United States v. Mitchell

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39794
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UNITED STATES
Appellee
v.
Radell J. MITCHELL
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 7 January 2021
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Military Judge: Matthew P. Stoffel.
Sentence: Sentence adjudged on 15 July 2019 by GCM convened at
Misawa Air Base, Japan. Sentence entered by military judge on 31 July
2019: Dishonorable discharge, confinement for 26 months, and
reduction to E-1.
For Appellant: Captain Alexander A. Navarro, USAF.
For Appellee: Major Jessica L. Delaney, USAF; Mary Ellen Payne,
Esquire.
Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge MINK and 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This is an unpublished opinion and, as such, does not serve as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.
________________________
ANNEXSTAD, Judge:
A general court-martial composed of a military judge sitting alone
convicted Appellant, in accordance with his pleas and pursuant to a pretrial
United States v. Mitchell, No. ACM 39794
agreement (PTA), of one charge and specification of wrongful possession of
child pornography in violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934. 1 The military judge sentenced Appellant to a
dishonorable discharge, confinement for 26 months, forfeiture of all pay and
allowances, and reduction to the grade of E-1. In accordance with the PTA, the
convening authority disapproved the part of the sentence extending to total
forfeitures, but approved the remainder of the adjudged sentence. 2
On appeal, Appellant raises four issues before this court: (1) whether
Appellant is entitled to sentence-appropriateness relief due to post-trial delay,
specifically, Appellant claims that his due process rights were violated when
his case was not docketed with this court within 30 days of the convening
authority’s action as required by United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006); (2) whether Appellant was denied the effective assistance of
counsel under the Sixth Amendment 3 for failing to object to the stipulation of
fact that contained evidence of uncharged sexual misconduct; (3) whether
Appellant was denied the effective assistance of counsel under the Sixth
Amendment when trial defense counsel provided erroneous legal advice during
clemency; and (4) whether Appellant’s sentence is inappropriately severe. 4 We
find no error that resulted in material prejudice to Appellant’s substantial
rights, and affirm the findings and sentence.
I. BACKGROUND
On 15 July 2019, Appellant, a maintainer and quality assurance inspector
at Misawa Air Base, Japan, pleaded guilty to one charge and specification for
wrongfully possessing child pornography in violation of Article 134, UCMJ.
1References to the punitive articles of the Uniform Code of Military Justice (UCMJ)
are to the Manual for Courts-Martial, United States (2016 ed.). Unless otherwise
specified, all other references to the UCMJ and all references to the Rules for Courts-
Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.).
2 Pursuant to the PTA the convening authority deferred the adjudged reduction in
grade and all adjudged and mandatory forfeitures of pay and allowances from 29 July
2019 until the date the entry of judgement (EoJ) was signed by the military judge. Also
in accordance with the PTA, the convening authority waived all of the automatic
forfeitures for a period of six months, release from confinement, or expiration of
Appellant’s term of service, whichever was sooner, with the waiver commencing on the
date the EoJ was signed by the military judge.
3 U.S. CONST. amend. VI.
4 Appellant personally raises issues (2) through (4) pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). Since issues (2) and (3) require the same
analysis, we consider them together.
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At trial, Appellant admitted that he downloaded child pornography using
a peer-to-peer program called “Shareaza.” Appellant stated that he began
viewing legal, adult pornography, but eventually transitioned to viewing
pornography with younger women and eventually children. Appellant further
admitted that he possessed, viewed and downloaded pornography with
children as young as seven years old having vaginal and oral sex with adult
men. Appellant admitted that he searched for and downloaded child
pornography on his laptop and that he possessed 62 files with “hash values”
from the National Center for Missing and Exploited Children (NCMEC), which
indicated that the files were known depictions of exploitation involving
identified child victims. Appellant also admitted that he possessed 100
additional files on his laptop that contained images of child pornography and
child erotica that were not associated with a NCMEC hash value.
In addition to the files on his laptop, Appellant also admitted that he
possessed 23 files with NCMEC-positive hash values on an external hard drive
that he kept in a packing box in his closet. Appellant admitted that the hard
drive contained 16,000 other files of pornography, with at least 2,000 image
files of child pornography and 100 videos of child pornography.
