United States v. Penalosa, ACM 38949

Background

Appellant, a U.S. Air Force Academy cadet, was convicted at a general court-martial (military judge alone) of multiple drug offenses involving MDMA, Modafinil, and LSD, consistent with a pretrial agreement (PTA).
The convening authority approved a dismissal and, per the PTA, 36 months confinement (judgment originally adjudged 42 months).
Specification 2 charged wrongful use of LSD “on divers occasions” between Aug 1 and Nov 30, 2014; at trial Appellant pleaded guilty except for the phrase “on divers occasions,” to which he pleaded not guilty.
During providence inquiry and in a stipulation of fact, Appellant admitted a single instance of LSD use (after Parent’s Weekend/football game on or about Aug 30, 2014); the government did not present proof of multiple uses.
Appellant later appealed raising three issues: (1) alleged ambiguity in the verdict after excising “on divers occasions”; (2) ineffective assistance for advising acceptance of the PTA rather than litigating a suppression motion of cell-phone text messages; (3) ineffective assistance for advising acceptance of the PTA rather than litigating an Article 13 pretrial-punishment claim.
The court affirmed findings and sentence, rejecting ambiguity and both ineffective-assistance claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Verdict ambiguity after excepting "on divers occasions" from Specification 2	The excision created ambiguity because the military judge did not specify which incident formed the basis for the conviction	Appellant pleaded guilty to one use and provided a stipulation/providence admission identifying that single incident	No ambiguity; record shows which single use formed the basis; conviction stands
Counsel ineffective for advising PTA rather than litigating suppression of cell-phone texts	Would have insisted on trial if he knew texts could be suppressed; suppression might reduce sentence or change outcome	Counsel advised PTA after evaluating litigation risks, independent evidence against Appellant, and substantial benefits of PTA (reduced exposure, deferred confinement)	No deficient performance or prejudice; suppression unlikely to have succeeded or been case dispositive
Counsel ineffective for advising PTA rather than litigating Article 13 pretrial-punishment claim	Counsel failed to pursue a meritorious Article 13 motion alleging illegal pretrial punishment	Counsel investigated, believed Article 13 motion lacked reasonable probability of success and potential remedies were inferior to PTA benefits	No reasonable probability Article 13 motion would succeed; Appellant also contradicted record statements denying pretrial punishment; claim fails
Prejudice standard for guilty-plea ineffective assistance	Appellant argues he would have rejected PTA and gone to trial if properly advised	Court applies Hill/Bradley standard requiring reasonable probability Appellant would have insisted on trial and different outcome	Appellant did not meet prejudice prong; no reasonable probability of different result

Key Cases Cited

United States v. Walters, 58 M.J. 391 (C.A.A.F.) (verdict ambiguity principles)
United States v. Ross, 68 M.J. 415 (C.A.A.F.) (ambiguity arises when record does not indicate which incident forms conviction)
United States v. Datavs, 71 M.J. 420 (C.A.A.F.) (ineffective-assistance review de novo)
United States v. Green, 68 M.J. 360 (C.A.A.F.) (Strickland two-prong standard applied in military cases)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (deficient performance and prejudice framework)
Hill v. Lockhart, 474 U.S. 52 (U.S. 1985) (prejudice standard for guilty-plea ineffective-assistance claims)
United States v. Bradley, 71 M.J. 13 (C.A.A.F.) (applicant must show reasonable probability he would have insisted on trial)
United States v. Jameson, 65 M.J. 160 (C.A.A.F.) (burden to show reasonable probability of prevailing on omitted motion)
United States v. Ginn, 47 M.J. 236 (C.A.A.F.) (challenge contradicted by statements in the record may be rejected)