United States v. Mar ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39708 (f rev)
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UNITED STATES
Appellee
v.
Mamadou S. MAR
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 29 June 2022
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Military Judge: Jennifer E. Powell; Andrew R. Norton (remand).
Sentence: Sentence adjudged on 25 April 2019 by GCM convened at Nel-
lis Air Force Base, Nevada. Sentence entered by military judge on 19
May 2019 and reentered on 4 January 2021: Bad-conduct discharge,
confinement for 12 months, and reduction to E-1.
For Appellant: Major Ryan S. Crnkovich, USAF; Major David A. Schia-
vone, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Morgan
R. Christie, USAF; Major Anne M. Delmare, USAF; Major Peter F. Kel-
lett, USAF; Major John P. Patera, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, KEY, and MERRIAM, Appellate Military Judges.
Judge MERRIAM delivered the opinion of the court, in which Chief
Judge JOHNSON and Senior 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This is an unpublished opinion and, as such, does not serve as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.
________________________
United States v. Mar, No. ACM 39708 (f rev)
MERRIAM, Judge:
A general court-martial composed of a military judge alone found Appellant
guilty, in accordance with his pleas and a pretrial agreement (PTA),1 of one
specification of dereliction of duty, two specifications of wrongful use of mari-
juana, two specifications of wrongful use of cocaine, one specification of wrong-
ful use of psilocybin mushrooms, one specification of wrongful use of 3,4-meth-
ylenedioxymethamphetamine (ecstasy), one specification of wrongful distribu-
tion of marijuana, one specification of wrongful possession of marijuana, one
specification of solicitation of distribution of ecstasy, and one specification of
breaking restriction, in violation of Articles 92, 112a, and 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 934.2 The military judge
sentenced Appellant to a bad-conduct discharge, confinement for 16 months,
1 Effective 1 January 2019, Article 53a of the Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 853a, as enacted by Section 5237 of the Military Justice Act of 2016 (MJA
2016), a division of the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, §§ 5001–5542, 130 Stat. 2000, 2894–2968 (2016), created a form of
agreement between a convening authority and an accused known as a “plea agree-
ment.” Under Executive Order 13,825, § 5, a new version of the Rules for Courts-Mar-
tial (R.C.M.) took effect on 1 January 2019, prior to the referral, pretrial agreement,
and trial in Appellant’s case. 2018 Amendments to the Manual for Courts-Martial,
United States, 83 Fed. Reg. 9889, 9890 (8 Mar. 2018). Implementing the new Article
53a, UCMJ, the version of R.C.M. 705 that took effect on 1 January 2019 refers to
agreements between a convening authority and the accused as “plea agreements,” not
“pretrial agreements.” However, Executive Order 13,825, § 10, also provided that any
change to sentencing procedures made by, inter alia, Article 53a, UCMJ, including
rules implementing, inter alia, Article 53a, UCMJ, would apply only to cases in which
all specifications allege offenses committed on or after 1 January 2019. Because this
case involves specifications alleging offenses committed before and after 1 January
2019, Article 53a, UCMJ, and R.C.M. 705 to the Manual for Courts-Martial, United
States (2019 ed.) (2019 MCM), do not apply to this case. We find the applicable R.C.M.
governing Appellant’s agreement with the convening authority in this case to be the
version of R.C.M. 705 in the Manual for Courts-Martial, United States (2016 ed.) (2016
MCM) and that reference to a “pretrial agreement,” rather than a “plea agreement,” is
appropriate. Appellant has asserted no error or prejudice regarding the form of his
agreement with the convening authority, and we find none.
Unless otherwise noted, all references in this opinion to the Rules for Courts-Martial
are to the 2019 MCM, except references to R.C.M. 705, which shall be to the 2016 MCM.
2 Two of the eight specifications alleging violations of Article 112a, UCMJ, assert of-
fenses that occurred on or after 1 January 2019. All other specifications in this case
assert offenses completed before 1 January 2019. Except when referring to the two
specifications alleging offenses occurring on or after 1 January 2019, all references in
this opinion to the punitive articles of the UCMJ are to the 2016 MCM. Unless other-
wise noted, all other references in this opinion to the UCMJ are to the 2019 MCM.
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United States v. Mar, No. ACM 39708 (f rev)
and reduction to the grade of E-1. Pursuant to the PTA, the convening author-
ity reduced the period of confinement to 12 months. Appellant received 108
days of pretrial confinement credit.
Appellant originally submitted the case to this court on its merits, with no
specific assignment of error. We subsequently specified two issues for briefing
by counsel for both parties:
I.
In light of Rule for Courts-Martial (R.C.M.) 705(c)(1)(b), did the
military judge err when she:
A. Failed to advise Appellant that his agreement to “waive all
waivable motions” could not be enforced to prevent him from
raising an R.C.M. 707 speedy trial motion;
B. Implied that “in order to get the benefit” of his pretrial agree-
ment, Appellant had to “give up making these motions,” which
included an R.C.M. 707 speedy trial motion; and
C. Advised Appellant that his failure to “waive all waivable mo-
tions,” implicitly including his R.C.M. 707 speedy trial motion,
would result in the cancelation of his pretrial agreement?
If so, is appellant entitled to relief?
II.
Did Appellant receive ineffective assistance of counsel when
trial defense counsel failed to seek relief for a potential violation
of Appellant’s right to speedy trial under [R.C.M.] 707? If so, is
Appellant entitled to relief?
United States v. Mar, No. ACM 39708, 2020 CCA LEXIS 441, at *2 n.2 (A.F.
Ct. Crim. App. 10 Dec. 2020) (per curiam) (unpub. op.).
During our initial review of this case we determined the convening author-
ity had failed to take action on the sentence as required by Executive Order
13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Article 60, UCMJ,
10 U.S.C. § 860. As a result, we remanded Appellant’s case to the Chief Trial
Judge, Air Force Trial Judiciary, for corrective action. See Mar, unpub. op. at
*8–9. The successor convening authority executed a new Decision on Action
memorandum, dated 29 December 2020, and the military judge then issued a
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United States v. Mar, No. ACM 39708 (f rev)
corrected entry of judgment (EoJ), dated 4 January 2021.3 We find the new
decision on action and EoJ remedied the errors identified in this court’s earlier
opinion.
Upon return of the record to this court, Appellant submitted a supple-
mental brief to this court “preserv[ing] and maintain[ing]” the issues in his
brief on specified issues, and raising two additional assignments of error: (1)
whether Appellant’s guilty plea for negligently failing to refrain from drinking
alcohol while under the legal drinking age, in violation of Article 92, UCMJ,
was improvident because the source of the duty—Nevada state law—does not
actually proscribe the acts and circumstances Appellant pleaded guilty to; and
(2) in the alternative, whether Appellant’s trial defense counsel was ineffective
when he acquiesced to a pretrial agreement that required Appellant to improv-
idently plead guilty to an offense based upon an erroneous understanding of
state law even though the preliminary hearing officer’s report explicitly high-
lighted this deficiency in the charged offense. Now considering the specified
issues and Appellant’s assignments of error, we find no error materially preju-
dicial to Appellant’s substantial rights, and we affirm the findings and sen-
tence.
I. BACKGROUND
Appellant used marijuana on divers occasions between 1 March 2018 and
31 December 2018, and once again between 1 January 2019 and 7 January
2019; used cocaine on divers occasions between 1 May 2018 and 31 December
2018, and once again between 1 January 2019 and 7 January 2019; used ec-
stasy on divers occasions between 1 December 2017 and 30 June 2018; and
ingested psilocybin mushrooms between 1 March 2018 and 30 June 2018. In
addition to this wrongful drug use, Appellant distributed marijuana to other
Airmen on divers occasions between 22 June 2018 and 24 June 2018, and
wrongfully possessed marijuana in his dorm room on 21 August 2018. In Octo-
ber 2018, Appellant drank alcohol despite being under the age of 21 years. On
divers occasions between 31 December 2017 and 15 April 2018, Appellant so-
licited a civilian to distribute ecstasy to him. Finally, on divers occasions be-
tween 30 and 31 December 2018, Appellant broke the restriction to limits that
3 In our initial review and remand, we noted the Statement of Trial Results (STR) and
entry of judgment (EoJ) erroneously indicated that Charge I constituted a violation of
Article 86, UCMJ, 10 U.S.C. § 886. See United States v. Mar, No. ACM 39708, 2020
CCA LEXIS 441, at *4 (A.F. Ct. Crim. App. 10 Dec. 2020) (per curiam) (unpub. op.).
On remand, the military judge remedied this error by entering a modified EoJ which
correctly reflects that Charge I alleged a violation of Article 92, UCMJ, 10 U.S.C. § 892.
Appellant has made no claim of prejudice due to the errors in the STR and EoJ or any
claim of error in the corrected EoJ, and we find none.
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United States v. Mar, No. ACM 39708 (f rev)
had been imposed upon him by his commander on 21 December 2018. On 7
January 2019, Appellant’s commander ordered him into pretrial confinement,
where he remained until his court-martial on 25 April 2019.
II. DISCUSSION
A. Waiver of Right to Speedy Trial Pursuant to PTA
1. Additional Background
On 26 March 2019, Appellant signed and submitted an offer for a PTA,
which was accepted by the convening authority on 1 April 2019. In paragraph
2.b. of the PTA, Appellant offered to “[w]aive all waivable motions,” a provision
the Defense proposed. Paragraph 5.e.4. further indicated Appellant understood
that the PTA would be “cancelled and of no effect” if Appellant refused “to
waive all waivable motions.”