The primary evidence at trial consisted of Appellant’s sworn statements to
the military judge and a six-page stipulation of fact with five attachments
totaling 56 pages. The attachments included a report of investigation (ROI)
from the Naval Criminal Investigative Service, Appellant’s four-page written
confession to law enforcement investigators, redacted excerpts from the Air
Force Office of Special Investigations’ ROI, a report from the Defense Cyber
Crime Center’s Cyber Forensic Laboratory (DC3/CFL), and a digital video disc
(DVD) with contraband material.
II. DISCUSSION
A. Post-Trial Delay
Appellant contends that he is entitled to sentence relief because his due
process rights were violated when his case was not docketed with this court
within 30 days of the convening authority’s action as required by Moreno. We
disagree.
1. Additional Background
Appellant was sentenced on 15 July 2019. On 22 July 2019, Appellant
submitted his request for clemency. The convening authority signed the
decision on action memorandum to the military judge on 29 July 2019, and the
military judge signed the entry of judgment on 31 July 2019. The court reporter
certified the transcript on 19 August 2019. On 19 September 2019, a copy of
the record of trial (ROT) was sent to Appellant. The case was subsequently
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docketed with this court on 21 October 2019. Appellant never requested speedy
processing.
In his 14 July 2020 declaration before this court, Appellant claims that the
delay in docketing his case with this court has negatively impacted both his
ability to begin his efforts to administratively upgrade his discharge
characterization and his ability to apply for veteran’s medical benefits for his
service-related medical issues. 5 Appellant claims that the delay in the outcome
of his appeal has caused him “particularized anxiety and apprehension”
because of his “numerous mental and physical health ailments.” Appellant
asks this court to grant sentence relief.
2. Law and Analysis
This court reviews de novo whether an appellant’s due process rights are
violated because of post-trial delay. Moreno, 63 M.J. at 135 (citations omitted).
In the absence of a due process violation, this court considers whether relief for
excessive post-trial delay is warranted consistent with this court’s authority
under Article 66(d)(2), UCMJ, 10 U.S.C. § 866(d)(2). See United States v.
Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United States v. Gay, 74 M.J. 736,
744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016).
In Moreno, the United States Court of Appeals for the Armed Forces
(CAAF) identified thresholds for facially unreasonable delay during three
particular segments of the post-trial and appellate process. 63 M.J. at 141–43.
Specifically, the CAAF established a presumption of facially unreasonable
delay where: (1) the convening authority did not take action within 120 days
of the completion of trial, (2) the record was not docketed with the Court of
Criminal Appeals within 30 days of the convening authority’s action, or (3) the
Court of Criminal Appeals did not render a decision within 18 months of
docketing. Id. at 142.
We note at the outset, Appellant’s offense occurred between on or about 21
July 2016 and on or about 31 May 2018. The convening authority referred the
charge and specifications to trial by general court-martial on 3 June 2019.
Accordingly, Appellant’s court-martial was generally subject to the procedures
provided for in the 2019 version of the Manual for Courts-Martial. We also
agree that the due process right to timely post-trial and appellate review the
CAAF recognized and sought to safeguard in Moreno endures under the new
post-2019 procedures.
5 Since the issue was raised in the record but was not fully resolvable by those
materials, the affidavits submitted by the Government and Appellant were considered
consistent with United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020).
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As we recently noted in United States v. Livak, ___ M.J. ___, No. ACM
S32617, 2020 CCA LEXIS 315, at *6–7 (A.F. Ct. Crim. App. 14 Sep. 2020)
(citation omitted), “the specific requirement in Moreno which called for
docketing to occur within 30 days of action no longer helps us determine a
facially unreasonable delay under the new procedural rules,” but the aggregate
standard threshold established by the majority in Moreno of 150 days from
Appellant’s sentence to docketing is still applicable in determining a facially
unreasonable delay. “This 150-day threshold appropriately protects an
appellant’s due process right to timely post-trial and appellate review and is
consistent with our superior court’s holding in Moreno.” Id. at *7.
In the case before us, the entire period from the end of Appellant’s trial to
docketing with this court took 98 days. Since this is well under the 150-day
threshold discussed above, we conclude no facially unreasonable delay
occurred.
Assuming arguendo that there was a facially unreasonable delay from
convening authority action to docketing, we will assess whether there was a
due process violation. In conducting our analysis, we have considered the four
factors set forth in Barker v. Wingo, 407 U.S. 514, 530–32 (1972): (1) the length
of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the
right to timely review and appeal; and (4) prejudice. “[These] four factors are
balanced, with no single factor being required to find that post-trial delay
constitutes a due process violation.” Moreno, 63 M.J. at 136 (citing Barker, 407
U.S. at 533) (additional citation omitted). Additionally, where an appellant has
not shown prejudice from the delay, we cannot find a due process violation
unless the delay is so egregious as to “adversely affect the public’s perception
of the fairness and integrity of the military justice system.” United States v.
Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). After balancing the Barker factors,
we find no prejudice and no violation of Appellant’s due process rights.
Recognizing our authority under Article 66(d)(2), UCMJ, we have also
considered whether relief for excessive post-trial delay is appropriate even in
the absence of a due process violation. See United States v. Tardif, 57 M.J. 219,
225 (C.A.A.F. 2002). After considering the factors enumerated in United States
v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016), we conclude it is not.
B. Ineffective Assistance of Counsel
1. Additional Background
Appellate personally raises two grounds for ineffective assistance of trial
defense counsel in that Appellant’s trial defense counsel: (1) failed to object to
the stipulation of fact that contained some material related to uncharged
sexual misconduct; and (2) provided erroneous legal advice during clemency.
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On 7 August 2020, our court ordered both of Appellant’s trial defense
counsel, Mr. WK and Captain (Capt) MM, to provide responsive declarations.
We have considered whether a post-trial evidentiary hearing is required to
resolve any factual disputes between Appellant’s assertions and his trial
defense team’s assertions. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967). We find a
hearing unnecessary to resolve Appellant’s claims.
2. Law
The Sixth Amendment guarantees an accused the right to effective
assistance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001).
In assessing the effectiveness of counsel, we apply the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the
presumption of competence announced in United States v. Cronic, 466 U.S.
648, 658 (1984). See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52
M.J. 312, 315 (C.A.A.F. 2000)). We review allegations of ineffective assistance
de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United
States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)).
We utilize the following three-part test to determine whether the
presumption of competence has been overcome:
1. Are appellant’s allegations true; if so, “is there a reasonable
explanation for counsel’s actions”?
2. If the allegations are true, did defense counsel’s level of
advocacy “fall measurably below the performance . . . [ordinarily
expected] of fallible lawyers”?
3. If defense counsel was ineffective, is there “a reasonable
probability that, absent the errors,” there would have been a
different result?
Id. (alterations in original) (quoting United States v. Polk, 32 M.J. 150, 153
(C.M.A. 1991)). The burden is on the appellant to demonstrate both deficient
performance and prejudice. United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F.
2012) (citation omitted).
The United States Supreme Court has defined the prejudice element of an
ineffective assistance of counsel claim as
focus[ing] on the question whether counsel’s performance
renders the result of the trial unreliable or the proceedings
fundamentally unfair. Unreliability or unfairness does not
result if the ineffectiveness of counsel does not deprive the
defendant of a substantive or procedural right to which the law
entitles him.
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Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citations omitted).
“Defense counsel do not perform deficiently when they make a strategic
decision to accept a risk or forego a potential benefit, where it is objectively
reasonable to do so.” Datavs, 71 M.J. at 424 (citing Gooch, 69 M.J. at 362–63)
(additional citation omitted). In reviewing the decisions and actions of trial
defense counsel, this court does not second-guess strategic or tactical decisions.
See United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993) (citations
omitted). It is only in those limited circumstances where a purported
“strategic” or “deliberate” decision is unreasonable or based on inadequate
investigation that it can provide the foundation for a finding of ineffective
assistance. See United States v. Davis, 60 M.J. 469, 474 (C.A.A.F. 2005).
When an appellant alleges ineffective assistance of counsel after pleading
guilty at trial, an appellant must show “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012) (quoting
Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
In the context of post-trial processing, an appellant must make “some
colorable showing of possible prejudice.” United States v. Lee, 52 M.J. 51, 53
(C.A.A.F. 1999) (citing United States v. Wheelus, 49 M.J. 284, 289 (C.A.A.F.
1998)). An appellant must demonstrate prejudice by more than “sheer
speculation.” United States v. Brown, 54 M.J. 289, 293 (C.A.A.F. 2003).
3. Analysis
We find each of the claims of ineffective assistance of counsel to be without
merit.
a. Failure to Object to the Stipulation of Fact
Appellant’s first contention is that his trial defense counsel were ineffective
by failing to object to the stipulation of fact. Appellant claims that the DC3/CFL
report, which was attached to the stipulation of fact, contained evidence of
uncharged misconduct, specifically that Appellant had exposed his penis to a
13-year-old girl during a video chat. 6 In his declaration, Appellant states that
he was assured by his trial defense counsel that information relating to the
“indecent exposure allegation would not be presented at trial.” Appellant now
asserts that had he realized that some information was contained in an
attachment to the stipulation of fact, he would not have signed the document.
