UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant CHRISTOPHER D. BIRDSONG
United States Army, Appellant
ARMY 20110440
Headquarters, III Corps and Fort Hood
Jacqueline L. Emanuel, Military Judge
Colonel Stuart W. Risch, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard A. Gorini, JA; Captain Robert N. Michaels, JA (on
brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Steve T. Nam, JA (on brief).
20 November 2013
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SUMMARY DISPOSITION
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Per Curium:
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of making a false official statement and aggravated sexual
contact with a child who had not attained the age of 12 years in violation of Articles
107 and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 920 (2006 &
Supp. III 2010), amended by 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The
military judge sentenced appellant to three years confinement and a bad-conduct
discharge. The convening authority disapproved the conviction for aggravated
sexual contact with a child who had not attained the age of 12 years, but approved
findings of guilty of the lesser-included offense of assault consummated by a battery
upon a child under 16 years. The convening authority approved the remaining
findings of guilty and approved a sentence of two years confinement and a bad -
conduct discharge.
Appellant’s case is now pending review before this court pursuant to Article
66, UMCJ. While one of appellant’s three assignments of error merits discussion,
none merit relief. Appellant alleges, inter alia, that he received ineffective
BIRDSONG—ARMY 20110440
assistance of counsel during the post-trial phase of the court-martial when his
defense counsel did not inform him that he could request the convening authority
defer his automatic forfeitures. To support his claim, appellant filed a declaration
made under the penalty of perjury which states in relevant part , “My attorney did not
tell me I could request a deferment or waiver of any pay that was taken from me. ”
Upon motion by the government, we ordered appellant’s defense counsel to address
appellant’s claims of ineffective assistance of counsel , to include his attested
assertion that his defense counsel did not inform him of his right to request
deferment. Appellant’s lead defense counsel responded in an affidavit that he did
inform appellant that he could “petition the convening au thority to defer any
forfeiture,” but appellant never instructed him to do so. Upon review of the
affidavits and record in this case, we conclude that we do not need to order an
evidentiary hearing to resolve the contradictory affidavits because the record of trial
compellingly demonstrates the improbability of appellant’s factual assertions.
United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Following findings at
appellant’s trial, the military judge specifically asked appellant if his counsel
explained to him that he could, among other things, request a deferment of
forfeitures and the appellant answered in the affirmative. Thus, we find that
appellant was informed of his right to submit a deferment request, and appellant’s
claim of ineffective assistance of counsel in this regard is without merit.
CONCLUSION
After considering all of appellant's allegations o f errors and the matters he
raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we find
them to be without merit. On consideration of the entire record, we hold the
findings of guilty and sentence as approved by the convening authority correct in
law and fact. Accordingly, those findings of guilty and the sentence are
AFFIRMED.
Although appellant’s declaration claims his trial defense counsel never requested
deferment on his behalf, we do not read in the declaration that appellant ever asked
his defense counsel to do so. That portion of appellant’s declaration “is too
equivocal and ambiguous to overcome the presumption” of competence. United
States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002). We nonetheless considered this
claim and appellant’s other unattested allegations of ineffective assistance of
counsel, claims raised in appellant’s written pleadings before this court, and found
them to be without merit.
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BIRDSONG—ARMY 20110440
FOR THE COURT:
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
MALCOLM H. SQUIRES, JR.
3
United States v. Sergeant CHRISTOPHER D. BIRDSONG
Combined Opinion