United States v. Cummings

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________

No. ACM 39446
________________________

UNITED STATES
Appellee
v.
Jason L. CUMMINGS
Master Sergeant (E-7), U.S. Air Force, Appellant
________________________

Appeal from the United States Air Force Trial Judiciary
Decided 3 October 2019
________________________

Military Judge: L. Martin Powell.
Approved sentence: Bad-conduct discharge, confinement for 4 months,
and reduction to E-4. Sentence adjudged 9 January 2018 by GCM con-
vened at Francis E. Warren Air Force Base, Wyoming.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Senior Judge
J. JOHNSON and Judge KEY joined.
________________________

This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________

POSCH, Judge:
In accordance with Appellant’s unconditional guilty plea pursuant to a pre-
trial agreement (PTA), a general court-martial composed of a military judge
found Appellant guilty of one charge and specification of assault consummated
by a battery upon his adopted daughter, SC, a child under the age of 16 years,
 United States v. Cummings, No. ACM 39446

in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 928. 1 As agreed to by the convening authority in the PTA, Appellant pleaded
not guilty to a charge and two specifications alleging sexual assault and abu-
sive sexual conduct of SC, in violation of Article 120b, UCMJ, 10 U.S.C. § 920b,
which were withdrawn and dismissed by the convening authority without prej-
udice after announcement of sentence. 2
After the military judge accepted Appellant’s plea, Appellant was sen-
tenced to a bad-conduct discharge, confinement for four months, and reduction
to the grade of E-4. Before taking action, the convening authority deferred the
reduction in grade and mandatory forfeitures of Appellant’s pay and allow-
ances until action. At action, the convening authority approved the adjudged
sentence, which did not exceed the limitations in the PTA. The convening au-
thority also waived the mandatory forfeitures for a period of four months, or
release from confinement, or expiration of term of service, whichever was
sooner, for the benefit of Appellant’s dependent spouse and children.
On appeal, Appellant claims the only reason he entered into a PTA with
the convening authority and pleaded guilty was because he felt the combined
pressure from the Government and his defense counsel to end the case, and
the only way he could do that was to plead guilty. To this end, Appellant as-
signs three errors: (1) whether Appellant’s plea of guilty is improvident be-
cause the Government’s improper conduct during the investigation violated
Appellant’s right to due process, thereby pressuring him into pleading guilty
when there was no evidence to corroborate Appellant’s confession; (2) whether
Appellant’s trial defense counsel were ineffective, and his plea of guilty invol-
untary, because Appellant was pressured by his counsel to plead guilty; 3 and
(3) whether the sentence to a bad-conduct discharge is inappropriately severe.
We find no error and affirm.

I. BACKGROUND
Appellant’s conviction, and the matters he raises on appeal, stem from an
allegation made by his adopted 14-year-old daughter, SC, who claimed that
Appellant put his hand down the back of her shorts and squeezed her bottom

1 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules
for Courts-Martial, and Military Rules of Evidence are to the Manual for Courts-Mar-
tial, United States (2016 ed.).
2 The convening authority further agreed to dismiss the charge and specifications al-
leging a violation of Article 120b, UCMJ, with prejudice “upon completion of appellate
review in which the findings and sentence have been upheld.”
3Appellant personally asserts this issue. See United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).

2
 United States v. Cummings, No. ACM 39446

and touched her vagina while they were together one evening in their off-base
home in Cheyenne, Wyoming.
The day after the charged incident, SC recounted Appellant’s conduct to
her mother and a friend, each of whom independently took action that caused
SC’s allegation to be reported to military and civilian law enforcement person-
nel. The same day these personnel received the reports, SC repeated her ac-
count to a sexual assault nurse examiner (SANE). SC relayed to the SANE that
Appellant told her he “had to tell” SC “a dark secret.” Appellant then put his
hands down her pants and told SC sometimes he wished he had SC all to him-
self. After Appellant removed his hands, SC related that Appellant put his
hands back into her pants and told SC he wished he could see her naked, and
Appellant stuck his fingertips into her vagina.
The same day law enforcement personnel received the reports, SC and Ap-
pellant were separately interviewed by agents of the Air Force Office of Special
Investigations (AFOSI). The AFOSI agents confronted Appellant with SC’s al-
legations, which Appellant initially and repeatedly denied. Later during the
interview, Appellant admitted he touched SC’s bottom and vagina, and signed
a sworn statement to that effect. Appellant was recorded telling the AFOSI
agents, “I remember sliding my hand down her butt and my finger touched her
vagina. That is the honest to God truth, I don’t have anything else to hide.”
Appellant subsequently wrote in his own hand, inter alia, “At some point I
placed my hands on her butt” and “[a]t some point I placed my hands on her
butt again but this time I reached further down and put my right index finger
on her vagina and pushed down a little. I remember my finger feeling the outer
lips and I pulled back and she jumped.”
Appellant’s commander promptly ordered Appellant to have no contact
with SC and limited supervised contact with another of his children, which
order would remain in effect until Appellant’s guilty plea some 14-and-a-half
months later. A little over six months after AFOSI initiated an investigation
into Appellant’s conduct with SC, Appellant’s commander preferred a single
charge and two specifications against Appellant. Appellant was accused of sex-
ual assault by penetrating SC’s vulva with his fingers and abusive sexual con-
tact by intentionally touching SC’s buttocks with his hand, both with the intent
to arouse Appellant’s sexual desire in violation of Article 120b, UCMJ. A pre-
liminary hearing conducted in accordance with Article 32, UCMJ, 10 U.S.C. §
832, was held 47 days after preferral. Three weeks after the hearing, a military
judge who was designated as the preliminary hearing officer (PHO) issued his
report finding probable cause to conclude that Appellant committed the
charged offenses, but nonetheless recommended the charge and its specifica-
tions be withdrawn.

