United States v. Staff Sergeant CORY PENVEN

• Court: Army Court of Criminal Appeals
• Decided: October 21, 2024
• Docket: 20230087
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before FLEMING, PENLAND, and MORRIS Appellate Military Judges

UNITED STATES, Appellee v. Staff Sergeant CORY N. PENVEN United States Army, Appellant

ARMY 20230087

Headquarters, Fort Carson Jacqueline L. Emanuel, Military Judge Colonel Pia W. Rogers, Staff Judge Advocate

For Appellant: Major Devin V. Vickers, JA; Catherine M. Cherkasky, Esquire (on brief and reply brief).

For Appellee: Colonel Christopher B. Burgess, JA; Colonel Jacqueline J. DeGaine, JA; Major Chase C. Cleveland, JA; Captain Anthony J. Scarpatti, JA (on brief).

21 October 2024

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PENLAND, Judge:

We have carefully considered appellant’s assigned errors. None of them merits relief, but one warrants brief discussion. ! ”

' We have also given full and fair consideration to the matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and determine they merit neither discussion nor relief.

2 An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of one specification of sexual assault, in violation of Article 120, Uniform ’ Code of Military Justice, 10 U.S.C. § 920 (2019) [UCMJ]. The military judge sentenced appellant to a dishonorable discharge and confinement for four years. PENVEN — ARMY 2023008

Appellant contends his trial defense counsel were ineffective by failing to confront the victim on a myriad of topics.?> We ordered affidavits and considered them in light of the evidence at trial and applicable Sixth Amendment jurisprudence.* Mindful of these standards and applying them to this record, we find the affidavits responsively demonstrate that appellant’s trial defense team made abundantly reasonable tactical decisions.

CONCLUSION

On consideration of the entire record, the finding of guilty and sentence are AFFIRMED.

Senior Judge FLEMING and Judge MORRIS concur.

FOR THE COURT:

JAMES W. HERRING, JR. Clerk of Court

3 To wit: (1) her purported motive to fabricate the allegation against appellant; (2) purported evidence of her pre-assault “overtly sexualized behavior” with appellant; and (3) inconsistent claims made by the victim the morning after the assault.

4 E.g., United States v. Furth, 81 M.J. 114, 117 (C.A.A.F. 2021) (this court conducts de novo review for ineffective assistance claims), United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (appellant bears the burden of establishing both deficient performance and prejudice), United States v. Scott, 81 M.J. 79, 86 (C.A.A.F. 2021) (“this Court does not engage in ‘second-guessing tactical decisions’ that might be characterized as ‘mere Monday-morning quarterbacking.’” (internal citations omitted)), United States v. Ginn, 47 M.J. 236, 245 (C.A.A.F. 1997) (holding additional proceedings under Article 66(f) to ascertain whether deficient performance occurred are warranted only if questions of material fact exist).