UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private JACOB B. POWELL
United States Army, Appellant
ARMY 20150775
Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
Clinton J. Johnson, Military Judge
Colonel David E. Mendelson, Staff Judge Advocate
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Katherine L. DePaul, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Captain Austin L. Fenwick, JA (on brief).
31 January 2017
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SUMMARY DISPOSITION
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FEBBO, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of sexual abuse of a child, in violation of
Article 120b of the Uniform Code of Military Justice, 10 U.S.C. § 920b (2012 &
Supp. I 2014) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge, confinement for twelve months, and reduction to the grade of E-
1. Pursuant to the pretrial agreement, the convening authority approved only ten
months of confinement, but otherwise approved the sentence as adjudged.
This case is before the court for review under Article 66(c), UCMJ. Appellant
raises one assignment of error that his defense counsel was ineffective in the post-
trial phase of his courts-martial by limiting appellant’s request for clemency in his
Rule for Courts-Martial [hereinafter R.C.M.] 1105 matters. Although we find that
the defense counsel incorrectly stated the convening authority’s clemency powers,
the Staff Judge Advocate Post-Trial Recommendation (SJAR) and Addendum
properly advised the convening authority that Article 60, UCMJ, did not limit the
POWELL—ARMY 20150775
convening authority’s discretion to disapprove, commute, or suspend any part of the
adjudged sentence. We find appellant failed to show a reasonable probability that,
but for counsel's error, the result of the post-trial proceeding would have been
different. Therefore, we find that appellant has not made a "colorable showing of
possible prejudice" by the misstatement of Article 60, UCMJ, and affirm the
findings and sentence. Additionally, we find those matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), are
without merit.
BACKGROUND
In April 2014, appellant sent lewd texts and a naked picture of himself with
an erect penis to a Ms. KL. Appellant knew Ms. KL was under the age of sixteen
when he sent the lewd texts and photograph to Ms. KL.
The National Defense Authorization Act (NDAA) of Fiscal Year 2014
changed the authority of convening authorities to take action on certain sentences
under Article 60, UCMJ. Pub. L. No. 113-66, 127 Stat. 672 (2013). In particular, a
convening authority could not “disapprove, commute, or suspend in whole or in part
an adjudged sentence of confinement for more than six months or a sentence of
dismissal, dishonorable discharge, or a bad conduct discharge” except under certain
limited circumstances and became effective on 24 June 2014. 1 Id. at 956. Executive
Order 13696 promulgated the corresponding changes to R.C.M. 1107. Exec. Order.
No. 13696, 80 Fed. Reg. 35,783 (17 June 2015). Since appellant’s offenses occurred
in April 2014, the new limitations on the convening authority’s action did not apply
to appellant’s court-martial. Thus the convening authority had discretion to
disapprove some or all of appellant’s sentence to confinement. R.C.M. 1107(d)(1)
(2012 ed.).
In January 2016, as part of appellant’s R.C.M. 1105 matters, his defense
counsel erroneously included the following statement to the convening authority:
The Changes [sic] to Article 60, UCMJ, mean that you cannot grant
PVT Powell any relief in the form of early release in order that he may
see the birth of his child.
1
The law provided two exceptions: the convening authority may take favorable
action on the sentence upon the recommendation of trial counsel, based upon
“substantial assistance” of an accused in the investigation or prosecution of another
person, or in accordance with the terms of a pretrial agreement. UCMJ art.
60(c)(4)(B) and (C). Here, the government recommended no clemency and appellant
pleaded guilty with a pretrial agreement limiting confinement to ten months.
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POWELL—ARMY 20150775
Instead of asking the convening authority for a reduction in his sentence beyond the
ten-month term of his pretrial agreement, appellant renewed a previously denied
request for deferrals and waivers of his reduction in rank and forfeiture of pay for
six months for the benefit of his spouse, children, and unborn child.
Prior to convening authority taking final action, the staff judge
advocate (SJA), in both the SJAR and Addendum, advised the convening
authority properly:
Based on the date of the commission of the offenses for which there is
a finding of guilty, R.C.M. 1105 does not limit your discretion and
prerogative to dismiss a finding of guilty or to disapprove, commute, or
suspend any part of the adjudged sentence.