3
 United States v. Cummings, No. ACM 39446

The PHO’s recommendation was based, in part, on SC’s submission of a
memorandum through Appellant’s trial defense counsel, in which she declared
her “desire and intention to not appear as a witness in any trial for this case.”
It was also based on SC’s verbal and written declarations that she made up the
allegation to manipulate her mother into breaking up with Appellant so that
SC could maintain a relationship with a boyfriend. SC claimed in the memo-
randum that Appellant was drunk on the night in question and that, after fall-
ing asleep on the couch, Appellant’s hand fell onto her buttocks. At that mo-
ment, SC decided to place Appellant’s hand inside her pants. Appellant then
woke up, noticed his hand down SC’s pants, she claimed, and that explains
why Appellant believed he had touched her inappropriately. The general court-
martial convening authority did not follow the PHO’s recommendation as to
disposition. Instead, the convening authority followed the advice of his staff
judge advocate who concluded the charge and its specifications were warranted
by the evidence and ordered the offenses be referred to trial by general court-
martial.
At an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session held by the military
judge 4 at least 11 weeks before trial on the merits, Appellant moved to sup-
press his statements made to the AFOSI agents on grounds that the Govern-
ment could not corroborate his admissions without SC’s testimony. The Gov-
ernment moved to admit SC’s initial pretrial statements to the AFOSI agents
under the residual exception to the rule against hearsay. 5 The military judge
heard testimony, considered evidence on the motions, and recessed court until
trial reconvened approximately two-and-a half months later.
On the Friday morning before trial was scheduled to reconvene, the mili-
tary judge informed counsel for both parties by email of his expected ruling on
the Defense’s motion to suppress and the Government’s motion to admit SC’s
pretrial statements under the residual hearsay exception. The military judge
indicated he “was expecting to deny the defense motion to suppress” and ”ex-
pect[ed] to grant, in part at least, the [G]overnment’s motion to admit residual
hearsay,” but withheld ruling until such time as he received evidence that SC
would testify contrary to her initial allegations.
During the next four days, Appellant and the convening authority came to
an agreement on the terms of a PTA. Two key concessions made by the conven-
ing authority were to reduce the jeopardy Appellant faced from a charge and

4The military judge who presided at Appellant’s court-martial was not the same judge
designated by the convening authority as the PHO.
5 Mil. R. Evid. 807, Residual Exception.

4
 United States v. Cummings, No. ACM 39446

two specifications of sexual assault and abusive sexual contact to a single
charge and specification of assault consummated by a battery, 6 and to place a
limitation on Appellant’s sentence. Appellant agreed to plead guilty with the
guarantee that if a punitive discharge were adjudged, it would be no more se-
vere than a bad-conduct discharge. Additionally, in exchange for Appellant’s
plea, the convening authority agreed to disapprove any portion of the sentence
that included confinement in excess of 225 days.
Pursuant to the PTA, on the day before trial reconvened, Appellant’s com-
mander preferred an additional charge and specification alleging assault con-
summated by a battery upon SC, a child under the age of 16 years, in violation
of Article 128, UCMJ. On the day of trial, the additional charge was referred
to be tried with the initial charge and specifications. Appellant was promptly
served with the referred additional charge, and waived both the right to a pre-
liminary hearing and the five-day statutory waiting period.
In accordance with the PTA, Appellant pleaded guilty, unconditionally, to
the additional charge and specification, and not guilty to the initial charge and
its specifications. At trial, the military judge inquired into the voluntariness of
Appellant’s plea, accepted his plea, and found Appellant guilty of the addi-
tional charge and its specification. Also in accordance with the PTA, the charge
and two specifications alleging sexual assault and abusive sexual conduct of
SC were withdrawn and dismissed by the convening authority without preju-
dice. Appellant raised none of the assigned errors during clemency or otherwise
during post-trial processing of his case.

II. DISCUSSION
A. Voluntary and Provident Plea of Guilty
On appeal, Appellant claims his plea of guilty was involuntary, and there-
fore improvident, owing to improper pretrial conduct by the Government in-
cluding prosecutorial misconduct. We are not persuaded.
1. Additional Background
As part of his obligation under the PTA, Appellant agreed to “waive all wai-
vable motions,” to include his “request for relief based upon Article 13,

6 Both the initial and additional charge alleged the element in aggravation that Appel-
lant’s conduct involved a child under the age of 16 years.

