cases cited therein.
FACTS
During the sentencing phase of appellant’s trial, appellant made an unsworn
statement and requested a bad-conduct discharge so he could return immediately to
his wife and mother, who lost custody of appellant’s younger brother and needed
appellant’s assistance. Based upon appellant’s concern for his family, the defense
counsel, Captain (CPT) H, asked appellant whether he desired the court to refrain
from adjudging forfeiture of pay and allowances. Appellant responded
affirmatively. Part of defense counsel’s closing argument was a repetition of that
request for the financial benefit of appellant’s family. Alternatively, CPT H
requested a discharge for appellant in lieu of significant confinement.
Prior to adjournment of the court, the military judge discussed the sentence
adjudged, the effects of appellant’s pretrial agreement, and appellant’s post-trial
rights. The military judge appended to the record a post-trial appellate rights form,
initialed and signed by appellant. This form specifically advised appellant of
automatic forfeitures occurring by operation of Article 58b, UCMJ, and appellant’s
ability to request the convening authority defer both adjudged and automatic
forfeitures. Regarding appellant’s post-trial rights, the following colloquy between
appellant and the military judge ensued:
MJ: Specialist Gunderman, do you have a copy of
Appellate Exhibit V, a post-trial and appellate rights form,
in front of you?
....
MJ: Did you fully read this document before you signed
it?
ACC: Yes, sir.
....
MJ: Specialist Gunderman, did your defense counsel
explain these post-trial and appellate rights to you?
ACC: Yes, sir.
MJ: Do you have any questions about your post-trial and
appellate rights?
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ACC: No, sir.
During the post-trial phase of appellant’s court-martial, neither appellant nor
his counsel requested forfeiture relief or mentioned the deferment or waiver request
in subsequent submissions to the convening authority. Captain H timely submitted a
clemency petition and included appropriate enclosures to support his request that the
convening authority disapprove the findings or reduce appellant’s confinement.
Captain H noted appellant’s family circumstances, but did not refer to any specific
financial hardship. In appellant’s letter to the convening authority submitted
pursuant to Rules for Courts-Martial [hereinafter R.C.M.] 1105 and 1106, appellant
apologized to his unit and fellow soldiers. Appellant also made a specific request
for clemency; however, notably absent from appellant’s request was any appeal for
any type of waiver or deferment of forfeitures:
Sir, I would respectfully request that you set aside my
conviction. In addition, I request that you reduce my time
in confinement so that I can return to my wife and provide
for her emotionally and financially. In the alternative, I
request that you set aside my conviction so that I may be a
useful member of society. I have accepted responsibility
for my actions. I am asking for a second chance in life.
On 8 August 2008, appellate defense counsel submitted a brief alleging the
following assignment of error:
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL IN THE POST-TRIAL PHASE OF HIS
COURT-MARTIAL WHEN TRIAL DEFENSE COUNSEL
FAILED TO ADVISE APPELLANT THAT HE COULD
REQUEST DISAPPROVAL OF THE ADJUDGED
FORFEITURES, DEFERRAL UNDER ARTICLE 57 AND
WAIVER OF AUTOMATIC FORFEITURES UNDER
ARTICLE 58b, UCMJ, AND TRIAL DEFENSE
COUNSEL FAILED TO MAKE THOSE REQUESTS OF
THE CONVENING AUTHORITY ON APPELLANT’S
BEHALF.
In support of this assignment of error, appellate defense counsel submitted a
Motion to Attach Defense Appellate Exhibit, a document purportedly from the
accused—entitled “SWORN AFFIDAVIT”—supporting the allegation of ineffective
assistance of counsel. The document was unsigned and unsworn; however, a
footnote to appellant’s motion noted, “The unsigned version of appellant’s affidavit
is enclosed with this motion. As soon as the signed and notarized copy is received
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by appellate defense counsel, it will be provided to the Court.” The unsigned
document stated in pertinent part, “CPT [H] never told me that I could also submit a
request to the convening authority that he not approve my adjudged forfeitures and
defer my automatic forfeitures . . . [or] waive any automatic forfeitures.” The
unsigned document averred appellant would have requested deferment and waiver of
forfeitures because appellant’s wife was depending on his military pay for housing
while he was in confinement.