Appellant does not state in his declaration that he would have withdrawn from
the PTA and not pleaded guilty. Appellant also does not deny he was afforded
6The Charge and Specification concerning Appellant’s alleged indecent exposure of his
genitalia to a 13-year-old girl, an alleged violation of Article 120c, UCMJ, 10 U.S.C. §
920c, was dismissed prior to the referral of charges on 3 June 2019.
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the opportunity to review the stipulation of fact and its attachments before he
signed the document.
Both of Appellant’s trial defense counsel provided declarations on this
issue. As addressed by both counsel, the process of negotiating the stipulation
of fact was complex. They explained that in order for Appellant to keep the
benefit of the PTA, he was required to enter into a reasonable stipulation of
fact. They explained that their primary focus was to limit the number of images
presented to the military judge, highlight mitigating factors such as
Appellant’s cooperation with investigators, and minimize the inclusion of
damaging facts. Capt MM stated that he argued against the inclusion of the
DC3/CFL report as an attachment to the stipulation of fact, but felt that in
order to maintain the benefit of the PTA, it was not unreasonably harmful that
the DC3/CFL report was included as an attachment. Both counsel stated that
Appellant was provided an opportunity to review the stipulation of fact and its
attachments the night before trial and that he had as much time as he needed
to review them. Both counsel stated that Appellant had a number of concerns
regarding the stipulation of fact, but the concerns were largely based on his
desire to have the quantity of legal pornography he possessed included in the
stipulation. Mr. WK attached an email to his declaration that he sent to trial
counsel in the case that demonstrates Appellant’s primary concern at the time
of trial was including mitigating evidence in the stipulation of fact. Both trial
defense counsel also provided that Appellant never objected to the inclusion of
the DC3/CFL report as an attachment.
At trial, Appellant was again provided the opportunity to review the
stipulation of fact, including all of the attachments. The military judge, sua
sponte, took a recess to give Appellant additional time to review the stipulation
of fact and its attachments. Appellant then confirmed to the military judge that
he had reviewed the stipulation of fact, including the attachments, and that
everything in the stipulation of fact was true. The military judge specifically
asked Appellant “[i]s there anything in the stipulation that you do not wish to
admit is true?” Appellant answered “No, Your Honor.” Trial defense counsel
was then asked if they had any objections to the stipulation of fact and replied
“No, Your Honor.”
We find that Appellant has failed to meet his burden of showing deficient
performance. The declarations and attachments submitted by trial defense
counsel indicate that they made reasonable tactical decisions in the negotiation
of both the PTA and the stipulation of fact, including the decision on what
documents would be attached to the stipulation of fact. They did so as part of
extensive negotiations in which they managed to limit the number of highly
prejudicial images the military judge would view, and also ensured that
significant mitigating evidence was included in the stipulation of fact. This
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court will not second guess reasonable tactical decisions by defense counsel.
There are reasonable explanations for defense counsel’s actions and advice,
and their individual and combined level of advocacy on Appellant’s behalf was
not “measurably below the performance ordinarily expected of fallible
lawyers.” Polk, 32 M.J. at 153.
Furthermore, Appellant has not demonstrated that there were any false
communications between himself and his trial defense counsel. Appellant, on
the record, stated to the military judge that he was satisfied with his defense
counsel’s advice and with his defense counsel. Furthermore, Appellant was
provided at least two extended opportunities to review the stipulation of fact
and its attachments and never expressed any concern. There is nothing in the
record that demonstrates that Appellant did not have time to review the
stipulation of fact or that he had any objection to the document or its
attachments. To the contrary, Appellant told the military judge that he had
enough time to review the stipulation and its attachments and he wished to
admit it was true. Finally, we see no evidence in the record to suggest a
reasonable probability that, but for defense counsel’s errors, Appellant would
not have pleaded guilty and would have insisted on going to trial. In fact, the
record demonstrates the opposite—that Appellant knowingly and willingly
pleaded guilty at trial in order to receive the benefits of his PTA.