5
 United States v. Cummings, No. ACM 39446

UCMJ.” 7 On the record, Appellant affirmatively waived relief from illegal pre-
trial punishment and waived his motion to suppress his admissions to the
AFOSI agents based on lack of corroboration. Appellant further agreed on the
record to waive a motion pursuant to Mil. R. Evid. 412 to admit evidence of
SC’s sexual behavior, 8 and a motion to merge the Article 120b, UCMJ, offenses
for unreasonable multiplication of charges. Appellant averred he had the ben-
efit of the advice of counsel in waiving the motions and that he was not forced
to enter into that term of the PTA.
Appellant also agreed as part of the PTA to enter into a “reasonable stipu-
lation of fact that supports the offense to which [Appellant was] pleading
guilty.” Accordingly, on the same day as Appellant’s plea, he stipulated with
the Government that on the evening in question he was watching television in
the home he shared with SC, her mother, and other members of their family.
SC had gotten into an argument with her mother about her relationship with
her boyfriend and came to speak with Appellant. SC lay across Appellant’s lap
and gave him a hug. Appellant became upset about what SC told him about
her relationship with her boyfriend. He stated words to the effect that SC
would “have to stop doing that stuff,” she was “a little girl trapped in a woman’s
body” and “playing with fire,” and he would protect SC like a father should.
Appellant stipulated that when he returned after getting up to use the re-
stroom, SC got back on his lap and had lain on his chest. Appellant put his
hand down SC’s pants and under her underwear and touched her buttocks with
his hand. Appellant then said he “can’t be this guy” and removed his hand.
After he pulled his hand out he said, “I can’t do this, it isn’t me.”
Appellant further stipulated he felt a “huge feeling of guilt and sorrow im-
mediately,” and then looked at SC and told her “don’t do what you did with the
boy ever again.” Before Appellant went to bed, he went to SC’s bedroom “and
told her not to tell her mom.” Finally, Appellant stipulated, he “didn’t say what
he wanted to say: that he had really messed up and just did the most regretta-
ble[,] terrible thing he had ever done, and wanted SC to forgive him.”
On appeal, Appellant submitted a declaration detailing the harassment he
alleges his family suffered during the Government’s investigation. Appellant

7 Appellant’s motion for relief under Article 13, UCMJ, 10 U.S.C. § 813, claimed he was
illegally punished by his commander’s no-contact order. Appellant requested three
days credit against any sentence to confinement for each day he was subject to the
order. The motion was served on the military judge and opposing counsel, but was not
marked as an appellate exhibit or included in the record of trial.
8Like Appellant’s Article 13, UCMJ, motion, the Mil. R. Evid. 412 motion was served
on the military judge and opposing counsel, but was not marked as an appellate exhibit
or included in the record of trial.

6
 United States v. Cummings, No. ACM 39446

avers AFOSI agents came to the family home the night before a prosecuting
attorney personally served a subpoena to compel his wife to appear with SC at
his court-martial. Appellant alleges the agents shone lights in windows, vio-
lently beat on doors and windows, and opened the door, but the family dog
deterred the agents from entering completely and they retreated. Appellant
also claims that when the prosecuting attorney served the subpoena, he told
Appellant’s wife that SC would be required to appear in court whether she
wanted to or not because the decision whether or not to testify was not SC’s to
make. Appellant relays this incident “was never discussed during court.” Ap-
pellant also alleges in his declaration that his unit was neither supportive nor
responsive, and in some cases was seemingly indifferent, to his needs and the
needs of his family.
2. Analysis
Appellant asks this court to find his plea of guilty improvident and set aside
the findings and sentence, thereby putting Appellant’s case back in the posture
it was in before he decided to plead guilty. We find Appellant’s plea waived
claims of improper conduct by the Government during the investigation of Ap-
pellant’s case, and his claim of prosecutorial misconduct, which we address
separately, is not supported by the record. We further find Appellant’s plea
was voluntary and provident.
a. Allegations of Improper Government Conduct during the In-
vestigation of Appellant’s Case
Appellant claims the Government acted improperly because his “false con-
fession was made under emotional manipulation and suggestive interrogation
tactics.” Appellant also claims misconduct in that his will was overborne be-
cause 445 days had passed from the time of the alleged offense to his plea,
during which time he was subject to a no-contact order that forbade unsuper-
vised time with his family, and because he would have to register as a sex of-
fender if convicted of the initial charge and either of its specifications. Appel-
lant also avers that SC’s special victims’ counsel told SC that she should not
recant because “she could get in trouble,” and implies that the Government’s
investigation should have ceased once SC recanted. Appellant generally avers
misconduct in that the Government “continually harassed his family.”
An unconditional guilty plea generally waives any objection related to the
factual question of guilt. Rule for Courts-Martial (R.C.M.) 910(j); see also
United States v. Mooney, 77 M.J. 252, 254 (C.A.A.F. 2018). “Objections that do
not relate to factual issues of guilt are not covered by this bright-line rule, but
the general principle still applies: An unconditional guilty plea generally
‘waives all defects which are neither jurisdictional nor a deprivation of due
process of law.’” United States v. Schweitzer, 68 M.J. 133, 136 (C.A.A.F. 2009)

