United States v. Johnson ( 2017 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201600254
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UNITED STATES OF AMERICA
Appellee
v.
D’ANDRE C. JOHNSON
Airman Recruit (E-1), U.S. Navy
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Robert J. Crow, JAGC, USN.
Convening Authority: Commanding Officer, Naval Air Technical
Training Center, Pensacola, FL.
Staff Judge Advocate’s Recommendation: Lieutenant Christopher
Ironroad, JAGC, USN.
For Appellant: Lieutenant Commander Derek C. Hampton, JAGC,
USN.
For Appellee: Captain Sean M. Monks, USMC; Lieutenant James M.
Belforti, JAGC, USN.
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Decided 31 January 2017
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Before M ARKS , F ULTON , and GLASER-ALLEN, Appellate Military Judges
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PER CURIAM:
A military judge sitting as a special court-martial convicted the appellant,
consistent with his pleas, of one specification each of intentionally
abandoning watch, absence from unit, willful disobedience of a
noncommissioned officer, disrespect toward a noncommissioned officer,
willful disobedience of a petty officer, disrespect toward a petty officer, and
two specifications of making a false official statement, in violation of Articles
86, 91, and 107, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886,
891, and 907. The military judge sentenced the appellant to six months’
confinement and a bad-conduct discharge. In accordance with a pretrial
agreement, the convening authority (CA) approved the sentence as adjudged
but suspended all confinement in excess of three months.
The case was submitted to the court without assignment of error. On
consideration of the case, we specified the following issue:
Did the appellant receive the effective assistance of counsel in
his post-trial representation when detailed defense counsel
requested relief outside the authority of the convening
authority to grant? If not, was the appellant prejudiced by this
deficiency?
After careful consideration of the record of trial and the pleadings of the
parties, we find that the findings and the sentence are correct in law and fact
and that no error materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
The appellant was an airman recruit assigned to Naval Air Technical
Training Center in Pensacola, Florida. While serving a period of restriction
imposed for earlier misconduct, the appellant committed several offenses,
including disrespecting and disobeying his superiors, abandoning his watch,
and making false official statements.
After the appellant’s court-martial, the staff judge advocate provided the
staff judge advocate’s recommendation (SJAR) to the CA, advising him that
“action on the guilty findings or sentence is a matter within your discretion,”
and that he must consider post-trial matters submitted by the appellant’s
counsel “in determining whether to approve or disapprove any of the findings
of guilty and the action you take on the sentence.”1 After receiving the SJAR,
the trial defense counsel (TDC) submitted a clemency request, asking the CA
to disapprove the bad-conduct discharge.
II. DISCUSSION
A military accused is entitled to the effective assistance of counsel. Art.
27(b), UCMJ; United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). The
right to effective assistance of counsel extends to post-trial requests for
clemency. United States v. Palenius, 2 M.J. 86, 93 (C.M.A. 1977) (“After trial
and conviction of the accused, the trial defense attorney should and can with
honor be of much more assistance to his client and to the court. . . . This
includes the reviewing of the staff judge advocate’s report with his client . . .
.”).
1 SJAR dated 6 Jul 2016 at 1, 2.
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We apply the two-pronged test set forth by the Supreme Court in
Strickland v. Washington, 466 U.S. 668, 687 (1984), to determine whether
counsel rendered ineffective representation. To prevail on a claim of
ineffective assistance of counsel, “an appellant must demonstrate both (1)
that his counsel’s performance was deficient, and (2) that this deficiency
resulted in prejudice.” United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F.
2010) (citing Strickland, 466 U.S. at 687) (additional citation omitted).
Courts are not required, however, to determine whether counsel’s
performance was deficient before first examining whether the appellant
suffered any prejudice. United States v. Datavs, 71 M.J. 420, 424-25.
(C.A.A.F. 2012). In evaluating claims of post-trial ineffective assistance of
counsel, the threshold for finding prejudice is low; an appellant must merely
make “some colorable showing of possible prejudice.” United States v.
Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997) (citations omitted).
We find that the appellant has made no such showing. The appellant was
no longer confined at the time of the request. His pay grade was not reduced
by the court-martial (he was already serving in the pay grade of E-1), and he
automatically forfeited two-thirds of his pay only during the 45 days’
confinement he served after trial. Having requested significant clemency
from the CA—who apparently believed himself authorized to grant it—the
appellant did not receive even the lesser clemency that the CA was
authorized to grant. The appellant has submitted no evidence indicating that
he would have made a different request but for his counsel’s erroneous view
of Article 60, UCMJ. Cf. United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002)
(TDC’s post-trial affidavit showing what steps he would have taken absent
post-trial error sufficient to make a colorable showing of possible prejudice).
Therefore we do not reach the issue of whether TDC’s performance was
deficient. We find that the appellant has not made a colorable showing of
possible prejudice, and that no error materially prejudiced a substantial right
of the appellant. Arts. 59(a) and 66(c), UCMJ.
III. CONCLUSION
The findings and sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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