Even if we were to find that trial defense counsel were ineffective,
Appellant has failed to meet his burden to demonstrate prejudice. Appellant
claims on appeal that had this information regarding his alleged indecent
exposure not been attached to the stipulation of fact, his sentence would have
been less severe. We disagree and note that nothing in the record supports this
argument. It is a “well-established rule that military judges are presumed to
know the law and to follow it absent clear evidence to the contrary.” United
States v. Hukill, 76 M.J. 219, 221 (C.A.A.F. 2017). In this case, Appellant was
sentenced by a military judge, and has offered no evidence to rebut the
presumption. Appellant has presented no evidence that the military judge
abdicated his role or that he inappropriately sentenced Appellant on the basis
of a charge for which he was not convicted. Moreover, trial counsel did not
argue that Appellant should be sentenced based on the conduct in the
dismissed charge; in fact, trial counsel did not mention the DC3/CFL report at
all during sentencing. Finally, other than being referenced in the DC3/CFL
report, the indecent exposure allegation was not referenced in the body of the
stipulation, discussed during the providence inquiry, or otherwise raised
during the sentencing proceedings. We conclude that Appellant has failed to
demonstrate that there would have been a different result.
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b. Incorrect Legal Advice Regarding Clemency
Appellant next contends that his defense counsel erred when they advised
him that the convening authority had the power to mitigate his term of
confinement in clemency. Appellant claims that had he been advised correctly,
he would not have asked the convening authority to reduce his adjudged
confinement to 12 months and instead would have made a different request for
relief, specifically a change in his reduction in grade.
Both trial defense counsel, in their declarations, assert that they advised
Appellant that the convening authority was not able to grant clemency for his
sentence to confinement. Capt MM explained that, despite his advice,
Appellant was “emotional” about the length of confinement and desired to
request a reduction in confinement despite his advice that the convening
authority could not grant such a request. Capt MM stated, “[i]n my judgment
given [Appellant’s] emotional state, it was beneficial for [him] to feel like he
had done everything he could to get what he desired. In short, it was better to
ask than to regret not asking.” For this reason, Capt MM stated that he
included in Appellant’s clemency request a plea that Appellant’s sentence be
“lowered to 12 months.” Additionally, Capt MM stated that he “also included a
catch-all request that [Appellant] be shown ‘whatever leniency’ the [c]onvening
[a]uthority could give.” Finally, Capt MM provided that after Appellant
reviewed the draft clemency request, Appellant “thanked [him] profusely and
said it was more than he had hoped for.”
Appellant has failed to meet his burden of demonstrating deficient
performance in this case. The declarations submitted by trial defense counsel
indicate that there are reasonable explanations for defense counsel’s actions
and advice. Furthermore, we are not persuaded that their individual and
combined level of advocacy on Appellant’s behalf was “measurably below the
performance ordinarily expected of fallible lawyers.” Polk, 32 M.J. at 153.
Appellant’s defense counsel made a reasonable decision to include in the
clemency request both a plea for reduced confinement and “whatever leniency”
the convening authority could grant. We will not second guess reasonable
tactical decisions. Appellant has not demonstrated that his request foreclosed
the possibility of other relief that the convening authority could grant.
Again, even if we were to find that trial defense counsel were ineffective,
Appellant has also failed to meet his burden to demonstrate that there would
have been a different result. Appellant states that he was prejudiced in that
had he been made aware that the convening authority could not grant relief to
mitigate his term of confinement, he would have requested different relief. We
are not persuaded by Appellant’s argument.
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First, the fact that Appellant did not limit his clemency request to only
mitigating his term of confinement cuts against his argument on appeal. In
addition to asking the convening authority to mitigate his confinement,
Appellant specifically asked the convening authority to “grant whatever
leniency” he could. This left open the option for other forms of relief, as opposed
to his personal request to mitigate his confinement. Second, Appellant’s trial
defense counsel also submitted a separate memorandum requesting
deferment, reduction of the sentence, and waiver—in accordance with the
PTA—and the convening authority provided the requested action. This
demonstrates the convening authority’s willingness to consider all forms of
clemency. Third, we note that Appellant’s trial defense counsel did not request
a reduction in Appellant’s sentence to confinement in their memorandum,
instead asking for “leniency” in general. This fact supports their declarations
that they knew the convening authority could not grant such a request and
that they sought to broaden the clemency request to reach actions the
convening authority could permissibly take.
Finally, there is no evidence in the record that the convening authority was
improperly advised in this case. In fact, Appellant’s clemency request did not
reference any law or limitations on the convening authority’s ability to grant
clemency. We rely on the “presumption of regularity” for the convening
authority’s exercise of his responsibilities on clemency. See United States v.