7
 United States v. Cummings, No. ACM 39446

(quoting United States v. Rehorn, 26 C.M.R. 267, 268–69 (C.M.A. 1958)). The
United States Court of Appeals for the Armed Forces (CAAF) has observed
“[w]hile the waiver doctrine is not without limits, those limits are narrow and
relate to situations in which, on its face, the prosecution may not constitution-
ally be maintained.” United States v. Bradley, 68 M.J. 279, 282 (C.A.A.F. 2010)
(citations omitted).
Consequently, an appellant who has entered an unconditional guilty plea
ordinarily may not raise on appeal an error that was waived at trial. United
States v. Chin, 75 M.J. 220, 222 (C.A.A.F. 2016) (citing United States v. Cam-
pos, 67 M.J. 330, 332–33 (C.A.A.F. 2009); United States v. Gladue, 67 M.J. 311,
313 (C.A.A.F. 2009)). However, this “ordinary” rule does not apply to statutory
review by a military court of criminal appeals (CCA) under Article 66(c),
UCMJ, 10 U.S.C. § 866(c). Id. “Article 66(c) empowers CCAs to consider claims
. . . even when those claims have been waived.” Id. (quoting United States v.
Chin, 2015 CCA LEXIS 241, at *9–11 (A.F. Ct. Crim. App. 12 Jun. 2015) (un-
pub. op.), aff’d, 75 M.J. 220 (C.A.A.F. 2016)). This is because CCAs maintain
an “affirmative obligation to ensure that the findings and sentence in each such
case are ‘correct in law and fact . . . and should be approved.’” Id. at 223 (quot-
ing United States v. Miller, 62 M.J. 471, 472 (C.A.A.F. 2006) (alteration in orig-
inal)).
“If an appellant elects to proceed with Article 66, UCMJ, review . . . . the
CCAs are required to assess the entire record to determine whether to leave
an accused’s waiver intact, or to correct the error.” Id. (citation omitted). This
requirement does not mean an unconditional guilty plea is without meaning or
effect. Id. “Waiver at the trial level continues to preclude an appellant from
raising the issue on appeal,” Id. (citing Gladue, 67 M.J. at 313–14), and an
“unconditional guilty plea continues to serve as a factor for a CCA to weigh in
determining whether to nonetheless disapprove a finding or sentence.” Id.
Before entering his unconditional plea, Appellant moved for relief claiming
his commander’s no-contact order constituted illegal pretrial punishment un-
der Article 13, UCMJ. However, an unlawful pretrial punishment motion is
one of those matters that may be waived in a PTA, United States v. McFadyen,
51 M.J. 289, 291 (C.A.A.F. 1999), and Appellant acknowledged that by his plea
of guilty he gave up the right to relief he may have received. 9 Appellant also
acknowledged on the record that he was not forced to agree to that term of the
PTA. In a related claim, Appellant asserts for the first time on appeal that his

9 Appellant did so with the understanding that he could ask the military judge to con-
sider the effect of his commander’s no-contact order to decide an appropriate sentence.

8
 United States v. Cummings, No. ACM 39446

will was overborne because he was subject to the no-contact order from the
time of the alleged offense to his plea, or 445 days. Although Appellant was not
in any way inhibited from seeking relief at trial for violation of his right to a
speedy trial, 10 he has not identified specific factors that would enable him to
prevail, and waived our review of speedy trial concerns by his plea. See United
States v. Tippit, 65 M.J. 69, 75–76 (C.A.A.F. 2007). By offering an uncondi-
tional plea, Appellant also waived his motion to suppress his admissions to the
AFOSI agents that he claims lacked corroboration and was obtained by the
Government’s use of suggestive interrogation techniques. See, generally,
United States v. Hinojosa, 33 M.J. 353, 354 (C.M.A. 1991) (citations omitted)
(unconditional guilty pleas foreclose appellate relief from an unsuccessful mo-
tion to suppress an allegedly coerced confession). Appellant also affirmatively
waived this motion on the record.
We have considered Appellant’s complaints of improper Government con-
duct along with Appellant’s claims of undue influence by SC’s special victims’
counsel, and general averments of harassment. We conclude these claims are
neither jurisdictional nor did they deny Appellant the due process of law, and
thus are waived insofar as our consideration of the factual question of his guilt
on appeal. R.C.M. 910(j); Schweitzer, 68 M.J. at 136. We have determined to
leave Appellant’s waiver intact. Chin, 75 M.J. at 222.
b. Allegations of Prosecutorial Misconduct
Included among Appellant’s claims of improper Government conduct are
claims of prosecutorial misconduct. Appellant’s brief in support of the assigned
error claims it was improper for the convening authority to refer the initial
charge alleging sexual assault and abusive sexual contact after SC recanted
her allegations and the PHO recommended the convening authority dismiss
the charge and specifications. 11 Appellant similarly claims it was improper for
the trial counsel to subpoena SC’s mother to appear at trial with SC against
her daughter’s wishes. Appellant generally avers impropriety in that “the Gov-
ernment pressed forward on the sexual assault allegations even without evi-
dence to support the charge.”
“Prosecutorial misconduct is ‘action or inaction by a prosecutor in violation
of some legal norm or standard, e.g., a constitutional provision, a statute, a

10Several authorities give rise to an appellant’s right to a speedy trial. This right has
been recognized under the Fifth and Sixth Amendments, U.S. CONST. amend. V, VI;
Articles 10 and 33, UCMJ, 10 U.S.C. §§ 810, 833; R.C.M. 707; and case law. United
States v. Vogan, 35 M.J. 32, 33 (C.M.A. 1992).
Appellant avers, “this whole situation should have been dropped as the Article 32[,
11

UCMJ,] hearing judge originally suggested.”