At trial, the military judge explored the provisions of the PTA with Appel-
lant and trial defense counsel. When the military judge inquired as to the
“[w]aive all waivable motions” provision, the following colloquy occurred:
[Military Judge (MJ)]: Okay. In subparagraph [2.b.], you offer to
waive all waivable motions. That basically means that you give
up the right to make motions that are waivable under the law. I
advise you that certain motions are waived or given up if your
defense counsel does not make the motion before entering your
plea. Some motions, however, such as motions to dismiss or fail-
ure to state an offense can never be given up. Do you understand
that this term of your pretrial agreement means that you give
up the right to make any motion which bylaw [sic] is given up
when you plead guilty?
[Appellant]: Yes, ma’am.
MJ: Defense Counsel, what motions are you not making pursu-
ant to this provision of the pretrial agreement?
[Defense Counsel (DC)]: Yes, ma’am. So first we’re giving up an
[R.C.M.] 707 speedy trial motion. Airman Mar was restricted on
21 December 2018, starting his speedy trial clock. I believe if I
did the math correctly, it was the 21st, so this Saturday would
have been the day that he should have been brought to trial by,
so it would have violated that. So, we’re waving [sic] that wai-
vable motion.
Shortly thereafter, the following exchange occurred:
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United States v. Mar, No. ACM 39708 (f rev)
MJ: Defense Counsel, is there anything else that you want to put
on the record with regards to the factual basis for any motion
covered by this term?
DC: Not to go with the factual basis, ma’am, I just want to make
the distinction that the speedy trial motion would be an [R.C.M.]
707 motion. We’re not raising any sort of Article 10[, UCMJ,] or
other speedy trial motions.
MJ: Thank you. Airman Mar, knowing what your defense coun-
sel and I have told you, do you want to give up making these
motions in order to get the benefit of your pretrial agreement?
[Appellant]: Yes, ma’am.
MJ: Do you have any questions about this provision of your PTA?
[Appellant]: No, ma’am.
(Emphasis added). Later, the military judge reiterated to Appellant, “[Y]our
failure to waive all waivable motions would result in the cancellation of your
PTA and as a result have no effect.”
When discussing whether the pretrial restriction should have been in-
cluded in Blocks 8 and 9 of the charge sheet, trial defense counsel again reit-
erated his position that R.C.M. 707 had been triggered by the 21 December
2018 restriction. In response, trial counsel asserted that the restriction was
“administrative in nature” and “not with an eye towards court-martial, to-
wards any judicial proceedings.”
In the clemency request submitted on Appellant’s behalf, trial defense
counsel again asserted that Appellant’s right to a speedy trial had been vio-
lated and asked the convening authority to “recognize that the Government
violated [Appellant]’s right to a speedy trial as guaranteed by Rule for Courts-
Martial 707.”
We permitted the Government and Appellant to attach declarations to ad-
dress the specified issues noted above.4 Trial defense counsel ultimately sub-
mitted two declarations related to the specified issues. In his first declaration,
4 We have assessed whether we may consider these declarations in light of our superior
court’s decision in United States v. Jessie, 79 M.J. 437 (C.A.A.F. 2020). We conclude
that we may, in line with precedents permitting consideration of affidavits “necessary
for resolving issues raised by materials in the record.” Id. at 444.
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United States v. Mar, No. ACM 39708 (f rev)
dated 21 August 20205 (Counsel’s First Declaration), trial defense counsel as-
serts he recognized a “potential issue” with R.C.M. 707, but “ultimately decided
not to file a motion seeking dismissal of charges under R.C.M. 707” based on
his “legal research, understanding of the law, knowledge of the specific facts of
[Appellant’s] case, [Appellant’s] stated goals, and [Appellant’s] own wishes.”
Trial defense counsel asserts that on or about 26 March 2019, he told Appellant
that an R.C.M. 707 motion would likely succeed, that the remedy could be dis-
missal with prejudice or without prejudice, but that charges likely would be
dismissed without prejudice. Trial defense counsel further declares that he told
Appellant that if charges were dismissed without prejudice “there was no guar-
antee he would be let out [of pretrial confinement] while the [G]overnment
made their decision on what to do next,” and that “the [G]overnment could take
a number of actions including not bringing the charges again, re-filing charges,
or appealing the dismissal to Air Force Court of Criminal Appeals.” Trial de-
fense counsel states after this advice, Appellant indicated that he wanted to
get out of confinement as soon as possible and thought that not making the
motion was the best way forward.
Trial defense counsel indicates he repeated this conversation with Appel-
lant “[a] few days before his trial,” with the same outcome. During this second
conversation, trial defense counsel emphasized to Appellant that if he pleaded
guilty according to his then-existing PTA with the convening authority, Appel-
lant would “forfeit” the motion. Trial defense counsel contends that during this
conversation, he also told Appellant he could file the motion, but Appellant did
not change his opinion. Counsel’s First Declaration does not indicate whether
defense counsel advised Appellant regarding the effect of the “[w]aive all wai-
vable motions” provision of his PTA.
Trial defense counsel later submitted a second declaration, dated 17 Sep-
tember 2020 (Counsel’s Second Declaration), in which he expressed that he
wanted to “further supplement the circumstances discussed in [his] 21 August
2020 declaration.”6 In Counsel’s Second Declaration, trial defense counsel
stated that:
Prior to and during trial, [Appellant] understood that a pretrial
agreement did not prevent the defense from raising an R.C.M.
5 The declaration was initially dated 21 April 2020, but this was later identified as an
error and trial defense counsel stated the correct date was 21 August 2020.
6 Appellant objected to the Government’s motion to attach Counsel’s Second Declara-
tion on the grounds that it was submitted weeks after our deadline. We granted the
Government’s motion to attach Counsel’s Second Declaration. However, we provided
Appellant additional time to file a supplemental brief addressing any new matters.
Appellant declined this opportunity.
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United States v. Mar, No. ACM 39708 (f rev)
707 speedy trial motion. I indicated on the record that an R.C.M.
707 speedy trial violation occurred, however [Appellant] was
foregoing [sic] raising the motion and wished to proceed with the
guilty plea. I wanted to preserve the violation for reviewing au-
thorities, however I did not intend to imply that the pretrial
agreement precluded raising a motion pursuant to R.C.M[.] 707.
In Appellant’s declaration, dated 23 September 2020 (Appellant’s Declara-
tion), Appellant states that he remembers discussing the speedy trial motion
with his trial defense counsel and that trial defense counsel told him the mo-
tion would probably result in his charges being temporarily dismissed and re-
filed. Appellant further recounts agreeing that such an outcome would render
filing a speedy trial motion “a waste of time.” Appellant further states,
I relied on [trial defense counsel’s] opinion that it was very un-
likely that the judge would dismiss the charges with prejudice.
If he would have told me there was a decent chance that the
charges would be dismissed with prejudice, I would not have
agreed to waive the motion. This was also based on my under-
standing that if I wanted a pretrial agreement, I would have to
agree to give up the motion.
I did not know that we could file the speedy trial motion without
cancelling the pretrial agreement I had agreed to. If I had known
that, I would have wanted to try to get my charges dismissed
with prejudice before I pleaded guilty, even if dismissal with
prejudice was very unlikely.
Following our specification of issues, Appellant now asserts he is entitled
to relief related to speedy trial for two reasons. First, he argues the military
judge erred in light of R.C.M. 705(c)(1)(B). Appellant further argues that, but
for the military judge’s error, he would have: (1) litigated a motion to dismiss
the charges with prejudice under R.C.M. 707 had he known that doing so would
not have canceled his PTA; or (2) if given the opportunity to litigate the motion
without invalidating the entire PTA, trial defense counsel still would have ad-
vised Appellant to waive the motion, which would have constituted ineffective
assistance of counsel.
Appellant separately asserts he is entitled to relief due to alleged ineffec-
tive assistance of counsel. Appellant argues trial defense counsel “undersold
the chances of Appellant’s case being dismissed with prejudice to a degree
measurably below the performance ordinarily expected of fallible lawyers, and
failed to recognize that a speedy trial motion—even if it is otherwise wai-
vable—could not be waived because of a PTA term.” Appellant argues he was
prejudiced because if trial defense counsel “had effectively advised Appellant,
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United States v. Mar, No. ACM 39708 (f rev)
Appellant would not have agreed to waive the [R.C.M. 707 speedy trial] motion
and the military judge would have dismissed the charges with prejudice under
R.C.M. 707.”
2. Law
a. Waiver of Right to Speedy Trial as Condition of PTA
The interpretation of a PTA, whether a condition of a PTA violates R.C.M.
705(c)(1)(B), and whether an accused’s right to a speedy trial has been violated
are questions of law we review de novo. See United States v. Tate, 64 M.J. 269,
271 (C.A.A.F. 2007) (citation omitted); United States v. Acevedo, 50 M.J. 169,
172 (C.A.A.F. 1999) (citations omitted).
“A term or condition in a pretrial agreement shall not be enforced if it de-
prives the accused of . . . the right to a speedy trial . . . .” R.C.M. 705(c)(1)(B).
“To the extent that a term in a pretrial agreement violates public policy, it will
be stricken from the pretrial agreement and not enforced.” United States v.
Edwards, 58 M.J. 49, 52 (C.A.A.F. 2003) (citing R.C.M. 705(c)(1)(B) (additional
citation omitted)). “In some cases . . . the presence of an impermissible term
requires us to void the entire agreement and authorize a rehearing.” Tate, 64
M.J. at 272 (citing United States v. Holland, 1 M.J. 58, 60 (C.M.A. 1975)). “In
other cases . . . an impermissible term may be treated as null without impair-
ing the remainder of the agreement.” Id. (citing United States v. McLaughlin,
50 M.J. 217, 218–19 (C.A.A.F. 1999) (a single impermissible term does not ren-
der the entire agreement unenforceable, rather “the Manual merely requires
that these terms will not be enforced”) (citing R.C.M. 705(c)(1)(B))).