We invited appellate defense counsel to obtain and present appropriate
evidence in support of her assignment of error. On 25 February 2009, we ordered:
[A]ppellant may file an affidavit or unsworn declaration
under penalty of perjury relating to his allegation of
ineffective assistance of counsel with the Court on or
before 7 March 2009.
If appellate defense counsel do not desire or are unable to
file any additional documents, counsel will inform this
Court in writing within five (5) days of the receipt of this
Order.
On 2 March 2009, appellate defense counsel filed a response to our order
stating, “[C]ounsel for appellant hereby notifies the Court that counsel is unable to
obtain an affidavit or unsworn declaration from appellant.” To date, appellant has
not submitted a signed copy of appellant’s “SWORN AFFIDAVIT.”
LAW
Deferment and Waiver of Forfeitures
The convening authority may, upon request of an accused, defer automatic
forfeiture of pay or allowances from their effective date fourteen days after sentence
is announced until the date on which the convening authority approves the sentence.
Article 57(a)(2), UCMJ; R.C.M. 1101(c)(2). Action on a deferment request must be
in writing, and “must include the reasons upon which the action is based.” See
United States v. Sloan, 35 M.J. 4, 6-7 (C.M.A. 1992) (citing R.C.M. 1101(c)(3)).
Under Article 58b, UCMJ, a convening authority may waive automatic
forfeitures for the benefit of a convicted servicemember’s dependents if the member:
(1) received a qualifying sentence, (2) is in confinement or on parole, and (3) is
entitled to pay and allowances that are subject to mandatory forfeitures. Emminizer,
56 M.J. at 444. “When a servicemember is not entitled to compensation covered by
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the mandatory forfeiture provisions of Article 58b, UCMJ, there is nothing to
waive.” Id.
Ineffective Assistance of Counsel
This court reviews claims of ineffective assistance of counsel de novo.
United States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997). Strickland v. Washington,
466 U.S. 668, 687 (1984), established a two-part test for ineffective assistance of
counsel: an appellant must show deficient performance and prejudice. There is a
“strong presumption” counsel are competent. Id. at 689. Broad, generalized
accusations are insufficient to satisfy the first prong. See United States v. Moulton,
47 M.J. 227, 229-30 (C.A.A.F. 1997). An appellant is entitled to raise claims of
ineffective assistance of counsel regarding post-trial representation, judged by the
same standard as representation at trial. See Wiley, 47 M.J. at 159.
Our superior court previously stated:
Trial defense counsel should not be compelled to justify
their actions until a court of competent jurisdiction
reviews the allegation of ineffectiveness and the
government response, examines the record, and determines
that the allegation and the record contain evidence which,
if unrebutted, would overcome the presumption of
competence.
United States v. Lewis, 42 M.J. 1, 6 (C.A.A.F. 1995); see generally Melson, 66 M.J.
346; Ginn, 47 M.J. at 243 (Courts of Criminal Appeals lack authority to make
findings of fact regarding post-trial claims of ineffectiveness of counsel based on
conflicting post-trial affidavits).
DISCUSSION
Affidavits and Declarations Made under Penalty of Perjury
Appellant has not filed an affidavit or unsworn declaration under penalty of
perjury asserting he was misinformed by his trial defense counsel, that counsel’s
post-trial representation was contrary to appellant’s wishes, or that he was
prejudiced by trial defense counsel’s purported inaction. We decline to use an
unsigned document as extrinsic evidence upon which to base a decision. To be
admissible before this court, factual assertions must be contained in an appellate
record of trial or admitted in a proper form. Such an analysis is consistent with
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GUNDERMAN – ARMY 20080239
related precedent from our courts 3 and civilian 4 practice. Indeed, our own internal
rules of procedure reflect this requirement for some form of solemnity. The Army
Court of Criminal Appeals Internal Rules of Practice and Procedure [hereinafter
A.C.C.A. R.] mandate, “If a party desires to attach a statement of a person to the
record for consideration by the Court on any matter, such statement shall be made
either in an affidavit or as an unsworn declaration under penalty of perjury. . . .”