9
 United States v. Cummings, No. ACM 39446

Manual rule, or an applicable professional ethics canon.’” United States v.
Pabelona, 76 M.J. 9, 11–12 (C.A.A.F. 2017) (quoting United States v. Meek, 44
M.J. 1, 5 (C.A.A.F. 1996)). It is described as “behavior by the prosecuting at-
torney that ‘overstep[s] the bounds of that propriety and fairness which should
characterize the conduct of such an officer in the prosecution of a criminal of-
fense.’” Id. (alteration in original) (quoting Berger v. United States, 295 U.S.
78, 84 (1935)). We have recognized the convening authority’s prosecutorial role
in referring charges. United States v. Arindain, 65 M.J. 726, 728–31 (A.F. Ct.
Crim. App. 2007), aff’d, 66 M.J. 192 (C.A.A.F. 2008) (mem.); cf. United States
v. Wiesen, 57 M.J. 48, 50 (C.A.A.F. 2002) (member selection is an exercise of
prosecutorial discretion). If prosecutorial misconduct occurred, then we must
determine whether “the legal norm violated . . . actually impacted on a sub-
stantial right of an accused (i.e., resulted in prejudice).” United States v. Gol-
ston, 53 M.J. 61, 64 (2000) (quoting Meek, 44 M.J. at 5).
Appellant asserted the allegations here for the first time after his trial, thus
we employ the fact-finding authority granted to this court under Article 66,
UCMJ, 10 U.S.C. § 866, in reviewing information necessary to decide the ques-
tion. 12 We also assume arguendo that Appellant’s claim of pretrial prosecuto-
rial misconduct is not waived by Appellant’s unconditional plea of guilty. See,
e.g., United States v. Atchak, ACM 38526, 2015 CCA LEXIS 328, at *24–27
(A.F. Ct. Crim. App. 10 August 2015) (unpub. op.) (declining to find an appel-
lant’s plea of guilty waived the “prosecutorial misconduct aspect” of an unlaw-
ful command influence motion involving a trial counsel’s pre-trial conduct),
aff’d on other grounds, 75 M.J. 193 (C.A.A.F. 2016).
Here, the convening authority referred the initial charge and specifications
on the recommendation of his staff judge advocate that there were “reasonable
grounds to believe that an offense triable by a court-martial ha[d] been com-
mitted and the accused committed it.” R.C.M. 601(d)(1). We find the convening
authority acted in conformity with this standard when he made his referral
decision independent of the PHO’s recommendation to withdraw the initial
charge. See also R.C.M. 405(a), Discussion (“Determinations and recommenda-
tions of the preliminary hearing officer are advisory.”). While Appellant seems
to imply that a convening authority cannot refer a charge after an alleged vic-
tim recants an allegation of sexual assault, Appellant cites no authority for

12 In deciding questions of prosecutorial misconduct, we normally review the military
judge’s findings of fact under the clear error standard. United States v. Argo, 46 M.J.
454, 457 (C.A.A.F. 1997). We decide de novo whether those facts constitute prosecuto-
rial misconduct rising to the level of prejudicial error as a matter of law. Id. (citing
Meek, 44 M.J. at 5–6; United States v. Sullivan, 42 M.J. 360, 363 (1995)).

10
 United States v. Cummings, No. ACM 39446

such a result and we find none. We therefore conclude that the convening au-
thority did not engage in misconduct in exercising discretion to refer the initial
charge and specifications to trial by general court-martial.
Appellant similarly cites no legal norm or standard that was violated by
the trial counsel’s undertaking to prosecute Appellant in spite of SC’s recanta-
tion, to include issuing and then serving a subpoena to secure her presence at
trial. We find the applicable standards from the Air Force Rules of Professional
Conduct (AFRPC) are not violated. It is “professional misconduct when a law-
yer engage[s] in conduct involving dishonesty, fraud, deceit, or misrepresenta-
tion; [or] engage[s] in conduct that is prejudicial to the administration of jus-
tice.” Air Force Instruction 51-110, Professional Responsibility Program, At-
tachment 2 (AFRPC), Rules 8.4(c) and (d) (5 Aug. 2014). The trial counsel did
not violate the AFRPC by moving to admit SC’s pre-recantation statements
under the residual hearsay exception, R.C.M. 906(b)(13) (authorizing prelimi-
nary rulings on admissibility of evidence), or issuing and then serving a sub-
poena to secure the presence of a witness. R.C.M. 703(e)(2)(C)(2)(b) and (D).
We therefore find no merit to Appellant’s claims of prosecutorial misconduct.
c. Providence of Plea of Guilty
Appellant’s allegations are also in conflict with his statements on the record
at trial and call for speculation as to how they invalidate his plea. “Once the
military judge has accepted a plea as provident and has entered findings based
on it, an appellate court will not reverse that finding and reject the plea unless
it finds a substantial conflict between the plea and the accused’s statements or
other evidence of record.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F.
1996). “A ‘mere possibility’ of such a conflict is not a sufficient basis to overturn
the trial results.” Id. (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991)). Moreover, we will not speculate on the existence of facts that might
invalidate a plea especially where the matter raised post-trial contradicts an
appellant’s express admissions on the record. United States v. Johnson, 42 M.J.
443, 445 (C.A.A.F. 1995).
At trial, the military judge conducted a comprehensive inquiry not just of
Appellant’s plea, but, inter alia, his right to counsel and the PTA and stipula-
tion of fact that Appellant signed. After the military judge read the elements
and definitions of assault consummated by battery upon a child under the age
of 16 years, Appellant acknowledged he understood that the elements and def-
initions accurately described his conduct. Appellant described in his own words
how SC sat on his lap and he grabbed SC’s buttocks under her clothes with his
hand. Appellant volunteered he used very poor judgment, immediately felt re-
morseful, and pulled his hand out from under SC’s pants. The military judge
reviewed the stipulation of fact, which Appellant averred was accurate.