Rules for Courts-Martial 707(a) and 707(a)(2) require that an accused “be
brought to trial within 120 days after the . . . imposition of restraint under
R.C.M. 304(a)(2)–(4).” A violation of R.C.M. 707 will result in dismissal of
charges, either “with or without prejudice to the [G]overnment’s right to rein-
stitute court-martial proceedings against the accused for the same offense at a
later date.” R.C.M. 707(d)(1).
Rule for Courts-Martial 304 sets forth types of pretrial restraint and the
circumstances under which pretrial restraint may be imposed. Rule for Court-
Martial 304(a)(2) defines restriction in lieu of arrest as “oral or written orders
directing the person to remain within specified limits” while continuing to per-
form full military duties unless directed otherwise.
“Military law imposes an independent obligation on the military judge to
ensure that the accused understands what he gives up because of his plea and
the accused’s consent to do so must be ascertained.” United States v. Hunter,
65 M.J. 399, 403 (C.A.A.F. 2008) (quoting United States v. Resch, 65 M.J. 233,
237 (C.A.A.F. 2007)). “The accused must know and understand not only the
[PTA]’s impact on the charges and specifications which bear on the plea . . . but
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United States v. Mar, No. ACM 39708 (f rev)
also other terms of the [PTA], including consequences of future misconduct or
waiver of various rights.” Id. (omission in original) (quoting United States v.
Felder, 59 M.J. 444, 445 (C.A.A.F. 2004)) (additional citation omitted). “[A]n
inquiry that falls short of these requirements and fails to ensure the accused
understands the terms of the [PTA] is error.” Id. “When . . . an error is found,
we will reject the providency of a plea only where the appellant demonstrates
a ‘material prejudice to a substantial right.’” Id. (citation omitted).
A military judge’s duties with respect to plea inquiries include ensuring:
(1) “there is a basis in law and fact to support the plea and offense[s] charged;”
(2) the accused understands and accepts the terms of the PTA; (3) the parties
agree to the terms of the agreement; and (4) the terms of the PTA comply with
the law and fundamental notions of fairness. United States v. Soto, 69 M.J.
304, 307 (C.A.A.F. 2011) (citations omitted). “[M]ilitary judges need to be ever
vigilant in fulfilling their responsibility to scrutinize pretrial agreement provi-
sions to ensure that they are consistent with statutory and decisional rules,
and ‘basic notions of fundamental fairness.’” Id. at 307 n.1 (citation omitted).
“In order to ensure that pleas of guilty are not only knowing and voluntary but
appear to be so, detailed procedural rules govern the military judge’s duties
with respect to the plea inquiry.” Id. at 306–07 (citing United States v. King, 3
M.J. 458, 459 (C.M.A. 1977)). The military judge’s inquiry under R.C.M.
910(f)(4) “is part and parcel of the providence of an accused’s plea, and neces-
sary to ensure that an accused is making a fully informed decision as to
whether or not to plead guilty.” Id. at 307.
b. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution7 guarantees an
accused the right to effective assistance of counsel. United States v. Tippit, 65
M.J. 69, 76 (C.A.A.F. 2007); United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F.
2001). In Strickland v. Washington, the Supreme Court of the United States
established that to prevail on an ineffective assistance claim, a convicted de-
fendant bears the burden of proving that: (1) defense counsel’s performance
was deficient; and (2) the defense was prejudiced by the deficient performance.
466 U.S. 668, 698 (1984). Our superior court employs the same test. See United
States v. Carter, 79 M.J. 478, 480 (C.A.A.F. 2020); United States v. Captain, 75
M.J. 99, 103 (C.A.A.F. 2016). We review allegations of ineffective assistance of
counsel de novo. Carter, 79 M.J. at 480 (citing United States v. Bradley, 71 M.J.
7 U.S. CONST. amend. VI.
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United States v. Mar, No. ACM 39708 (f rev)
13, 16 (C.A.A.F. 2012) (additional citation omitted)). “Even under de novo re-
view, the standard for judging counsel’s representation is a most deferential
one.” Harrington v. Richter, 562 U.S. 86, 105 (2011).
When applying Strickland’s first prong, “[j]udicial scrutiny of counsel’s per-
formance must be highly deferential.” Strickland, 466 U.S. at 689; Carter, 79
M.J. at 480. In assessing the effectiveness of counsel, we begin with the pre-
sumption of competence announced in United States v. Cronic. 466 U.S. 648,
658 (1984). See also Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52
M.J. 312, 315 (C.A.A.F. 2000)). Accordingly, an appellant “must surmount a
very high hurdle” to successfully assert ineffective assistance of counsel. Tip-
pit, 65 M.J. at 76 (internal quotation marks and citations omitted). A reviewing
court “must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance” and counsel should be
“strongly presumed to have rendered adequate assistance and made all signif-
icant decisions in the exercise of reasonable professional judgment.” Strick-
land, 466 U.S. at 689–90. To overcome this presumption, “an appellant must
‘show specific defects in counsel’s performance that were unreasonable under
prevailing professional norms.’” Carter, 79 M.J. at 480–81 (internal quotation
marks omitted) (quoting United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F.
2009) (additional citation omitted)). Reviewing courts “do not measure defi-
ciency based on the success of a trial defense counsel’s strategy, but instead
examine ‘whether counsel made an objectively reasonable choice in strategy’
from the available alternatives.” United States v. Akbar, 74 M.J. 364, 379
(C.A.A.F. 2015) (quoting United States v. Dewrell, 55 M.J. 131, 136 (C.A.A.F.
2001) (additional citation omitted)). For this reason, counsel receives “‘wide
latitude . . . in making tactical decisions.’” Id. (quoting Cullen v. Pinholster, 563
U.S. 170, 195 (2011) (additional citation omitted)).
Regarding Strickland’s second prong, to prove prejudice, an appellant
“must show that there is a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been different.” Pin-
holster, 563 U.S. at 189 (quoting Strickland, 466 U.S. at 694); see also United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011). “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694; United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012). A
“reasonable probability” requires a “substantial,” not just “conceivable,” likeli-
hood of a different result. Pinholster, 563 U.S. at 190. When an allegation of
ineffective assistance of counsel is based on a failure to make a motion, “an
appellant ‘must show that there is a reasonable probability that such a motion
would have been meritorious.’” United States v. McConnell, 55 M.J. 479, 482
(C.A.A.F. 2001) (quoting United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F.
1997)).
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3. Analysis
a. Waiver of Right to Speedy Trial as Condition of PTA
R.C.M. 705(c)(1)(B) states that a “term or condition in a pretrial agreement
shall not be enforced if it deprives the accused of . . . the right to a speedy trial
. . . .” The PTA in this case included a provision requiring Appellant to “[w]aive
all waivable motions.” The provision did not explicitly specify the Appellant
was required to waive a speedy trial motion. However, when the military judge
inquired as to which motions the Defense was waiving due to the “[w]aive all
waivable motions” provision in the agreement, trial defense counsel explicitly
stated Appellant was waiving an R.C.M. 707 speedy trial motion.8 Trial de-
fense counsel detailed that the basis of the motion was that Appellant was
placed under pretrial restriction on 21 December 2018, more than 120 days
prior to his arraignment on 25 April 2019.
A “waive all waivable motions” provision is not per se impermissible. See,
e.g., United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (evaluating the
impact of a “waive all waivable motions” PTA provision on the right to complete
appellate review by courts of criminal appeals). However, as our sister service
Courts of Criminal Appeals have observed, it is error for an otherwise permis-
sible term in a PTA to be interpreted and applied in a way to require an accused
to waive a right identified in R.C.M. 705(c)(1)(B). See, e.g., United States v.
Pabon, No. ARMY 20120874, 2014 CCA LEXIS 617, at *2–3 (A. Ct. Crim. App.
21 Aug. 2014) (per curiam) (unpub. op.) (“Although appellant’s pretrial agree-
ment did not contain a term that deprived appellant of the right to a speedy
trial, the military judge erred in interpreting the waiver clause and informing
appellant that the pretrial agreement required appellant to waive a speedy
trial motion pursuant to R.C.M. 707.”); United States v. Benitez, 49 M.J. 539,
540–41 (N.M. Ct. Crim. App. 1998) (explaining a PTA provision “to
waive . . . any and all non-constitutional or non-jurisdictional motions,” alt-
hough not explicitly identifying a speedy trial issue, operated to prevent appel-
lant from raising the speedy trial issue at trial when “[t]he military judge es-
sentially advised the appellant that a speedy-trial motion that was not consti-
tutionally-based could be waived in the pretrial agreement”).
At trial, multiple references by the military judge, trial defense counsel,
and Appellant regarding the effect of the “[w]aive all waivable motions” provi-
sion suggest that they all believed the provision required Appellant to waive a
8 We note that in the stipulation of fact entered into by Appellant and the Government,
both parties recognized that Appellant “knowingly and voluntarily agreed to waive
substantive rights, including . . . alleging that his right to a speedy trial was violated.”
12
United States v. Mar, No. ACM 39708 (f rev)
potential R.C.M. 707 speedy trial motion.9 In several interactions on the rec-
ord, the military judge essentially advised Appellant that the “[w]aive all wai-
vable motions” provision in his PTA required him to waive an R.C.M. 707
speedy trial motion. When the military judge asked trial defense counsel what
motions he was waiving due to the “[w]aive all waivable motions” provision,
trial defense counsel responded, “Yes, ma’am. So first we’re giving up an
R.C.M. 707 speedy trial motion.” Trial defense counsel then proceeded to detail
the basis for the motion. Moments later, the military judge asked Appellant if
he wanted to give up the motions trial defense counsel had referred to “in order
to get the benefit of [his] pretrial agreement.” Appellant responded affirma-
tively. Later, the military judge reiterated to the Appellant that his failure to
waive all waivable motions, implicitly including the R.C.M. 707 motion that
trial defense counsel had identified, would “result in the cancellation of your
pretrial agreement and as a result have no effect.”