A.C.C.A. R. 23(b) (adopting the Joint Rules of Practice and Procedure of the Courts
of Criminal Appeals Rule 23(b)); see generally United States v. Gilley, 59 M.J. 245,
248 (C.A.A.F. 2004) (citing Eugene R. Fidell et al., Rules of Practice and Procedure
and Citation--United States Armed Services Courts of Criminal Appeals--United
States Courts-Martial (2003)).
In evaluating post-trial claims of ineffective assistance of counsel not
previously raised or contained in the record of trial, an appellant should provide this
court with either a sworn affidavit or a declaration made under the penalty of
perjury. See generally Ellis, 47 M.J. at 22 (noting the lack of affidavit from the
appellant and the “reluctan[ce] to invade the lawyer-client privilege . . . until
appellant personally attacks his counsel.”); Ginn, 47 M.J. at 248 (extra-record
assertions of facts must be in admissible form). The affidavit or declaration must be
accompanied by a motion to attach. See A.C.C.A. R. 23(b). In addition, appellant
should provide additional supporting documents to substantiate those claims raised
3
See generally United States v. Ellis, 47 M.J. 20, 22 (C.A.A.F. 1997) (noting the
lack of affidavit to support appellant’s post-trial claim); United States v. Ramirez,
19 M.J. 289 (C.M.A. 1985) (order) (“[I]n the absence of a stipulation or
extraordinary circumstances, [a properly executed affidavit] is the only admissible
evidence to demonstrate appellant’s assertion of facts to explain his failure to file a
timely petition.”); United States v. Bell, 34 M.J. 937, 945 (A.F.C.M.R. 1992)
(submissions that appellant wishes the court to consider for evidentiary purposes
“should” be sworn).
4
See, e.g., Betouche v Ashcroft, 357 F.3d 147 (1st Cir. 2004) (Board of Immigration
Appeals did not abuse its discretion in denying relief to deportable alien who alleged
ineffective assistance of counsel but failed to provide a sworn affidavit detailing his
agreement with counsel or to advise counsel and give him opportunity to respond);
Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988)
(addressing the merits of an unsigned and unsworn affidavit); United States v.
Simmons, 714 F.2d 29, 32 (5th Cir. 1983) (noting a witness had “little to lose” when
a post-trial statement is not sworn); People v. Johnson, 183 Ill. 2d 176, 187 (Ill.
1998) (Defendant is not entitled to a post-trial evidentiary hearing unless “the trial
record or accompanying affidavits” demonstrate the defendant’s constitutional rights
were violated).
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in appellant’s submissions. See United States v. Crawford, 62 M.J. 411 (C.A.A.F.
2006); United States v. Gosser, 64 M.J. 93 (C.A.A.F. 2006) (appellant failed to
support his post-trial claim with substantiating documents).
By reaffirming this requirement, we do not exalt form over substance. We do
not limit matters personally raised by an appellant or diminish the legal merit our
court assigns to those issues, even when raised in an unsigned document. See United
States v. Peel, 29 M.J. 235 (C.M.A. 1989) (evaluate substance rather than form when
determining whether documents were properly considered Grostefon matters). 5
However, assertions of fact, even from an appellant, must either be contained in the
record or offered in an admissible form. 6 Matters raised personally by the accused
do not “signal [the] abolition of basic rules of appellate practice and procedure.”
United States v. Healy, 26 M.J. 394, 397 (C.M.A. 1988). Grostefon matters will be
considered with the same importance and weight as matters raised by appellate
counsel; however, in the same fashion that claims by counsel are not accepted as
extrinsic facts, neither are unsigned Grostefon matters submitted by an appellant.
