UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges
UNITED STATES, Appellee
Vv.
Private E1 LOUIS F. ESPINOSA III
United States Army, Appellant
ARMY 20190539
Headquarters, Fort Stewart
David H. Robertson, Military Judge
Colonel Steven M. Ranieri, Staff Judge Advocate
For Appellant: Major Kyle C. Sprague, JA; Major Loraima Morciglio, JA (on brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Craig J. Schapira, JA; Captain Amanda L. Dixson, JA (on
brief).
25 November 2020
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
BURTON, Senior Judge:
Appellant’s case is pending review before this court pursuant to Article 66,
Uniform Code of Military Justice (UCMJ). Appellant claims his defense counsel
were ineffective for allowing appellant to plead guilty beyond the requirements of
the pretrial agreement and for arguing for a bad-conduct discharge during sentencing
proceedings. As we explain below, we find appellant’s claims are meritless.
A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of four specifications of incapacitation for duty from drug
use and one specification of prevention of authorized seizure of property, in
ESPINOSA-ARMY 20190539
violation of Articles 112 and 13le, UCMJ, 10 U.S.C. §§ 912, 93le. The military
judge sentenced appellant to a bad-conduct discharge and 141 days of confinement.
The convening authority took no action.!
BACKGROUND
Appellant initially agreed to plead guilty to Charge II and its Specifications
{incapacitation for duty from drug use), and plead not guilty to the Specifications of
Charges I and III (violation of a lawful general regulation and prevention of
authorized seizure of property, respectively). In exchange for his guilty plea, the
convening authority agreed the government would present no evidence as to The
Specification of Charge I, thereby resulting in a finding of not guilty to Charge I.
The pretrial agreement allowed the government to offer evidence to prove The
Specification of Charge III.
At court-martial, appellant entered a plea of guilty to the Specifications of
Charge II, and also pleaded guilty to The Specification of Charge III. During
argument on sentencing, defense counsel argued for a bad-conduct discharge.
Appellant now claims his trial defense counsel were ineffective for failing to comply
with the plea agreement and arguing for a bad-conduct discharge. Additionally,
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant claims
his trial defense counsel were ineffective for failing to properly advise appellant on
the implications of pleading guilty to The Specification of Charge III.
LAW AND DISCUSSION
We review claims of ineffective assistance of counsel (IAC) de novo. United
States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015); United States v. Datavs, 71 M.J.
420, 424 (C.A.A.F. 2012). “In order to prevail on a claim of ineffective assistance
of counsel, an appellant must demonstrate both (1) that his counsel’s performance
was deficient, and (2) that this deficiency resulted in prejudice.” United States v.
‘In light of United States v. Coffman, 79 M.J. 820, 823 (Army Ct. Crim. App. 2020),
we find the convening authority’s failure to act on appellant’s sentence as required
by the applicable version of Article 60, UCMJ, while error, was not jurisdictional in
nature. In regards to prejudice, we note appellant waived his rights to submit
matters to the convening authority pursuant to Rule for Courts-Martial (R.C.M.)
1106(e)(3). Thus, we find the error did not materially prejudice appellant’s
substantial rights. See Coffman, 79 M.J. at 824 (citing United States v, Alexander,
61 M.J. 266, 269 (C.A.A.F. 205)) (holding procedural errors are tested for material
prejudice to a substantial right).
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Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). We may address these prongs in any order because appellant
must satisfy both prongs to prevail. Green, 68 M.J. at 362 (citations omitted). In
appellant’s case, we need only address the first prong.
Under the first Strickland prong, appellant must show “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Strickland, 466 U.S. at 687. The relevant issue is
whether counsel’s conduct failed to meet an objective standard of reasonableness or
whether it was outside the “wide range of professionally competent assistance.” Jd.
at 690.
Appellant did not submit a signed affidavit supporting his claims of IAC. As
we explain below, both of appellant’s [AC claims are compellingly refuted by the
record. As such, we determined affidavits from appellant’s trial defense counsel
were unnecessary. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997}
(affidavits are unnecessary if the record as a whole compellingly demonstrates the
improbability of appellant’s claim).