In McLaughlin, our superior court found that a term in a PTA which re-
quired the accused to waive his right to a speedy trial was impermissible and
unenforceable. 50 M.J. at 218–19. The United States Court of Appeals for the
Armed Forces (CAAF) concluded that the military “judge should have declared
this speedy trial provision impermissible and unenforceable, while upholding
the remainder of the [PTA]. After so informing appellant, the judge could have
then asked him if he wanted to raise a speedy trial issue.” Id. at 219. Accord-
ingly, in the instant case, upon learning from the trial defense counsel that the
Appellant was waiving an R.C.M. 707 speedy trial motion pursuant to the
“[w]aive all waivable motions” provision, the military judge should have in-
formed Appellant that the provision was unenforceable to prevent him from
raising a speedy trial motion, and then should have asked Appellant whether
he wanted to raise any speedy trial motion. Moreover, the military judge
should not have advised Appellant that “in order to get the benefit” of his PTA,
he had to “give up making” his R.C.M. 707 speedy trial motion.
Our finding that the military judge erred in interpreting, explaining, and
applying the “[w]aive all waivable motions” provision to bar an R.C.M. 707
speedy trial motion does not conclude our inquiry. As the CAAF observed in
McLaughlin, R.C.M. 705(c)(1)(B) only requires that impermissible terms not
be enforced. Id. at 218. Accordingly, the CAAF held that when a PTA contains
an impermissible term waiving an appellant’s right to make speedy trial mo-
tions, to prevail on appeal, an appellant must “set forth sufficient information
to show a colorable speedy trial claim.” Id. In McLaughlin, because the CAAF
found insufficient information in the record to support a colorable speedy trial
9 Trial counsel did not object to, or otherwise comment on, this interpretation.
13
United States v. Mar, No. ACM 39708 (f rev)
claim existed, it concluded the impermissible restriction on raising a speedy
trial claim had not been enforced.
In contrast to the facts in McLaughlin, in this case, the record raises a col-
orable speedy trial claim. R.C.M. 707(a)(2) requires that an accused “be
brought to trial within 120 days after the . . . imposition of restraint under
R.C.M. 304(a)(2)–(4).” Restriction in lieu of arrest is a form of pretrial restraint
defined as “oral or written orders directing the person to remain within speci-
fied limits” while continuing to perform full military duties unless directed oth-
erwise. R.C.M. 304(a)(2). Pretrial confinement is also a form of pretrial re-
straint. R.C.M. 304(a)(4). After Appellant committed numerous offenses, Ap-
pellant’s commander restricted him to base on 21 December 2018, 125 days
before he was arraigned. Appellant broke that restriction once on 30 December
2018 and once on 31 December 2018, but remained subject to the restriction
order continuously until 7 January 2019, when Appellant was ordered into pre-
trial confinement, where he remained until arraignment on 25 April 2019.
These facts raise a colorable speedy trial claim for several of the charges and
specifications under R.C.M. 707, which states that an accused shall be brought
to trial within 120 days after imposition of restraint under R.C.M. 304(a)(2).10
Though we find the record raises a colorable speedy trial claim, the record
does not contain sufficient information for us to determine with certainty that
Appellant’s right to a speedy trial under R.C.M. 707 was, in fact, violated. On
21 December 2018, Appellant’s commander restricted him to “Area 1” of Nellis
Air Force Base (AFB), where Appellant then lived, and to Creech AFB, where
Appellant performed his military duties. As part of this restriction, Appellant
was permitted to leave Nellis AFB only on a shuttle to Creech AFB for the
purpose of performing his military duties. At trial, while discussing whether
10 R.C.M. 707 is offense-specific. R.C.M. 707(b)(2). We do not find a colorable speedy
trial claim regarding offenses that could not have been the basis for the 21 December
2018 restriction, specifically, those offenses occurring after 21 December 2018. Addi-
tionally, offenses occurring less than 120 days prior to arraignment on 25 April 2019
would not be dismissed based on an R.C.M. 707 speedy trial motion. Offenses not im-
plicated by the errors addressed in this opinion consist of Appellant’s wrongful use of
marijuana between 1 March 2018 and 31 December 2018 (Specification 1 of Charge II);
wrongful use of marijuana between 1 January 2019 and 7 January 2019 (Specification
4 of Charge II); wrongful use of cocaine between 1 May 2018 and 31 December 2018
(Specification 5 of Charge II); wrongful use of cocaine between 1 January 2019 and 7
January 2019 (Specification 6 of Charge II); and breaking restriction between 30 De-
cember 2018 and 31 December 2018 (Specification 2 of Charge III). These offenses are
not included in our analysis here. We find no material prejudice to Appellant’s sub-
stantial rights regarding these charges and specifications.
14
United States v. Mar, No. ACM 39708 (f rev)
the charge sheet should include reference to Appellant’s restriction, trial coun-
sel argued that Appellant’s 21 December 2018 restriction was “administrative
in nature” and “not with an eye towards court-martial, towards any judicial
proceedings,” which would not trigger the speedy trial clock. See R.C.M. 304(h).
In pleading guilty to breaking the restriction, Appellant stated he believed his
commander imposed the restriction because of Appellant’s “continued positive
urinalysis tests and alcohol use.” Appellant also stated he believed the re-
striction was for the purpose of maintaining good order and discipline and to
prevent him from using controlled substances. Further facts were not devel-
oped that clarify whether the restriction was pretrial “restraint on a person’s
liberty which is imposed before and during disposition of offenses” for purposes
of R.C.M. 304 and triggering R.C.M. 707(a)(2).11 R.C.M. 304(a). Although the
issue was not fully litigated, the military judge ultimately concluded that the
facts amounted to “restriction in lieu of arrest” under R.C.M. 304 for the pur-
poses of directing that the charge sheet be amended to include identification of
Appellant’s restriction from 21 December 2018 until his pretrial confinement
began on 7 January 2019.
Because the issue was not litigated, the record is relatively quiet as to why
it took 125 days from the imposition of restraint to arraign Appellant. Appel-
lant notes that the Government’s initial trial ready date was 44 days after re-
ferral of charges on 12 March 2019, but the record offers no explanation of this
period. The Article 32 preliminary hearing officer’s report indicates no delays
were requested or granted. The docketing memo in the case, signed by the
Chief Circuit Military Judge, excluded three days from R.C.M. 707 speedy trial
computation.12 But the military judge’s 22 March 2019 scheduling conference
summary and scheduling order neither addresses any speedy trial issues, nor
indicates any awareness by counsel or the military judge that she was setting
an arraignment date for 122 days (125 days, less the three excluded days) after
restriction began or that Appellant was in pretrial confinement. Additionally,
the record is silent as to whether the Defense ever demanded speedy trial or
objected to the military judge setting the arraignment date. Notably, Appel-
lant’s Declaration provides no additional facts on this point.
Related to the military judge’s error in interpreting and applying the
“[w]aive all waivable motions” provision of the PTA in a way that violated
11 Trial defense counsel and Appellant explicitly agreed the restriction did not consti-
tute illegal pretrial punishment under Article 13, UCMJ.
12 The Chief Circuit Military Judge excluded 22–24 April 2019 from speedy trial com-
putation. Ostensibly, this was because the Government indicated it was ready to pro-
ceed to trial on 22 April 2019, defense counsel indicated a ready date of 29 April 2019,
and the parties ultimately agreed to an arraignment on 25 April 2019.
15
United States v. Mar, No. ACM 39708 (f rev)
R.C.M. 705(c)(1)(B) is R.C.M. 910(f)(4)(A)(i)’s requirement that the military
judge inquire to ensure the accused understands the terms of the PTA. Appel-
lant asserts that he did not understand that the “[w]aive all waivable motions”
provision should not have barred an R.C.M. 707 speedy trial motion. An ac-
cused must “know and understand not only the agreement’s impact on the
charges and specifications which bear on the plea . . . but also other terms of
the agreement, including consequences of future misconduct or waiver of vari-
ous rights.” Hunter, 65 M.J. at 403 (omission in original) (quoting Felder, 59
M.J. at 445) (additional citation omitted). “‘[A]n inquiry [by the military judge]
that falls short of these requirements and fails to ensure the accused under-
stands the terms of the agreement is error.’” Id.In Counsel’s Second Declaration, trial defense counsel assures this court
that Appellant, “[p]rior to and during trial . . . understood that a pretrial agree-
ment did not prevent the defense from raising an R.C.M. 707 speedy trial mo-
tion.” While this may have been counsel’s impression of Appellant’s under-
standing, it is inconsistent with the meaning and effect of the “[w]aive all wai-
vable motions” provision as the military judge and trial defense counsel con-
veyed them to the Appellant on the record at trial. We give significant weight
to statements at trial. See, e.g., United States v. Craven, 69 M.J. 513, 515 (A.F.
Ct. Crim. App. 2010) (holding that in determining the meaning of ambiguous
PTA terms, appellate courts should give the greatest weight to the parties’
stated understanding at trial).