11
 United States v. Cummings, No. ACM 39446

Appellant now alleges his plea was involuntary, but Appellant himself re-
futed this allegation by his statements at trial. He acknowledged that he was
pleading guilty voluntarily and of his own free will, that no one had threatened
him or in any way tried to force him to plead guilty, that he had a legal and
moral right to plead not guilty, and that he could withdraw his plea at any time
before sentence was announced. The military judge asked Appellant, “[A]re you
pleading guilty not only because you have a hope to receive a lighter sentence,
but also because you are convinced that you are in fact guilty?” Appellant re-
plied, “I am.”
Similarly, during the detailed colloquy with the military judge about the
terms of the PTA, Appellant agreed that no one forced him in any way to enter
into an agreement with the convening authority and that no one made any
promises to him that were not written into the agreement in an effort to induce
him to plead guilty. He indicated that he had discussed the PTA with his coun-
sel, was satisfied with their advice, he entered into the agreement of his own
free will, and that no one tried to force him into making the PTA. He acknowl-
edged pleading guilty not only because he hoped to receive a lighter sentence,
but also because he was convinced that he was, in fact, guilty.
Having examined the entire record with particular attention to Appellant’s
sworn responses during the plea inquiry, we are satisfied that Appellant know-
ingly, intelligently, and consciously waived his rights against self-incrimina-
tion, to a trial of the facts by a court-martial, and to confront the witnesses
against him. The military judge did not abuse his discretion in accepting Ap-
pellant’s plea and had no evident basis for rejecting it. Accordingly, we con-
clude Appellant’s plea of guilty was voluntary and provident.
B. Effective Assistance of Counsel
In a related but separate attack on his conviction, Appellant claims he was
denied effective assistance of counsel because his trial defense counsel pres-
sured him to plead guilty despite the fact that the Government had no evidence
to corroborate his admissions he made to the AFOSI agents, much less any
evidence that he assaulted his daughter. Appellant was prejudiced, he claims,
because he was found guilty and forfeited both his freedom and 18 years of
military service. If it were not for the pressure to plead guilty, he claims, “it is
highly likely that the charge would have been dropped because the victim in
the case had recanted and informed the Government that she had lied about
Appellant assaulting her.” 13 We are not persuaded by Appellant’s claims.

13 Brief of Appellant’s appellate counsel.

12
 United States v. Cummings, No. ACM 39446

1. Additional Background
On appeal, Appellant submitted a declaration along with the assignment
of error alleging prejudice from deficient performance of his trial defense coun-
sel. Appellant declared that before he decided to plead guilty, his counsel led
him to believe his case would be “easy to win” or that counsel could get the
charges dropped altogether. Appellant said he had been assured time and time
again that once SC had recanted her allegation, the Government’s case was
weakened because it revolved around his false confession “made under extreme
emotional distress and manipulation.”
Appellant declared he was shocked when, the day before trial reconvened,
his counsel suggested he try for a plea deal. Nonetheless, Appellant averred he
told his counsel “to come back later once they had worked out some sort of
deal.” Appellant explained he felt he had no choice but to take a plea deal be-
cause his counsel told him that if he was found guilty of the Article 120b,
UCMJ, offenses he would likely go to jail for several years and would have to
register as a sex offender. 14 Appellant declared his counsel told him the deal to
plead to the less severe Article 128, UCMJ, offense of assault consummated by
battery on a child under the age of 16 years was his “best and safest choice.”
Appellant claimed his counsel “had given up and lost the will to fight,” after
assuring him his “case should be a relatively easy win.” Hence, Appellant now
claims he was inadequately represented because his counsel pressured him
into pleading guilty.
In response to Appellant’s claims, we ordered and received declarations
from Appellant’s trial defense counsel, Mr. DC and Major (Maj) RB, 15 which
refute Appellant’s claims and are generally consistent with one another. Both
counsel averred they never made any assurance to Appellant that his case
would be relatively “easy to win.” Mr. DC’s declaration explained that Appel-
lant was well advised that there were “significant headwinds in his case in-
cluding a confession to [AF]OSI, a fresh complaint that largely corroborated
his confession, no credible motive for the complainant to lie, and an outcry wit-
ness.” Mr. DC explained that the Defense consulted with an expert and exam-
ined the literature on the topic of false confessions, and that it was self-evident
from the video the AFOSI agents made of Appellant’s confession “that the con-
duct of [the agents] was well within the constraints” of the law. Mr. DC ex-
plained Appellant “wanted us to explore alternative dispositions” after “the

14In the words Appellant attributes to one of his counsel, he felt pressured to plead
guilty so that he would not become “a red dot on a map.”
15 Major RB held the rank of captain at the time of Appellant’s trial.

13
 United States v. Cummings, No. ACM 39446

judge indicated [SC’s] recantation testimony was a necessary predicate for any
outcry testimony” from SC’s friend.
Major RB’s declaration explained in detail the change in the posture of the
Government’s case after the parties received the military judge’s expected rul-
ing on the admissibility of SC’s pre-recantation out-of-court statements. Major
RB relayed that the military judge indicated that if SC testified consistent with
her recantation, the military judge was going to admit pursuant to the residual
hearsay exception SC’s outcry statements which she made to her friend the
morning after the incident in question. The military judge similarly indicated
that SC’s statements to the AFOSI agents and the nurse examiner were poten-
tially admissible if Appellant’s confrontation rights were satisfied. Major RB
explained that the military judge’s anticipated ruling had two effects. First,
SC’s out-of-court statements would corroborate Appellant’s confession to the
AFOSI agents and overcome the defense motion to suppress that was before
the court. Second, the trial counsel “now needed SC as a witness,” and, Major
RB surmised, trial counsel would serve a subpoena to compel SC’s appearance
against her will.
Major RB explained that he and Mr. DC informed Appellant of the devel-
opments, that Appellant’s confession would be admissible, and SC would be a
witness. Major RB declared, “[d]uring multiple discussions over the course of
the next couple of days, leading through the weekend before trial, we discussed
the way ahead with [Appellant],” to include “potential litigation strategy” “in
light of the unfavorable ruling, as well as SC’s now-definite involvement in the
case.” Major RB elaborated,
During these multiple conversations, we explained [Appellant’s]
different options to him; we also reminded [Appellant] that he
still had the opportunity to pursue some type of alternate dispo-
sition or pretrial agreement if he desired to do so. [Appellant]
asked that we engage with the Government on the matter. We
did as [Appellant] asked, ultimately securing the pretrial agree-
ment. . . . At no point from the morning . . . when we learned of
the judge’s ruling [ ] through the afternoon . . . when we went on
the record at trial [ ] did [Appellant] direct that we stop pursuing
a pretrial agreement or that we withdraw from the pretrial
agreement. Had [Appellant] done so, we would have followed his
direction immediately; we were prepared to litigate the case.
Attached to Major RB’s declaration was documentation of Appellant’s deci-
sion to plead guilty dated the same day Appellant entered his pleas. Appellant
acknowledged, inter alia, his decision to plead guilty pursuant to the terms of
the PTA. Appellant also acknowledged that a finding of guilty to the Article
120b, UCMJ, offenses would subject him to a maximum term of confinement

