UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, MORAN, and ALDYKIEWICZ
Appellate Military Judges
UNITED STATES, Appellee
v.
Captain GREGORY L. LATHERY
United States Army, Appellant
ARMY 20110275
Headquarters, Eighth Army (trial)
Headquarters, I Corps (DuBay hearing)
Thomas M. Kulish, Military Judge (trial)
Jeffrey D. Lippert, Military Judge (DuBay hearing)
Colonel Jeffrey C. McKitrick, Staff Judge Advocate (trial)
Colonel William R. Martin, Staff Judge Advocate (DuBay hearing)
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain James S. Trieschmann, Jr., JA
(on brief)
For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowell, JA;
Captain Sean P. Fitzgibbon, JA (on brief)
14 May 2014
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of aggravated sexual assault, indecent acts, larceny, sodomy,
adultery, obstruction of justice, and fraternization (two specifications), in violation
of Articles 120, 121, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
920, 921, 925, 934 (2006 & Supp. III 2010) [hereinafter UCMJ]. The convening
authority approved the adjudged sentence to a dismissal and confinement for four
years.
We review appellant’s case under Article 66, UCMJ. Appellant raises three
assignments of error, two of which merit discussion and one of those merits relief.
LATHERY — ARMY 20110275
Failure to Allege the Terminal Element Under Article 134, UCMJ
Appellant alleges that the four specifications he was convicted of under
Article 134, UCMJ, adultery, obstruction of justice and fraternization (two
specifications), should be dismissed because they failed to allege the terminal
element and therefore failed to state an offense in light of United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012). We agree with appellant and are
compelled to set aside the findings of guilt as to Specifications 1, 2, 4, and 5 of
Charge III in violation of Article 134, UCMJ. None of these specifications allege
the terminal element under Article 134, UCMJ, and there is nothing in the record to
satisfactorily establish notice of the need to defend against the terminal element as
required under Humphries. We will take action in our decretal paragraph to reverse
appellant’s convictions for those offenses.
Ineffective Assistance of Counsel
Appellant alleged in an affidavit: (1) His defense counsel did not request
confinement credit for conditions on his liberty prior to trial, and (2) that his defense
counsel never discussed with him what Article 13, UCMJ, credit meant and told him
that because he was not actually confined or locked up that he was not entitled to
any credit. In response, the Government submitted affidavits from appellant’s
military trial defense counsel and civilian defense counsel. On 16 December 2013,
this court ordered a hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147,
37 C.M.R. 411 (1967) to resolve material inconsistencies in post-trial affidavits
between appellant and his defense counsel regarding appellant’s representation.
The DuBay military judge made, inter alia, the following findings of facts:
CPT Lathery was not confined pretrial. Conditions were
placed on his liberty consistent with the needs of good
order and discipline and with the need to foster good
relations with the host nation. The conditions placed on
CPT Lathery were not in the nature of punishment. . . .
CPT Lathery described his conditions on liberty to MAJ S.
[appellant’s trial defense counsel] at the outset of the
representation. MAJ S. analyzed the conditions and
compared them to those placed on others in the command
and determined they did not present a basis for credit of
any type, including Article 13 or restriction tantamount to
confinement. . . .
Neither MAJ S. nor Mr. B. [appellant’s civilian defense
counsel] told CPT Lathery “since he was not actually
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LATHERY — ARMY 20110275
confined that he was not entitled to any other confinement
credit, including, but not limited to Article 13 credit,” or
any words or statements to that effect. On the contrary,
the defense team appropriately analyzed the conditions on
CPT Lathery’s liberty, and fully discussed their
implications with him, informing him what Article 13 and
other potential credits were and how they applied in CPT
Lathery’s case. . . .
The defense approached the issues of confinement credit
in relation to its effect on the entire trial, and the pre-
sentencing portion specifically. The defense team
correctly appreciated the tactical disadvantage they faced
in raising any issue of improper pretrial punishment or
restriction tantamount to confinement. The defense team
was aware the government counsel knew CPT Lathery had
routinely violated LTC F’s orders placing conditions on
CPT Lathery’s liberty. If the defense team had raised the
conditions on liberty during sentencing the government
would have further impeached CPT Lathery on the issue.
In addition, raising the issue at any juncture during the
investigation and court-martial process may have
prompted the government to prefer additional charges. . . .
While CPT Lathery’s defense team properly advised him
on the issue of sentencing credit, including Article 13 and
restriction tantamount to confinement credit, at the time of
the trial and afterwards CPT Lathery failed to fully
appreciate that raising those issues would have raised
potentially devastating impeachment or rebuttal evidence
that may have negatively impacted his position in
sentencing. The defense team neither ignored CPT
Lathery or [sic] the issue of Article 13 or [sic] other
sentencing credit. On the contrary the defense fully
appreciated these issues, explained them to their client,
and acted in his best interest in not raising them at trial.
To support an ineffective assistance of counsel claim, appellant must meet a
two-prong test that his defense counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668 (1984); United States v. Wean, 45 M.J. 461 (C.A.A.F. 1997). See also United
States v. Green, 68 M.J. 360 (C.A.A.F. 2010). In analyzing the performance of
defense counsel in the case at hand, we adopt the DuBay military judge’s findings of
fact as our own. Upon review of the entire record, to include the DuBay hearing, we
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LATHERY — ARMY 20110275
do not find the performance of appellant’s defense counsel to be deficient. As such,
we do not need to address the prejudice prong of Strickland. United States v. Polk,
32 M.J. 150, 153 (C.M.A. 1991). We hold appellant received effective assistance of
counsel.
CONCLUSION
In addition to the two assigned errors discussed above, we have also
considered appellant’s third assigned error as well as matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find those to be without merit. On consideration of the entire record, including the
briefs and affidavits submitted by all parties, and the DuBay hearing, the findings of
guilty to Specifications 1, 2, 4 and 5 of Charge III and Charge III are set aside and
dismissed. The remaining findings of guilty are AFFIRMED.
Reassessing the sentence on the basis of the errors noted, the entire record,
and applying the principles of the United States v. Sales, 22 M.J. 305 (C.M.A. 1986)
and the factors set forth in United States v. Winkelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), we are confident the military judge would have adjudged the same
sentence absent the errors noted. There is no change to the sentencing landscape or
exposure. See Winckelmann, 73 M.J. at 15-16. Appellant’s maximum sentence to
confinement remains life without possibility of parole. The nature of the remaining
offenses captures the gravamen of appellant’s criminal conduct and appellant
remains convicted of the most serious charges – aggravated sexual assault, indecent
acts, sodomy, and larceny. See id. at 16. Despite facing a maximum sentence to
confinement of life without possibility of parole, the military judge sentenced
appellant, inter alia, to only four years confinement. We are confident of the
sentence the military judge would have imposed for the remaining offenses. See id.
The sentence is AFFIRMED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision, are ordered restored.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
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