To summarize: (1) trial defense counsel told the military judge the Defense
was waiving an R.C.M. 707 speedy trial motion due to the “[w]aive all waivable
motions” provision; (2) the military judge asked Appellant if he wanted to give
up his waivable motions, including the R.C.M. 707 speedy trial motion, “in or-
der to get the benefit of [his] pretrial agreement” (emphasis added); and (3) the
military judge instructed Appellant that his failure to waive all waivable mo-
tions, including the R.C.M. 707 speedy trial motion to which she and trial de-
fense counsel had alluded, would result in the cancellation of his PTA. As dis-
cussed above, each of these statements was incorrect. Moreover, Appellant con-
firmed on the record that he understood that in order to keep his PTA he was
required to waive all waivable motions, which, based on trial defense counsel’s
and the military judge’s commentary on the record, Appellant would reasona-
bly have understood to include the R.C.M. 707 speedy trial motion.
Rather than inquiring to ensure Appellant understood the meaning and
effect of the “[w]aive all waivable motions” provision on his right to raise a
speedy trial motion, the military judge’s inquiry effectively ensured the Appel-
lant did not accurately understand its meaning and effect. Accordingly, we find
the military judge erred in her responsibility under R.C.M. 910(f)(4)(A)(i). See
Soto, 69 M.J. at 307 (the military judge’s inquiry under R.C.M. 910(f)(4) “is
16
United States v. Mar, No. ACM 39708 (f rev)
part and parcel of the providence of an accused’s plea, and necessary to ensure
that an accused is making a fully informed decision as to whether or not to
plead guilty” (citing King, 3 M.J. at 458–59)).
Though we find error under R.C.M. 910(f), Appellant retains the burden
under Article 59(a), UCMJ, 10 U.S.C. § 859(a), to demonstrate material preju-
dice to a substantial right. Felder, 59 M.J. at 446. Here, Appellant has not
averred he would have withdrawn from the PTA or decided to plead not guilty
if he had understood correctly the “[w]aive all waivable motions” provision. The
prejudice he claims is that, had he correctly understood the effect of R.C.M.
705(c)(1)(B), he would have wanted to raise an R.C.M. 707 speedy trial motion.
We evaluate this prejudice in Section II.A.3.c., infra.
b. Trial Defense Counsel’s Performance – Speedy Trial Issue
To prevail on an ineffective assistance claim, Appellant bears the burden
of proving that: (1) the performance of defense counsel was deficient; and (2)
Appellant was prejudiced by the error. See Strickland, 466 U.S. at 698; Carter,
79 M.J. at 480; Captain, 75 M.J. at 103.
On appeal, Appellant initially asserted no ineffective assistance of counsel
claim. After we specified issues, Appellant now argues trial defense counsel
was ineffective in two ways. First, Appellant alleges trial defense counsel’s ad-
vice to Appellant “undersold” the chances of Appellant’s case being dismissed
with prejudice, to a degree measurably below the performance ordinarily ex-
pected of fallible lawyers. Second, Appellant alleges trial defense counsel failed
to recognize that a speedy trial motion, even if otherwise waivable, could not
be waived because of a PTA term.
i) “Underselling” chance for dismissal with prejudice
The overwhelming focus of Appellant’s allegation of ineffective assistance
of counsel is premised on his claim that trial defense counsel “undersold” the
chances of Appellant’s case being dismissed with prejudice. Appellant acknowl-
edges that trial defense counsel discussed a possible R.C.M. 707 speedy trial
motion with Appellant. Appellant further agrees that trial defense counsel ad-
vised Appellant that a R.C.M. 707 motion would “probably” result in “the case”
being dismissed, but that “the dismissal would likely be without prejudice” be-
cause “there was no prejudice to really point to based on the facts.”13
13 In light of our conclusion that there was no colorable claim of an R.C.M. 707 speedy
trial violation for offenses that occurred after the 21 December 2018 restriction and
within 120 days of arraignment, it is arguable that trial defense counsel oversold the
chances of dismissal of “the case.” Neither party makes such a claim and we do not
evaluate it here.
17
United States v. Mar, No. ACM 39708 (f rev)
Upon finding an R.C.M. 707 violation, a military judge has discretion re-
garding whether to dismiss charges with or without prejudice, unless the mil-
itary judge determines the accused has been deprived of his constitutional
right to a speedy trial, in which case the military judge must dismiss all af-
fected charges with prejudice. R.C.M. 707(d)(1). As noted above, though the
record establishes sufficient facts to raise a colorable speedy trial claim, it does
not contain sufficient facts for us to determine with certainty that a speedy
trial claim would have been successful, or whether, if successful, charges would
have been dismissed with prejudice. Trial defense counsel acknowledged on
the record that Appellant was not raising “any sort of Article 10 or other speedy
trial motions,” ostensibly including a Sixth Amendment speedy trial claim.
Further, Appellant has made no constitutional claim on appeal.
Appellant’s argument that trial defense counsel undersold the chances of
dismissal with prejudice to a degree measurably below the performance ordi-
narily expected of fallible lawyers rests on what he suggests is a favorable com-
parison to one case: United States v. Dooley. 61 M.J. 258 (C.A.A.F. 2005). In
Dooley, the CAAF upheld a military judge’s decision to dismiss charges with
prejudice because of a speedy trial violation under R.C.M. 707. Id. at 265.
While there are some similarities between Appellant’s circumstances and
those in Dooley—for example, in Dooley there was a 125-day period between
imposition of pretrial restraint and arraignment—there are also key differ-
ences, including completely different charges in the two cases and the appel-
lant in Dooley being recalled to active duty after five years of appellate leave.
Id. at 258, 265. In any event, Dooley does not stand for the proposition that
military judges must dismiss with prejudice under such or similar circum-
stances.
Trial defense counsel, in his first declaration, asserts that in evaluating
Appellant’s speedy trial claim, he considered Dooley, but also considered other
cases regarding speedy trial and prejudice. Based on this research, trial de-
fense counsel determined dismissal under R.C.M. 707 would most likely be
without prejudice. The other cases trial defense counsel considered at least
suggest a dismissal of charges with prejudice was less likely in Appellant’s case
than Appellant now contends. See, e.g., United States v. Danylo, 73 M.J. 183,
185, 189 (C.A.A.F. 2014) (noting this court had overturned the military judge’s
dismissal with prejudice when the appellant was restricted to base for 123 days
before trial and restriction included a required escort whenever the appellant
left his dormitory; also finding insufficient prejudice for a constitutional viola-
tion despite the appellant serving two months of pretrial confinement beyond
his adjudged sentence due to pretrial delays); United States v. Edmond, 41 M.J.
419 (C.A.A.F. 1995) (not specifically addressing an R.C.M. 707 violation, but
observing that when assessing whether there has been sufficient prejudice to
18
United States v. Mar, No. ACM 39708 (f rev)
assert a constitutional speedy trial violation, courts have considered “truly ne-
glectful government attitudes; intentional versus isolated unwitting violations;
excuses for the delay . . . responsibility for the delay[;] intentional dilatory con-
duct[;] a pattern of neglect[;] and simple inadvertence” (internal quotation
marks and citations omitted)); United States v. Bray, 52 M.J. 659 (A.F. Ct.
Crim. App. 2000) (affirming military judge’s decision finding prejudice when
the Government kept accused in pretrial confinement 237 accountable days
beyond the 120 days allotted by R.C.M. 707(a) to bring the accused to trial). In
light of the research conducted by trial defense counsel and the broad spectrum
of ways in which courts evaluate prejudice in fact-specific cases, we cannot say
that trial defense counsel’s conclusion that dismissal with prejudice was un-
likely was “unreasonable under prevailing professional norms.” Strickland,
466 U.S. at 688.
Other than pointing to some similarities between Dooley and Appellant’s
case, Appellant has identified nothing in the record that renders unreasonable
trial defense counsel’s conclusion that there was little evident prejudice upon
which Appellant could rely to support arguing for dismissal of charges with
prejudice. The fact that in one case a military judge’s decision to dismiss
charges with prejudice was upheld on appeal is a far cry from demonstrating
that trial defense counsel’s advice involved specific defects that were “unrea-
sonable under prevailing professional norms.” Id. Appellant has not overcome
the “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance” and that counsel “made all significant de-
cisions in the exercise of reasonable professional judgment.” Id. at 689–90. Nor
can we say that defense counsel’s conclusion and advice to Appellant that, if
the speedy trial motion was successful, charges would have been dismissed
without prejudice, lacks reasonable explanation or fell measurably below the
performance ordinarily expected of fallible lawyers. United States v. Polk, 32
M.J. 150, 153 (C.M.A. 1991). Appellant has not met his burden of demonstrat-
ing trial defense counsel was ineffective in advising Appellant that dismissal
of charges due to an R.C.M. 707 speedy trial motion would “likely be without
prejudice.”
ii) Failure to “recognize” PTA provision did not waive a mo-
tion to dismiss for a speedy trial violation
Appellant’s ineffective assistance of counsel argument relies heavily—al-
most exclusively—on the argument that trial defense counsel’s evaluation of
the likelihood of dismissal of charges with prejudice was erroneous, a claim we
have rejected. But Appellant also alleges trial defense counsel was ineffective
for failing to recognize that a motion to dismiss for a speedy trial violation—
even if otherwise waivable—could not be waived by the terms or provisions of
a PTA. Appellant argues that because of trial defense counsel’s underselling of
19
United States v. Mar, No. ACM 39708 (f rev)
the chances of dismissal with prejudice and his failure to “recognize” that a
PTA could not require waiver of a speedy trial motion, counsel failed to effec-
tively advise Appellant. Beyond this bare assertion, Appellant’s brief offers no
facts or argument regarding trial defense counsel’s failure to recognize that a
speedy trial motion could not be waived because of a PTA term. Neither Appel-
lant’s Declaration nor brief alleges trial defense counsel misinformed Appel-
lant regarding the effect of the “[w]aive all waivable motions” provision in the
PTA, or even allege trial defense counsel failed to inform Appellant regarding
the effect of the provision. Although Appellant’s Declaration states it was his
“understanding” that if he wanted a PTA he would have to give up the pretrial
motion, it does not state that trial defense counsel’s advice was the source of
that misunderstanding.