14
 United States v. Cummings, No. ACM 39446

of 50 years and registration as a sex offender. Appellant acknowledged he was
aware these “decisions were [his] alone to make,” and that he had “knowingly
and voluntarily” made them.
2. Law
The Sixth Amendment to the United States Constitution 16 guarantees an
accused the right to effective assistance of counsel. Gilley, 56 M.J. 113, 124
(C.A.A.F. 2001). In assessing the effectiveness of counsel, we apply the stand-
ard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984) (citation
omitted), and begin with the presumption of competence announced in United
States v. Cronic, 466 U.S. 648, 658 (1984) (citations and footnote omitted). See
Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000)). Accordingly, we “will not second-guess the strategic or tacti-
cal decisions made at trial by defense counsel,” United States v. Mazza, 67 M.J.
470, 475 (C.A.A.F. 2009) (quoting United States v. Anderson, 55 M.J. 198, 202
(C.A.A.F. 2001)), and consider “whether counsel’s performance fell below an
objective standard of reasonableness.” United States v. Gutierrez, 66 M.J. 329,
331 (C.A.A.F. 2008) (citations omitted).
We review allegations of ineffective assistance of counsel de novo. Gooch,
69 M.J. at 362 (citing Mazza, 67 M.J. at 474). “To prevail on an ineffective
assistance claim, the appellant bears the burden of proving that the perfor-
mance of defense counsel was deficient and that the appellant was prejudiced
by the error.” United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (citing
Strickland, 466 U.S. at 698). We utilize the following three-part test to deter-
mine whether the presumption of competence has been overcome:
1. Are appellant’s allegations true; if so, “is there a reasonable
explanation for counsel’s actions”?
2. If the allegations are true, did defense counsel’s level of advo-
cacy “fall measurably below the performance . . . [ordinarily ex-
pected] of fallible lawyers”?
3. If defense counsel was ineffective, is there “a reasonable prob-
ability that, absent the errors,” there would have been a differ-
ent result?
Gooch, 69 M.J. at 362 (alteration in original) (quoting United States v. Polk, 32
M.J. 150, 153 (C.M.A. 1991)).
“An appellant must establish a factual foundation for a claim of ineffective-
ness; second-guessing, sweeping generalizations, and hindsight will not suf-
fice.” United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005) (citing United

16 U.S. CONST. amend. VI.

15
 United States v. Cummings, No. ACM 39446

States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002)); see also United States v. Alves,
53 M.J. 286, 289 (C.A.A.F. 2000); United States v. Gray, 51 M.J. 1, 19 (C.A.A.F.
1999). When an appellant alleges deficient performance to challenge a plea of
guilty, the appellant must show, under the second prong of the Strickland test,
a reasonable probability that, absent counsel's deficient performance, he would
have pleaded not guilty. United States v. Ginn, 47 M.J. 236, 246–47 (C.A.A.F.
1997) (citing generally Hill v. Lockhart, 474 U.S. 52 (1985)).
3. Analysis
Appellant paints a stark contrast between the posture of his defense in the
months before trial on the merits and the days immediately prior, but presents
no information to explain the external events unfolding during the weekend
before trial that led to his decision to plead guilty. The declarations from his
trial defense counsel explain these events and, along with the record, unequiv-
ocally demonstrate that Appellant’s decision to plead guilty was an informed
decision by an appellant who was not forced, coerced, or pressured by his coun-
sel.
Appellant’s counsel informed him of the risk of litigating the Article 120b,
UCMJ, allegations. Appellant knew, based on his agreement with the conven-
ing authority, he could be sentenced to a bad-conduct discharge and 225 days
confinement, which was substantially less exposure than he would face had he
contested the charge and specifications that were initially referred. Whatever
second thoughts Appellant may now have about his decision to enter into a
PTA with the convening authority and plead guilty, we do not find the advice
and assessment of the changed litigation risk he received from his counsel con-
stituted deficient performance. Rather than constituting “pressure,” the candid
advice he received reveals counsel who were concerned for their client and of-
fered well-reasoned advice based on their experience as defense attorneys.
Regarding the soundness of counsel’s advice to accept the plea deal, we find
neither deficient performance nor prejudice. Consideration of a plea deal was
a suitable alternative to minimize the jeopardy Appellant faced from a litigated
trial. This was an especially reasonable tactic considering the strength of the
Government’s case after the military judge’s anticipated ruling allowing the
admission of the out-of-court statements SC made prior to her recantation, and
its attendant prospect of an unfavorable outcome for Appellant.
We find Appellant’s claim of ineffective assistance of counsel to be without
merit from not just an assessment of the declarations, but from an assessment
of the trial itself. Appellant specifically told the military judge that he had
enough time and opportunity to discuss his case and the PTA with his counsel.
He stated that he had consulted fully with his counsel, had received the full
benefit of their advice, and that he was satisfied both with his counsel and that

