United States v. Bell ( 2016 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201600066
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UNITED STATES OF AMERICA
Appellee
v.
LARRY R. BELL
Lance Corporal (E-3), U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC .
For Appellant: Lieutenant Colonel Richard A. Viczorek, USMCR.
For Appellee: Lieutenant James M. Belforti, JAGC, USN.
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Decided 20 October 2016
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Before C AMPBELL , R UGH , and H UTCHISON , Appellate Military Judges
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This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
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PER CURIAM:
At an uncontested general court-martial, a military judge convicted the
appellant of attempted sexual assault of a child, attempted sexual abuse of a
child, and communicating indecent language—offenses committed during
May 2015, in violation of Articles 80 and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 880 and 934. The convening authority (CA)
approved the adjudged sentence of three years’ confinement, reduction to pay
grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge.
Pursuant to a pretrial agreement, the CA also suspended all confinement in
excess of 18 months.
The appellant’s sole assignment of error (AOE) contends a dishonorable
discharge is not a mandatory punishment for Article 80, UCMJ, convictions
for attempted violations of Article 120b(b), UCMJ. In accordance with our
holding to the contrary in United States v. Henegar, __ M.J. __, No.
201500379, 2016 CCA LEXIS 495 (N-M. Ct. Crim. App. 18 Aug 2016), we
summarily reject the appellant’s assertion.
Although not raised as an AOE, we note the trial defense counsel’s post-
trial clemency submission requested the CA to disapprove “all of [the
appellant’s] remaining confinement time[.]”1 Such action would violate the
CA’s clemency limitations under Article 60, UCMJ, and RULE FOR COURTS-
MARTIAL 1107, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) in
this case.2
The appellant has not asserted his trial defense counsel was ineffective
for requesting unauthorized clemency relief. It is his burden to demonstrate
(1) his counsel’s performance was deficient to the point of “not functioning as
the ‘counsel’ guaranteed by the Sixth Amendment” and (2) the deficient
performance prejudiced the defense. United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007) (citations and internal quotation marks omitted). An
appellant receives “the benefit of the doubt” regarding whether “there is
material prejudice to [his] substantial rights” based on “[e]rrors in post-trial
representation” as long as “there is an error and the appellant makes some
colorable showing of possible prejudice.” United States v. Lee, 52 M.J. 51, 53
(C.A.A.F. 1999) (citations and internal quotation marks omitted).
Deferments of the appellant’s rank reduction and forfeitures were
possible forms of clemency.3 In the context of this case, we find no basis to
conclude it was legal error for the trial defense counsel to not request them
(see United States v. Conrad, No. 201600142, 2016 CCA LEXIS 535, at *6 n.8
(N-M. Ct. Crim. App. 8 Sep 2016) (per curiam) (finding no legal error where
trial defense counsel failed to request an authorized form of clemency, but
Conrad “d[id] not contend his trial defense attorney was ineffective for not
requesting such relief”). Nor do we find a colorable showing that the
submitted request for unauthorized clemency possibly prejudiced the
appellant.4
1 Clemency Request of 30 Dec 2015 at ¶ 5.
2 The National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-
66, 127 Stat. 672 (2013), amended Art. 60(c)(4), UCMJ, reducing the CA’s ability to
effect sentences in cases involving most offenses committed on or after 24 June 2014.
3 The appellant had no military dependents for whose benefit the automatic
forfeitures could be waived following the CA’s action. Art. 58b.(b), UCMJ.
4 While none was submitted here, even briefed arguments on the submission of
unauthorized clemency requests alone may not make a colorable showing of possible
prejudice. See, e.g., United States v. Ouillette, No. 201600075, 2016 CCA LEXIS 481,
at *8 (N-M. Ct. Crim. App. 16 Aug 2016) (trial defense counsel made a tactical
2
The findings and sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
decision to request unauthorized clemency); and Conrad, 216 CCA LEXIS 535, at *2-
3 (appellant was fully informed of the CA’s clemency limitations before trial defense
counsel submitted a post-trial request for unauthorized clemency).
3