Trial defense counsel contests Appellant’s assertion that Appellant did not
recognize that a speedy trial motion could not be waived because of a PTA. He
proclaims that Appellant, prior to and during trial, “understood that a pretrial
agreement did not prevent the defense from raising an R.C.M. 707 speedy trial
motion.” However, as we addressed above, this assertion is belied by trial de-
fense counsel’s own words on the record at trial when he told the military judge
that the Defense was “giving up” an R.C.M. 707 speedy trial motion pursuant
to the “[w]aive all waivable motions” provision of the PTA. Trial defense coun-
sel explains that when making this statement he “did not intend to imply that
the pretrial agreement precluded raising a motion pursuant to R.C.M 707.” But
counsel did not imply that the PTA term precluded raising a speedy trial mo-
tion; he explicitly stated that Appellant was waiving his R.C.M. 707 motion
because of the “[w]aive all waivable motions” provision about which the mili-
tary judge had just inquired. Contrary to what trial defense counsel now con-
tends, his statements at trial are direct evidence—indeed, the only direct evi-
dence available to us—that he believed that the “[w]aive all waivable motions”
provision in the PTA required the Defense to waive the speedy trial motion, a
motion that is otherwise waivable under R.C.M. 907(b)(2)(A). As we noted
above, R.C.M. 705(c)(1)(B) does not permit a term in a PTA to deprive the ac-
cused of the right to a speedy trial. Trial defense counsel’s statement at trial
reflected an erroneous understanding of the law and the effect of the “[w]aive
all waivable motions” provision.
To prevail on an ineffective assistance of counsel claim, “an appellant must
show specific defects in counsel’s performance that were unreasonable under
prevailing professional norms.” Carter, 79 M.J. at 480–81 (internal quotation
marks and citations omitted). “Ignorance of the law on a material matter can-
not be the prevailing norm in the legal profession or in the court-martial pro-
cess.” United States v. Williams, 53 M.J. 293, 296 (C.A.A.F. 2000). Trial defense
counsel’s statement on the record that he was waiving a speedy trial motion
pursuant to the “waive all waivable motions” provision in the PTA evinced a
20
United States v. Mar, No. ACM 39708 (f rev)
misunderstanding of the meaning and effect of R.C.M. 705(c)(1)(B). This was a
material matter in this case, because it related to Appellant’s ability to raise a
charge-dispositive motion. Even if we were to accept that trial defense counsel
accurately understood the meaning and effect of R.C.M. 705(c)(1)(B), his state-
ment to the military judge misrepresented what he now asserts was the real
reason he did not raise an R.C.M. 707 motion: because he believed it was not
in his client’s best interest under the circumstances. There are a variety of
sound strategic reasons why a defense counsel might wish to allude to a motion
he is not raising. However, in this case, trial defense counsel’s representation
to the court as to the reason he was not raising the motion had the effect of
misadvising the military judge and Appellant regarding the availability of the
speedy trial motion despite the PTA’s “waive all waivable motions” provision,
and agreeing to an incorrect legal position that restricted his client’s options
more than the law allows.
Appellant has not explicitly offered any other evidence that trial defense
counsel misinformed him regarding the effect of the “waive all waivable mo-
tions” provision. For instance, Appellant has not asserted that when advising
him regarding the offer for PTA trial defense counsel told him that he would
be required to give up a speedy trial motion in order to obtain a PTA. This is
important, because for an ineffective assistance of counsel claim, Appellant
bears the burden of “show[ing] specific defects in counsel’s performance that
were unreasonable under prevailing professional norms.” Carter, 79 M.J. at
480–81 (emphasis added) (internal quotation marks and citations omitted). Ab-
sent any further allegation by Appellant of specific defects, we are left solely
with trial defense counsel’s explicit statement on the record reflecting an erro-
neous understanding of R.C.M. 705(c)(1)(B). Nevertheless, this statement on
the record at trial leads us to conclude that Appellant did not accurately un-
derstand the meaning and effect of the “[w]aive all waivable motions” provision
of his PTA, and to further infer that this misunderstanding was at least in part
due to trial defense counsel.
Trial defense counsel’s error does not constitute ineffective assistance of
counsel unless Appellant shows he was prejudiced by this error. In the context
of ineffective assistance of counsel, to show prejudice, Appellant “must show
that there is a reasonable probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been different.” Pinholster, 563
U.S. at 189 (quoting Strickland, 466 U.S. at 694); see also Gooch, 69 M.J. at
362. It is the question of prejudice to which we now turn.
c. Prejudice
We have concluded the military judge erred under R.C.M. 705(c)(1)(B) and
R.C.M. 910(f)(4) by interpreting the “[w]aive all waivable motions” provision to
21
United States v. Mar, No. ACM 39708 (f rev)
require Appellant to waive a R.C.M. 707 speedy trial motion, and advising Ap-
pellant of the same. However, R.C.M. 705(c)(1)(B) is only violated if a PTA term
or condition is enforced to deprive an accused of the right to a speedy trial.
McLaughlin, 50 M.J. at 218 (noting that R.C.M. 705(c)(1)(B) “merely requires
that these terms will not be enforced”). Moreover, an error under R.C.M.
705(c)(1)(B) or R.C.M. 910(f)(4) only requires remedy if we find the error “ma-
terially prejudice[d] the substantial rights of [Appellant].” Article 59, UCMJ,
10 U.S.C. § 859. If Appellant would not have raised a motion to dismiss for a
speedy trial violation at trial, even if given the opportunity to do so without
invalidating his PTA—as was his right—the “[w]aive all waivable motions”
provision of the PTA was not enforced to deprive him of his right to a speedy
trial, and Appellant was not prejudiced. See, e.g., United States v. Chavez-Cor-
rales, No. ARMY 20120640, 2014 CCA LEXIS 577, at *11–12 (A. Ct. Crim. App.
31 Jul. 2014) (unpub. op.) (holding that a “waive all waivable motions” provi-
sion in a PTA did not impermissibly require the appellant to waive his right to
a speedy trial because there was no meritorious motion to make).
Regarding the military judge’s error under R.C.M. 705(c)(1)(B), Appellant
argues the following prejudice: “(1) but for the military judge’s error, Appellant
would have successfully litigated a motion to dismiss the charges with preju-
dice under R.C.M. 707; or (2) given the opportunity to litigate the motion with-
out invalidating the entire pretrial agreement, trial defense counsel would still
have advised Appellant to waive the motion.”14
We have also found trial defense counsel’s performance was deficient under
Strickland’s first prong because of counsel’s statement to the military judge
that the Defense was waiving an R.C.M. 707 speedy trial motion due to the
“[w]aive all waivable motions” provision in the PTA. This statement effec-
tively—and erroneously—advised the military judge and Appellant that a
speedy trial motion had to be waived in order to preserve Appellant’s PTA.
However, Strickland’s second prong requires Appellant to show there is a
reasonable probability that, but for counsel’s errors, the result of the proceed-
ing would have been different. Strickland, 466 U.S. at 694. When an allegation
of ineffective assistance of counsel is based on a failure to make a motion, “an
appellant must show that there is a reasonable probability that such a motion
would have been meritorious.” McConnell, 55 M.J. at 482 (internal quotation
marks and citation omitted). Appellant asserts that the combination of trial
defense counsel’s “underselling” of the likelihood of dismissal with prejudice
and trial defense counsel’s failure to recognize that a speedy trial motion could
not be waived because of a PTA term resulted in the prejudice because had
14 While not entirely clear, the latter theory of prejudice seems to argue that the mili-
tary judge’s error permitted trial defense counsel’s error.
22
United States v. Mar, No. ACM 39708 (f rev)
trial defense counsel “effectively advised Appellant, Appellant would not have
agreed to waive the [R.C.M. 707 speedy trial] motion and the military judge
would have dismissed the charges with prejudice under R.C.M. 707.” Having
found trial defense counsel’s advice to Appellant regarding the likelihood of
dismissal with prejudice to not be deficient under Strickland’s first prong, we
will evaluate only whether trial defense counsel’s failure to recognize that a
speedy trial motion could not be waived because of a PTA term prejudiced Ap-
pellant.
In this case, the measure of prejudice to Appellant due to the military
judge’s errors, and whether the trial defense counsel’s deficiency meets the
Strickland requirement of prejudice, distills to the same question: absent each
of the errors, would trial defense counsel have raised an R.C.M. 707 speedy
trial motion and prevailed? We conclude trial defense counsel would not have
raised such a motion absent the errors, and thus Appellant was not prejudiced
by the errors.
On the question of whether trial defense counsel would have raised an
R.C.M. 707 speedy trial motion—if Appellant had been informed of the oppor-
tunity at trial to do so, as he should have been—trial defense counsel’s and
Appellant’s declarations conflict on a central point: whether Appellant under-
stood that the PTA did not prevent him from raising a motion to dismiss for
violation of his R.C.M. 707 right to speedy trial. Appellant’s Declaration asserts
that had he known the Defense could file the speedy trial motion without can-
celling the PTA, he would have “wanted to try to get [his] charges dismissed
with prejudice before [he] pleaded guilty.” By contrast, Counsel’s Second Dec-
laration asserts that Appellant knew before and during trial that the PTA did
not prevent a speedy trial motion. Even resolving this factual dispute in Ap-
pellant’s favor and accepting the facts as alleged in Appellant’s Declaration,
Appellant has not met his burden to demonstrate material prejudice to a sub-
stantial right.15 Demonstrating that Appellant did not understand the effect of
R.C.M. 705(c)(1)(B) is not the same as demonstrating that that misunderstand-
ing is the reason the trial defense counsel did not raise the motion.