Wise, 20 C.M.R. 188, 194 (C.M.A. 1955). Here, the convening authority’s
decision on action demonstrated that the convening authority took appropriate
action on the sentence, as required by the PTA and Article 60, UCMJ, 10 U.S.C.
§ 860. He consulted with his staff judge advocate, and considered all of the
matters submitted by Appellant. There is no basis to infer that he was unaware
that he had the ability to mitigate Appellant’s reduction in grade, given his
appropriate exercise of all other responsibilities. Moreover, Appellant has
presented no argument for prejudice beyond a speculative comment that “there
is a possibility that the convening authority could have reduced or commuted
the reduction in rank.” We find this to be “sheer speculation,” see Brown, 54
M.J. at 293, particularly in light of the specific clemency request and the
convening authority’s subsequent actions. Appellant has failed to demonstrate
prejudice and therefore is not entitled to relief.
C. Sentence Appropriateness
Appellant contends his sentence is inappropriately severe in light of his
record of service and asks this court to engage in a comparative sentence
review. 7 We disagree and find Appellant’s sentence appropriate.
7To the extent that Appellant asks this court to consider matters not presented during
the presentencing hearing or in his clemency to the convening authority, those matters
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This court “may affirm only . . . the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of the
entire record, should be approved.” Article 66(d)(1), UCMJ, 10 U.S.C.
§ 866(d)(1). We review sentence appropriateness de novo, employing “a
sweeping Congressional mandate to ensure ‘a fair and just punishment for
every accused.’” United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005)
(citations omitted). We are tasked with ensuring Appellant receives the right
amount of punishment for his offenses. See United States v. Barker, 28 M.J.
121, 122 (C.M.A. 1989).
In determining whether a sentence is appropriate, we consider the
“particular appellant, the nature and seriousness of the offense, the appellant’s
record of service, and all matters contained in the record of trial.” United States
v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009). We have a great deal
of discretion in determining whether a particular sentence is appropriate, but
we are not authorized to engage in exercises of clemency. United States v.
Healy, 26 M.J. 394, 395–96 (C.M.A. 1988).
A sentence comparison is required if Appellant can demonstrate that (1)
the cited cases are “closely related” to his case, and (2) the sentences are “highly
disparate.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). Cases are
“closely related” when they include “coactors involved in a common crime,
servicemembers involved in a common or parallel scheme, or some other direct
nexus between the servicemembers whose sentences are sought to be
compared.” Id.In the present case, Appellant has failed to demonstrate that the six cases
cited in his Grostefon brief are “closely related” to his case. Appellant has not
presented any evidence that the other cases he cited involve co-actors, common
schemes, or any direct nexus to his case. Additionally, Appellant has not
provided any information as to the unique facts and circumstances of these
cases or any mitigating or extenuating factors which might have been present
in those cases. Therefore, we find that a sentence comparison is neither
required nor helpful.
After conducting a review of the entire record, we find that the adjudged
and approved sentence is appropriate. In reaching this conclusion, we
considered Appellant’s unsworn statement, his enlisted performance reports,
the defense exhibits submitted at trial, and all the matters submitted by
Appellant during clemency. We also considered the facts of the offense to which
Appellant pleaded guilty and all other properly admitted matters. Appellant
faced a maximum sentence that included confinement for ten years and a
may not be considered by this court in assessing sentence appropriateness. See Jessie,
79 M.J. at 444.
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dishonorable discharge. Appellant’s PTA limited the maximum term of
confinement to 30 months and explicitly stated that the punitive discharge
could “be approved as adjudged.” The fact that Appellant knowingly and
voluntarily entered into an agreement with the convening authority which
allowed for 30 months of confinement and a dishonorable discharge to be
adjudged and approved undercuts his assertion on appeal that his sentence is
inappropriately severe. We find Appellant’s approved sentence of a
dishonorable discharge, confinement for 26 months, and reduction to the grade
of E-1 is appropriate for the crime he committed.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(d), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(d).
Accordingly, the findings and sentence are AFFIRMED. 8
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
8 We note the Statement of Trial Results in this case failed to include the command
that convened the court-martial as required by R.C.M. 1101(a)(3). Appellant has made
no claim of prejudice, and we find none. See United States v. Moody-Neukom, No. ACM
S32594, 2019 CCA LEXIS 521, at *2–3 (A.F. Ct. Crim. App. 16 Dec. 2019) (per curiam)
(unpub. op.).
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