The convening authority denied appellant’s request to defer the reduction to E-1 as
well as the request to waive the automatic reduction to E-1 and automatic forfeiture.
Appellant states his main goal for clemency was to request that the convening
authority disapprove confinement in excess of what was agreed upon in his pretrial
agreement so he could be present for the birth of his daughter.
LAW AND DISCUSSION
The Sixth Amendment guarantees an accused the right to effective assistance
of counsel. United States v. Captain, 75 M.J. 99, 102 (C.A.A.F. 2016). This
guarantee extends to assistance during the post-trial phase of a court-martial. United
States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). We review claims that an
appellant did not receive effective assistance of counsel de novo. Captain, 75 M.J.
at 102.
"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." Id. at 102 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). When assessing Strickland's first prong,
courts "must indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." United States v. Datavs, 71 M.J.
420, 424 (C.A.A.F. 2012) (quoting Strickland, 466 U.S. at 689). When assessing
Strickland's second prong, "appellant must show a reasonable probability that, but
for counsel's errors, there would have been a different result." Captain, 75 M.J. at
103 (citing United States v. Quick, 59 M.J. 383, 387-87 (C.A.A.F. 2004)).
In the context of an allegation of ineffective assistance during the post-trial
phase, because of the highly discretionary nature of the convening authority’s
clemency power, appellant meets this burden if he makes "some colorable showing
of possible prejudice." United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999) (citing
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POWELL—ARMY 20150775
United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)). See also United States
v. Rosenthal, 62 M.J. 261, 263 (C.A.A.F. 2005). However, there is no per se or
bright line rule establishing ineffective assistance of counsel when clemency matters
are not submitted on behalf of an appellant. Courts must determine if an appellant
has made a “colorable showing that he was denied the opportunity to put before the
[convening authority] matters that could have altered the outcome.” United States v.
Lowe, 58 M.J. 261, 264 (citing United States v. Anderson, 53 M.J. 374, 378
(C.A.A.F. 2000)). An appellant does not make a colorable showing of possible
prejudice by "sheer speculation." United States v. Brown, 54 M.J. 289, 293
(C.A.A.F. 2000).
We agree that the defense counsel was deficient in his performance when he
misunderstood the convening authority’s power to take action under Article 60,
UCMJ. However, after consideration of the record of trial, we find appellant has not
made a "colorable showing of possible prejudice." Thus he has not satisfied the
second prong of the Strickland test as applied in the post-trial context. With regard
to the failure of the defense counsel to properly explain the application of Article
60, UCMJ, the convening authority obtains legal advice and recommendations from
the SJA. The SJAR and Addendum properly explained the scope of clemency
available to the convening authority.
This case is not one where counsel failed to submit any post-trial matters.
Appellant avers that the convening authority should have been asked for a sentence
reduction so he could see the birth of his daughter due on 13 April 2016. However,
this motivation for reduction was clear from the letters and ultrasound in the R.C.M.
1105 and 1106 matters. Based on the pregnancy and financial hardship on his
spouse, appellant requested deferral of the adjudged reduction in rank and waiver of
automatic forfeitures. After being correctly advised by the SJA the date of the
offense did not limit the convening authority’s discretion to grant clemency, the
convening authority specifically denied these requests for deferral and waiver and
approved the sentence to confinement in accordance with the pretrial agreement,
thus denying any implicit clemency request.
Given the seriousness of the offenses, the favorable terms of the pretrial
agreement, the proper advice by the SJA on the clemency rules, and denial of the
request for lesser-forms of clemency, appellant has not made a “colorable showing
of possible prejudice” that the convening authority would have granted a sentence
reduction if requested by appellant and his defense counsel. There is no possible
prejudice flowing from the defense counsel’s misstatement of the application of
Article 60, UCMJ.
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POWELL—ARMY 20150775
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
Judge MULLIGAN and Judge WOLFE concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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