15 We considered the factors articulated by our superior court in United States v. Ginn,
47 M.J. 236, 248 (C.A.A.F. 1997), in determining whether we were required to order a
post-trial evidentiary hearing pursuant to United States v. DuBay, 37 C.M.R. 411, 413
(C.M.A. 1967) and concluded no such hearing is required. The only Ginn factor bearing
on this case is the first, under which we can reject an ineffective assistance of counsel
claim without ordering a hearing if we can resolve any factual disputes raised by Ap-
pellant’s Declaration in Appellant’s favor and still find Appellant would not be entitled
to relief. Ginn, 47 M.J. at 248. Because we find Appellant would not be entitled to relief
even if we accept Appellant’s Declaration as correct, a hearing is not required.
23
United States v. Mar, No. ACM 39708 (f rev)
Appellant has not offered facts, or even presented meaningful argument,
that demonstrate trial defense counsel would have raised an R.C.M. 707
speedy trial motion had the errors we have identified not occurred. To meet his
burden on Strickland’s second prong for proving ineffective assistance of coun-
sel, Appellant must demonstrate that, but for trial defense counsel’s error re-
garding the effect of R.C.M. 705(c)(1)(B), there is a reasonable probability that
trial defense counsel would have raised the motion and it would have been
successful. Appellant hardly makes this claim. Appellant’s brief devotes half of
one sentence to directly addressing ineffective assistance of counsel for failing
to understand R.C.M. 705(c)(1)(B). Appellant argues that, in addition to under-
selling the chance of dismissal with prejudice, trial defense counsel “failed to
recognize that a speedy trial motion—even if it is otherwise waivable—could
not be waived because of a PTA term.” Appellant does not offer any explanation
of how this was ineffective, nor does he allege, in his declaration or brief, that
the reason trial defense counsel did not raise the speedy trial motion was be-
cause he misunderstood R.C.M. 705(c)(1)(B).
In fact, Appellant seems to concede that even if the military judge had
properly advised Appellant and trial defense counsel of the meaning and effect
of R.C.M. 705(c)(1)(B), trial defense counsel still would not have raised the mo-
tion. Contending that Appellant is entitled to relief due to the military judge’s
R.C.M. 705(c)(1)(B) error, Appellant argues that, but for the military judge’s
error, Appellant would either have litigated the R.C.M. 707 motion or “given
the opportunity to litigate the motion without invalidating the entire PTA, [trial
defense counsel] would still have advised Appellant to waive the motion, which
would constitute ineffective assistance of counsel.” (Emphasis added.) If trial
defense counsel still would have advised Appellant against raising a speedy
trial motion even if given the opportunity to litigate the motion without inval-
idating the PTA, trial defense counsel’s misunderstanding of R.C.M.
705(c)(1)(B), and its effect on the “[w]aive all waivable motions” provision, was
not the reason the Defense did not file the motion.
While trial defense counsel and Appellant now disagree regarding whether
Appellant understood that he could have raised a speedy trial motion and re-
tained his PTA, their declarations are consistent on a key point: the strategic
reasons no R.C.M. 707 speedy trial motion was filed. Before trial, trial defense
counsel considered a speedy trial motion and discussed it with Appellant. Trial
defense counsel predicted that although the motion would have been successful
in getting the charges dismissed, the charges likely would have been dismissed
without prejudice, potentially allowing the dismissed charges to be re-pre-
ferred and referred to trial by general court-martial. Moreover, Appellant had
24
United States v. Mar, No. ACM 39708 (f rev)
secured a favorable PTA with the convening authority that included a confine-
ment cap of 12 or 15 months,16 when Appellant otherwise faced a maximum
confinement period of over 39 years and 4 months.17 Trial defense counsel ad-
vised his client that had they successfully obtained a dismissal of charges with-
out prejudice, Appellant faced the prospect of a subsequent trial by general
court-martial, possibly with a less favorable PTA, or no PTA at all. Finally,
trial defense counsel informed Appellant there was no guarantee that Appel-
lant would be released from pretrial confinement while the Government de-
cided what to do with the dismissed charges, including “re-filing” the charges
or appealing. Appellant informed trial defense counsel that he wanted to leave
confinement as soon as possible and thought that not making a speedy trial
motion was the best way forward. For his part, trial defense counsel made the
strategic decision against filing the R.C.M. 707 speedy trial motion after
“weighing the likely remedy in this case of dismissal without prejudice, con-
cerns that [they] would not be able to reach an equally favorable Pre-Trial
Agreement at a future trial, and [his] client’s stated priority of resolving the
case as quickly as possible.” Trial defense counsel’s assertions regarding Ap-
pellant’s rationale for forgoing the speedy trial motion are not controverted by
Appellant’s Declaration. Considering Appellant’s clearly expressed desire to
resolve the charges quickly and leave confinement as soon as possible, trial
defense counsel’s decision to not file the speedy trial motion was an objectively
reasonable choice in strategy from available alternatives. See Akbar, 74 M.J.
at 379.
Notably, Appellant’s Declaration asserts, “If [trial defense counsel] would
have told me there was a decent chance that the charges would be dismissed
with prejudice, I would not have agreed to waive the motion.” But trial defense
counsel would not have told Appellant this because none of the considerations
that had led trial defense counsel to not raise the R.C.M. 707 motion before
trial would have changed. If, at trial, the military judge and trial defense coun-
sel had properly informed Appellant that he could litigate the R.C.M. 707 mo-
tion and keep his PTA, and had trial defense counsel correctly understood the
same, trial defense counsel would have relied on the same strategic considera-
tions upon which he had already relied when deciding not to raise the R.C.M.
707 motion. Specifically, trial defense counsel would have considered that: (1)
16 The PTA capped confinement at 12 months if a punitive discharge was adjudged.
17 After Specification 1 of Charge I (violation of Article 92, UCMJ) was withdrawn and
four specifications of wrongful use of a controlled substance (violation of Article 112a,
UCMJ) were merged into two specifications for the purpose of sentencing, the maxi-
mum possible confinement was 39 years and 4 months.
25
United States v. Mar, No. ACM 39708 (f rev)
if successful, the speedy trial motion would likely result in dismissal of charges
without prejudice; (2) a dismissal with prejudice was unlikely; (3) a dismissal
without prejudice would mean the Government could re-prefer and refer the
charges, resulting in further delay and possible extension of Appellant’s pre-
trial confinement;18 and (4) Appellant might not be able to achieve as favora-
ble—or any—PTA if charges were dismissed and preferred and referred again.
In sum, had the military judge properly ensured Appellant understood that
the “[w]aive all waivable motions” provision in the PTA did not bar him from
raising an R.C.M. 707 motion, and had trial defense counsel properly advised
Appellant of the same, trial defense counsel still would not have filed an R.C.M.
707 speedy trial motion.
Appellant has not demonstrated that the military judge’s errors caused the
Defense to forgo the R.C.M. 707 speedy trial motion. Thus, the “[w]aive all wai-
vable motions” provision in the PTA was not enforced against Appellant in vi-
olation of R.C.M. 705(c)(1)(B) and did not materially prejudice Appellant’s sub-
stantial rights. Similarly, because the Defense would not have raised an
R.C.M. 707 motion even if Appellant had correctly understood the effect of the
“[w]aive all waivable motions” provision, the military judge’s failure to ensure
Appellant understood the provision as required under R.C.M. 910(f)(4) did not
result in any material prejudice to the substantial rights of the Appellant. Fi-
nally, Appellant has failed to prove that, but for counsel’s failure “to recognize
that a speedy trial motion—even if it is otherwise waivable—could not be
waived because of a PTA term,” trial defense counsel would have raised an
R.C.M. 707 speedy trial motion or the result of the proceeding would have been
different. Accordingly, Appellant’s ineffective assistance of counsel claim fails
due to his failure to demonstrate prejudice.
B. Providence of Plea Regarding Nevada Law
1. Additional Background
Appellant pleaded guilty to dereliction of duty under Article 92, UCMJ, for
failing to “refrain from drinking alcohol while under the legal drinking age, as
18 We note that had a motion to dismiss based on an R.C.M. 707 speedy trial violation
been successfully raised, the military judge may have ordered Appellant released from
pretrial confinement for the dismissed charges. However, Appellant might have re-
mained confined as part of findings and sentence regarding the charges and specifica-
tions that could not have been dismissed under a motion asserting a speedy trial vio-
lation: the charged misconduct that occurred less than 120 days before Appellant was
arraigned. Because neither trial defense counsel nor Appellant have asserted they ap-
preciated that not all charges would have been dismissed pursuant to a successful mo-
tion based on an R.C.M. 707 violation, we do not consider it for purposes of analyzing
what would have happened absent the errors we have identified.
26
United States v. Mar, No. ACM 39708 (f rev)
it was his duty to do.” Appellant now claims his plea was improvident because
he did not have a duty to refrain from consuming alcohol while under the age
of 21 years, given the specific location where he consumed alcohol.
At trial, Appellant indicated he understood he had a military duty to re-
frain from consuming alcohol because of his age. During inquiry by the military
judge, the following colloquy occurred:
MJ: A “duty” may be imposed by regulation, a lawful order, or
custom of the service. Do you agree that you had a duty to refrain
from drinking alcohol while under the legal drinking age?
[Appellant]: Yes, ma’am.
MJ: How was that duty or duties imposed? Was it your duty be-
cause of a regulation, a lawful order, custom of service, where
does the duty come from?