16
 United States v. Cummings, No. ACM 39446

their advice was in his best interest. We find Appellant’s statements at trial as
well as the other matters in the record are consistent with and demonstrate
the soundness of their advice.
The record in Appellant’s case, particularly Appellant’s sworn statements
at trial, as well as the post-trial declarations of his trial defense counsel and
the memorandum that Appellant initialed and signed the same day he pleaded
guilty, compellingly demonstrates the improbability of Appellant’s ineffective
assistance of counsel allegation. Ginn, 47 M.J. at 248. We find no reason to
reject Appellant’s sworn statements on the record and find no reason to order
an evidentiary hearing. Id. at 244–45; see United States v. DuBay, 37 C.M.R.
411, 413 (C.M.A. 1967). We further conclude from our review of the record of
proceedings, appellate pleadings, and post-trial declarations, that Appellant
was neither deprived of a fair trial nor was the trial outcome unreliable. See
Strickland, 466 U.S. at 698. Accordingly, we find Appellant’s claims of ineffec-
tive assistance of counsel to be without merit.
C. Sentence Severity
Appellant claims that his sentence to a bad-conduct discharge is unduly
severe considering the facts and circumstances of his offense, his character,
and his 18 years and 8 months on active duty. Appellant avers that the facts
surrounding the incident do not warrant a bad-conduct discharge. He notes he
did not strike SC, there were no immediate or lasting injuries, and he was in-
toxicated. Appellant also notes he served on ten deployments and that his ser-
vice record was spotless and distinguished, having never received any discipli-
nary action during his Air Force career before the incident.
Appellant’s brief in support of the assigned error asks us to look past his
plea of guilty to the fact that SC made a written statement that Appellant did
not assault her. Appellant’s brief renews his attack on the conviction claiming
that SC made up the allegation so that she could see her boyfriend and, in a
declaration to the court, maintains the punishment he received “was too harsh
especially considering [he] did not commit any of the alleged offenses.” Appel-
lant also avers the military judge appeared to have inappropriately sentenced
Appellant for sexually assaulting SC instead of assault under Article 128,
UCMJ.
1. Additional Background
Before inquiring into the legal and factual sufficiency of Appellant’s plea,
the military judge explained that anything Appellant told him may be used
against him in the sentencing portion of the trial. Appellant acknowledged that
he understood. The military judge similarly explained that the stipulation of
fact Appellant agreed to and signed would be used to determine if Appellant

17
 United States v. Cummings, No. ACM 39446

was in fact guilty and an appropriate sentence as well. Appellant acknowl-
edged he understood and agreed to both uses on the record and in the stipula-
tion he signed.
2. Law
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we] find correct in law and
fact and determine[ ], on the basis of the entire record, should be approved.”
Article 66(c), UCMJ. “We assess sentence appropriateness by considering the
particular appellant, the nature and seriousness of the offense[s], the appel-
lant’s record of service, and all matters contained in the record of trial.” United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam)
(citations omitted). While we have great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exercises
of clemency. United States v. Nerad, 69 M.J. 138, 142–48 (C.A.A.F. 2010).
3. Analysis
As a threshold matter, we find no reason to conclude from the record that
the military judge punished Appellant for the sexual assault and abusive sex-
ual contact offenses that were withdrawn and dismissed by the convening au-
thority.
Appellant’s plea admitted the elements of the charged offense. Appellant
told the military judge he grabbed SC’s buttocks under her pants and under-
wear, and that his behavior showed “very poor judgment.” As related in our
resolution of Appellant’s first assignment of error, Appellant stipulated he put
his hand down SC’s pants and touched her buttocks with his hand. Appellant
remarked he “can’t be this guy,” pulled out his hand and said, “I can’t do this,
it isn’t me.” Appellant further stipulated he immediately felt “guilt and sorrow”
for what he had done and later went to SC’s bedroom “and told her not to tell
her mom.” Finally, Appellant stipulated, he realized “he had really messed up
and just did the most regrettable[,] terrible thing he had ever done, and wanted
SC to forgive him.”
Appellant faced a maximum punishment of a dishonorable discharge, total
forfeiture of pay and allowances, reduction to the grade of E-1, and confinement
for two years. Trial counsel recommended a sentence of a bad-conduct dis-
charge, confinement for ten months, and reduction to the grade of E-1. Trial
defense counsel argued that no punitive discharge should be adjudged. Having
given individualized consideration to Appellant, as well as the nature and se-
riousness of his offense as shown by the facts and circumstances, his record of
service, and all other matters contained in the record of trial, we find Appel-
lant’s approved sentence of a bad-conduct discharge, confinement for four

18
 United States v. Cummings, No. ACM 39446

months, and reduction to the grade of E-4 is not inappropriately severe as a
matter of law.

III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED. 17

FOR THE COURT

CAROL K. JOYCE
Clerk of the Court

17Although not raised by the parties, we note an error in the court-martial order (CMO)
where the charged article is incorrectly identified as Article “120” rather than “120b.”
We also note an error in the inclusion of names of children ages 16 years and younger,
which must be replaced by initials in the recitation of the action in the expurgated
CMO, Air Force Instruction 51–201, Administration of Military Justice, ¶ 9.7.1.1 (8
Dec. 2017), notwithstanding general guidance that “the convening authority’s action
should be verbatim.” Id. at ¶ 9.8.2.4. We direct the publication of a corrected CMO to
remedy these errors.

19