We therefore reaffirm a longstanding legal principle: the oath or swearing
process itself has legal import. See United States v. Trainor, 376 F.3d 1325, 1332
(11th Cir. 2004) (An oath “may induce a feeling of special obligation to speak the
truth, and it may also impress upon the witness the danger of criminal punishment
5
We recognize and fully agree with our superior court’s guidance on this matter:
[T]he purpose of our holding in Grostefon was to assure
that an accused had the opportunity to bring to the
attention of the appellate court any issue he wished to
have considered with respect to the findings and sentence,
as finally approved by the convening authority. Thus, we
require appellate defense counsel to invite the attention of
the Court of Military Review or of this Court to issues
specified by an accused. Thereby, we have sought to
guarantee that no accused would be left with the belief
that his lawyer had not raised an issue which he wished to
have considered.
Healy, 26 M.J. at 397.
6
We note, as has our sister court, there must be limitations on the form in which
appellant raises Grostefon issues. See Bell, 34 M.J. 937. Documents an appellant
wishes to be considered as evidence “should be sworn.” Id.8
GUNDERMAN – ARMY 20080239
for perjury, to which the judicial oath or an equivalent solemn affirmation would be
a prerequisite condition.”). The oath or swearing encourages a sense of obligation to
tell the truth; “those who have been impressed with the moral, religious or legal
significance of formally undertaking to tell the truth are more likely to do so than
those who have not made such an undertaking or been so impressed.” United States
v. Turner, 558 F.2d 46, 50 (2d Cir. 1977).
Application to this Case
In light of appellate defense counsel’s response to our order and the lack of a
sworn statement from appellant, we must decide this case only upon the facts in the
record of trial. The relevant facts are: (1) appellant signed a document labeled
“Post-Trial and Appellant Rights” which informed him of the operation of Article
58b, UCMJ, and his right to “petition the convening authority to defer forfeitures
until the time of final action”; (2) at trial, appellant agreed that he was properly
informed of his post-trial appellate rights; and (3) appellant submitted a personal
letter submitted pursuant to R.C.M. 1105 and 1106, void of any indication he desired
automatic or adjudged forfeitures be deferred or waived.
Based upon these facts, appellant has not demonstrated he wished to submit a
request for deferment and waiver of forfeitures, or that CPT H was deficient in his
post-trial representation of appellant. To the contrary, the existing record
demonstrates appellant was informed of his post-trial appellate rights, submitted a
clemency request without reference to forfeitures, and was properly served with the
record of trial. Appellant has the burden of establishing a factual foundation for a
claim of ineffective representation. See Moulton, 47 M.J. at 229. Appellant has
failed to do so in this case. See generally Melson, 66 M.J. at 347 (reaffirming the
strong presumption of competence when evaluating ineffective assistance of
counsel). Having failed to establish his counsel was deficient, we decline to grant
relief.
Assuming, arguendo, appellant satisfied the first prong of Strickland,
appellant has not established prejudice. Although appellant’s unsigned “affidavit”
asserts he would have requested a deferment and waiver of forfeitures if advised of
his right to do so, appellant has failed to provide this court any offer of proof
regarding what he would or could have submitted to support his deferment and
waiver request. It is the responsibility of appellant to provide such information. See
Moulton, 47 M.J. at 229-30 (C.A.A.F. 1997) (“When factual information is central to
an ineffectiveness claim, it is the responsibility of [appellant] to make every feasible
effort to obtain that information and bring it to the attention of the appellate
court.”). In the absence of additional information, it is pure speculation that the
convening authority, who had already approved a favorable pretrial agreement,
might have been inclined to grant further forfeiture relief. Under the circumstances
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of this case, we find appellant failed to demonstrate prejudice and decline to grant
relief.
DECISION
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.
Senior Judge HOLDEN and Judge HOFFMAN concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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