[Appellant]: Ma’am, it’s my understanding that there are regu-
lations and laws and that it is the custom of service to follow
local laws, and that I had a duty not to drink until I turned 21.
....
MJ: What exactly did you do, or fail to do, that made you derelict
in the performance of your duties?
[Appellant]: I drank alcohol even though I was 20 years old, and
the legal drinking age is 21.
....
[Appellant]: I drank the wine even though I was only 20 at the
time. I did this even though I was aware that the legal drinking
age is 21.
In the stipulation of fact, Appellant also acknowledged he was derelict in
his duty to obey Nevada law by drinking alcohol while under the legal drinking
age.
The military judge also inquired as to the location of Appellant’s alcohol
consumption:
MJ: Where were you at the time?
[Appellant]: I was at Nellis Air Force Base, by the building triple
seven.
MJ: What kind of building is building triple seven?
[Appellant]: It’s a dormitory for Airm[e]n.
Later, Appellant further described what happened:
27
United States v. Mar, No. ACM 39708 (f rev)
On 8 October 2018, I was having a get together with some of my
friends. We were hanging out in the dorms of building triple
seven. Someone I didn’t know exactly who brought some alcohol
and specifically I remember there being wine. I drank some of
the wine from the bottle and I cannot recall exactly how much I
drank, but after drinking the wine I felt more mellow and calm.
And I drank the wine even though I was only 20 at the time. I
did this even though I was aware that the legal drinking age is
21.
In addition to his testimony, the stipulation of fact touched upon the location
of Appellant’s consumption of alcohol. Specifically, Appellant stipulated that
security forces “responded to an argument near building 777 on Nellis AFB,
Nevada.” (Emphasis added). Once on scene, another Airman “spontaneously
uttered that [he and Appellant] and the other two members present had been
consuming alcohol.”
2. Law
A military judge abuses her discretion when accepting a plea if she does
not ensure the accused provides an adequate factual basis to support the plea
during the providence inquiry. See United States v. Care, 40 C.M.R. 247, 250–
51 (C.M.A. 1969). The military judge may consider both the stipulation of fact
and the inquiry with the appellant when determining if the guilty plea is prov-
ident. United States v. Hines, 73 M.J. 119, 124 (C.A.A.F. 2014). “In reviewing
the providence of [an a]ppellant’s guilty pleas, we consider his colloquy with
the military judge, as well any inferences that may reasonably be drawn from
it.” United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007) (citing United States
v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004)). This is an area in which the
military judge is entitled to significant deference, given the often undeveloped
factual record in such cases as compared to that of a litigated trial. See United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (citing United States v.
Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)).
When determining if a guilty plea is provident we ask whether the record
presents a substantial basis in law or fact for questioning it. See id.; United
States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). At trial, the military judge
must ensure the accused understands the facts (what he did) that support his
guilty plea, the judge must be satisfied that the accused understands the law
applicable to his facts (why he is guilty), and that he is actually guilty. See
United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008).
Evidence must be presented at trial to prove the existence of a duty in order
to satisfy the first element of an Article 92(3), UCMJ, dereliction of duty of-
fense. See United States v. Tanksley, 36 M.J. 428, 430 (C.M.A. 1993). To the
28
United States v. Mar, No. ACM 39708 (f rev)
extent military duties are not clearly assigned, “common sense and military
custom help fill in the gaps.” United States v. Shelly, 19 M.J. 325, 328 (C.M.A.
1985).
Under R.C.M. 811(e), “a stipulation of fact that has been accepted is binding
on the court-martial and may not be contradicted by the parties.”
Paragraph 1 of Section 202.020 of the Nevada Revised Statutes states:
“[e]xcept as otherwise provided in this section, a person under 21 years of age
who purchases any alcoholic beverage or any such person who consumes any
alcoholic beverage in any saloon, resort or premises where spirituous, malt or
fermented liquors or wines are sold is guilty of a misdemeanor.” Nev. Rev. Stat.
§ 202.020 ¶ 1 (2015). Paragraph 2 of this same statute states: “[e]xcept as oth-
erwise provided in this section, a person under 21 years of age who, for any
reason, possesses any alcoholic beverage in public is guilty of a misdemeanor
. . . .” Nev. Rev. Stat. § 202.020 ¶ 2 (2015). Paragraph 7 permits stricter local
restrictions, stating “[t]his section does not preclude a local governmental en-
tity from enacting by ordinance an additional or broader restriction . . . .” Nev.
Rev. Stat. § 202.020 ¶ 7 (2015).
Clark County, Nevada Code of Ordinances § 12.12.050, states “[i]t is un-
lawful for any person under the age of twenty-one years to buy, receive, have
in his possession or consume outside of his dwelling place any beer, or malt
beverage, or alcoholic beverage.”
3. Analysis
a. Providence of Plea
Appellant now contends that the conduct he admitted during the Care in-
quiry did not actually violate Nevada’s law against underage drinking because
he did not admit to purchasing alcohol, or consuming alcohol in a prohibited
establishment, or possessing alcohol in public. However, Appellant’s testimony
during the Care inquiry explicitly demonstrated his understanding that he had
a military duty—imposed by custom of the service—to obey “local law.” Appli-
cable local law prohibited his consumption of alcohol while under age 21 while
outside his “dwelling place.”19 Id.
19 We take judicial notice of the fact that Nellis Air Force Base, where Appellant con-
sumed the alcohol in question, is wholly located in Clark County, Nevada, and that
Clark County, Nevada, is a political subdivision of the state of Nevada, drawing all
authority from the state. See Nev. Rev. Stat. § 244.137 (2017).
29
United States v. Mar, No. ACM 39708 (f rev)
We recognize there may be some question regarding whether consumption
of alcohol in a dormitory building, but outside the consumer’s assigned dormi-
tory room, would be “outside of his dwelling place,” but we need not reach that
question here. When the military judge asked where he consumed alcohol, Ap-
pellant specifically admitted he was drinking “by” the dormitory building.
There is no evidence to suggest that when Appellant said the word “by,” which
means “near,”20 that he actually intended to say “inside.” Consistent with his
testimony that he had been drinking alcohol “by” the dormitory building, the
stipulation of fact indicated that when law enforcement personnel responded
to an argument “near building 777” (emphasis added), one of the Airmen told
security forces that Appellant had been consuming alcohol.
While Appellant’s additional testimony that he was “hanging out in the
dorms” (emphasis added) that day suggests he may also have consumed alcohol
inside the dormitory building, the reasonable inference that can be drawn from
Appellant’s testimony and the stipulation of fact is that at some point on the
date in question, Appellant was drinking alcohol outside (“by”) the dormitory
building. Carr, 65 M.J. at 41 (in reviewing the providence of a guilty plea,
courts consider the appellant’s “colloquy with the military judge, as well [as]
any inferences that may reasonably be drawn from it”). Thus, Appellant con-
sumed alcohol outside his dwelling place while under age, in violation of Clark
County, Nevada, law and in dereliction of his military duty to obey such local
law.21
In summary, Appellant admitted he had a duty, knew he had that duty,
and was derelict in that duty. There is an adequate factual basis to support
Appellant’s plea and nothing in the record raises a substantial question as to
the providency of the plea.
b. Counsel’s Performance
The Supreme Court has established that to prevail on an ineffective assis-
tance claim, a convicted defendant bears the burden of proving that: (1) defense
counsel’s performance was deficient; and (2) the defense was prejudiced by the
20 See MERRIAM WEBSTER DICTIONARY, https://www.merriam-webster.com/diction-
ary/by (last visited 29 Jun. 2022).
21 We recognize that the stipulation of fact avers Appellant was derelict in his duty to
“obey Nevada law by drinking alcohol while under the legal drinking age.” (Emphasis
added). However, we need not decide whether the law of Clark County, Nevada, a po-
litical subdivision of Nevada, constitutes “Nevada law.” The specification of dereliction
of duty does not identify a specific law Appellant was derelict in failing to obey, and
during the Care inquiry, Appellant explicitly stated he understood he had a military
duty to obey “local law.”
30
United States v. Mar, No. ACM 39708 (f rev)
deficient performance. Strickland, 466 U.S. at 698. The CAAF employs the
same test. Carter, 79 M.J. at 480.
Appellant argues his trial defense counsel was ineffective when he “acqui-
esced to a pretrial agreement that required Appellant to improvidently plead
guilty to an offense based upon an erroneous understanding of state law,” and
despite the preliminary hearing officer having identified the issue. Appellant
asserts that his ineffective assistance of counsel claim is raised “in the alter-
native,” but this assignment of error relies on the claimed improvidence of Ap-
pellant’s plea, a claim we have rejected.
Appellant offers no additional basis for why trial defense counsel’s advice
to plead guilty was deficient and we can conjure none.22 Under the circum-
stances of this case, where the Appellant’s plea was provident and his guilty
plea pursuant to a PTA was consistent with Appellant’s stated objective to re-
solve the charges as soon as possible, we discern no other basis for finding
counsel’s performance deficient.
Because we find no error in trial defense counsel’s performance regarding
Appellant’s guilty plea to this charge and specification, we need not evaluate
prejudice.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
ANTHONY F. ROCK, Maj, USAF
Acting Clerk of the Court
22 For instance, an appellant might argue they should have elected to not plead guilty
for reasons other than improvidence. However, as noted in Section II.A.3.c., supra,
there were strong reasons for Appellant’s PTA and resulting guilty plea, including the
favorable PTA terms in light of the maximum confinement possible for the charged
misconduct, and his stated desire to leave pretrial confinement as soon as possible.
And choosing to litigate this comparatively minor charge and specification without any
certainty of an acquittal may not have been worth risking Appellant’s favorable PTA.
31