In regards to appellant’s claim his defense counsel were ineffective for failing
to comply with the pretrial agreement, we find no evidence defense counsel were
deficient. Prior to accepting appellant’s plea, the military judge discussed with
appellant and the government the inconsistency between the pretrial agreement and
appellant’s plea. While looking at the pretrial agreement, the military judge referred
appellant to paragraph 2(a) in the agreement and stated to appellant, “[y]ou have
pled differently than is required [in the pretrial agreement].” The military judge
confirmed with appellant it was his desire to plead guilty to The Specification of
Charge III.2, Appellant also signed a document entitled “Accused’s Plea” with his
defense counsel the day prior to trial indicating his pleas to The Specification and
Charge HI as guilty. The military judge then asked the government, “[e]ven though
the accused’s plea differs from what’s required in the plea agreement, are you
satisfied that the accused has met the conditions required of [his plea] in his
agreement with the convening authority?” The government confirmed appellant’s
different plea met the conditions of his pretrial agreement with the convening
authority. After this discussion, appellant agreed with the military judge that his
decision to plead guilty was made voluntarily and of his own free will.
* See United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (if accused sets up
matter inconsistent with his plea, the military judge must resolve the inconsistency
or reject the plea); see also UCMJ art. 45(a); R.C.M. 910(h)(2).
ESPINOSA-ARMY 20190539
In light of appellant’s unequivocal written and verbal statements to the
military judge that he wished to plead guilty to The Specification of Charge III, we
find nothing deficient in defense counsel’s performance in allowing appellant to
proceed. See United States v. Moss, 73 M.J. 64, 65 (quoting Florida v. Nixon, 543
U.S. 175, 187 (2004)) (“An accused ‘has the ultimate authority to determine whether
to plead guilty’... .”).
Similarly, we find no support for appellant’s claim his defense counsel were
ineffective in arguing for a bad-conduct discharge during sentencing proceedings.
Prior to counsel’s sentencing argument, appellant signed a statement acknowledging
he understood the consequences of a bad-conduct discharge and explicitly
authorizing his defense counsel to state in argument that appellant desired to be
discharged with a bad-conduct discharge. See United States v. Dresen, 40 M.J. 462,
465 (C.M.A. 1994) (a defense counsel who intends to ask for any punitive discharge
must “make a record that such advocacy is pursuant to the accused’s wishes”).
Further, the military judge confirmed with appellant that he consented to his defense
counsel arguing for a bad-conduct discharge. Thus, we find defense counsel were
not deficient in arguing for a bad-conduct discharge during sentencing argument.
Lastly, pursuant to Grostefon, appellant claims his defense counsel were
ineffective for failing to properly advise appellant regarding the implications of
pleading guilty to The Specification of Charge III. Appellant’s statements to the
military judge compellingly refute this claim. The military thoroughly explained to
appellant the meaning and effect of his guilty plea. Appellant indicated he
understood and wanted to proceed with the guilty plea. See United States v. Perron,
58 M.J. 78, 82 (C.A.A.F. 2003) (military judge has duty during providence inquiry
to ensure the accused understands the nature of his guilty plea and is willingly
pleading guilty).
After appellant’s providence inquiry, the military judge stated to appellant
that the maximum punishment based solely on his guilty plea was a dishonorable
discharge, confinement for six years, total forfeiture of all pay and allowances, and
reduction to the grade of E-1. Appellant replied that he understood the maximum
punishment for his guilty plea. The military judge then confirmed that the minimum
and maximum sentence limitations in the plea agreement still applied even though
appellant pleaded guilty beyond what was required by the pretrial agreement. The
pretrial agreement included a sentence minimum and maximum for The Specification
of Charge III. Finally, the military judge informed appellant that he could withdraw
his plea at any time prior to the announcement of appellant’s sentence. Appellant
indicated he understood and at no time requested to withdraw his plea. Considering
appellant’s express statements to the military judge that he understood the meaning
and effect of his guilty plea, we find no evidence defense counsel were deficient in
advising appellant regarding the implications of his guilty plea.
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CONCLUSION
On consideration of the entire record, we hold the findings of guilty and the
sentence correct in law and fact. Accordingly, the findings of guilty and the
sentence are AFFIRMED’,
Judge RODRIGUEZ and Judge FLEMING concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
3 Block 31, Statement of Trial Results, is amended to reflect “Yes” in response to the
question “Has the accused been convicted of a crime punishable by imprisonment for
a term exceeding one year (18 U.S.C. § 922(g)(1)?”