          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600307
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                       JOSHUA J. MCCALLON
                   Corporal (E-4), U.S. Marine Corps
                               Appellant
                       _________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
 Convening Authority: Commanding General, 1st Marine Aircraft
                      Wing, Okinawa, Japan.
  Staff Judge Advocate’s Recommendation: Major Christopher W.
                          Pehrson, USMC.
 For Appellant: Lieutenant Commander Derek C. Hampton, JAGC,
                                USN.
            For Appellee: Major Cory A. Carver, USMC.
                      _________________________

                          Decided 27 April 2017
                         _________________________

   Before C AMPBELL , H UTCHISON , and B ELSKY , Appellate Military
                                Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   PER CURIAM:

   A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of making a false official statement and assault
consummated by a battery, in violation of Articles 107 and 128, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 907 and 928. The military
                       United States v. McCallon, No. 201600307


judge sentenced the appellant to six months’ confinement, reduction to pay
grade E-1, a reprimand, forfeiture of $1,433.00 pay per month for 12 months,
and a bad-conduct discharge. As a corrective action, the convening authority
(CA) disapproved forfeitures in excess of $1,044.00 pay per month for 12
months and, as a matter of clemency, he disapproved the reprimand. The CA
then approved the remaining sentence as adjudged and, with the exception of
the punitive discharge, ordered the sentence executed.
    Upon our review of the case, submitted without assignment of error, we
specified whether the appellant received the effective assistance of counsel in
his post-trial representation when trial defense counsel requested relief that
the CA had no authority to grant since the 2014 amendments to Article 60,
UCMJ. After considering the parties’ responsive pleadings and the record of
trial, we find no error materially prejudicial to the appellant’s substantial
rights, and affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                  I. BACKGROUND
    The CA originally referred a specification of abusive sexual contact, in
violation of Article 120(d), UCMJ, to a general court-martial, alleging that
the appellant performed oral sex on Lance Corporal (LCpl) J.A., USMC, while
she was asleep, unconscious, or otherwise unaware of the contact. Ultimately,
the appellant pleaded guilty at a special court-martial to committing an
assault consummated by a battery for unlawfully touching LCpl J.A.’s “pelvic
area with his face,”1 and to violating Article 107, UCMJ, for later attempting
to deceive law enforcement about the encounter.
    In his initial post-trial clemency submission, filed 1 July 2016, trial
defense counsel requested that the CA disapprove the appellant’s adjudged
bad-conduct discharge and “remaining confinement.”2 The 7 July 2016 staff
judge advocate’s recommendation (SJAR), apparently submitted prior to
receipt of the trial defense counsel’s clemency request, encouraged the CA to
approve the sentence as adjudged.3 An addendum to the SJAR, dated 3
August 2016, acknowledged the 1 July 2016 clemency request without
commenting on the part of the requested relief—disapproval of the punitive
discharge—exceeding the CA’s clemency powers. It recommended correcting
the erroneous adjudged forfeitures amount and disapproving the reprimand.
   In response to the SJAR addendum, trial defense counsel submitted a
second clemency request on 12 August 2016. It renewed the request for the


   1   Charge Sheet.
   2   Trial Defense Counsel Clemency Request dtd 1 Jul 2016 at 1-2.
   3  SJAR of 7 Jul 2016 at 1. The SJAR specifically notes that “[p]ost-trial matters
by [the appellant would] be provided when received.”


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                      United States v. McCallon, No. 201600307


CA to disapprove the appellant’s punitive discharge and asked that, instead
of disapproving the reprimand, the CA approve that punishment “as a
constant and continued reminder of the mistakes [the appellant] made during
his time in the Marine Corps, while also not limiting [the appellant’s]
prospects going forward in life . . . .”4 This second clemency submission did
not renew the initial request to disapprove any remaining confinement.
                                  II. DISCUSSION
    “By virtue of Article 27, UCMJ, 10 U.S.C. § 827, as well as the Sixth
Amendment of the Constitution, a military accused is guaranteed the
effective assistance of counsel.” United States v. Scott, 24 M.J. 186, 187-88
(C.M.A. 1987) (citations omitted). This guarantee includes the right to
effective counsel during the post-trial process. United States v. Cornett, 47
M.J. 128, 133 (C.A.A.F. 1997). To establish a claim of ineffective assistance of
counsel, an appellant must demonstrate: (1) that his counsel’s performance
was deficient to the point that he “was not functioning as the ‘counsel’
guaranteed . . . by the Sixth Amendment” and (2) that the deficient
performance prejudiced the defense. United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007) (citations omitted). However, when evaluating claims of post-
trial ineffective assistance of counsel, we must give an appellant the benefit
of the doubt and find that “there is material prejudice to the substantial
rights of an appellant if there is an error and the appellant ‘makes some
colorable showing of possible prejudice.’” United States v. Wheelus, 49 M.J.
283, 289 (C.A.A.F. 1998) (quoting United States v. Chatman, 46 M.J. 321,
323-24 (C.A.A.F. 1997)). We review de novo whether an appellant was
deprived the effective assistance of counsel at the post-trial stage. United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012).
    Here, the CA did not have the authority, under Article 60, UCMJ, to
disapprove the appellant’s bad-conduct discharge since the appellant pled
guilty to offenses which occurred after 24 June 2014. United States v. Kruse,
75 M.J. 971, 973 (N-M. Ct. Crim. App. 2016). Thus, trial defense counsel
undoubtedly erred when he requested, not once but twice, that the CA
disapprove the appellant’s discharge. However, we need not decide whether
this error amounted to constitutionally deficient performance because the
appellant has made no colorable showing of possible prejudice, and therefore
is entitled to no relief. Datavs, 71 M.J. at 424 (stating that “a court need not
determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant,” for “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we



   4   Trial Defense Counsel Clemency Request of 12 Aug 2016 at 2.


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                      United States v. McCallon, No. 201600307


expect will often be so, that course should be followed.”) (citations and
internal quotation marks omitted).
   The appellant argues that the manner in which trial defense counsel
handled clemency prejudiced him because: (1) the request to disapprove the
punitive discharge undermined trial defense counsel’s credibility with the
CA; and (2) trial defense counsel failed to put forward a legitimate request
that the CA disapprove any remaining confinement. The appellant concludes
that these errors effectively resulted in the trial defense counsel asking for no
clemency at all. We disagree.5
    First, despite his erroneous request that the CA disapprove the
appellant’s discharge, the trial defense counsel did request that the CA
disapprove all of the appellant’s remaining confinement.6 Since the
appellant’s adjudged sentence included only six months’ confinement, the CA
was indeed authorized to grant such a request. Art. 60, UCMJ. Additionally,
since the CA specifically acknowledged consideration of the appellant’s 1 July
2016 clemency request before taking action on the sentence, we are confident
the CA was aware that he could grant a reduction in the appellant’s sentence
and simply chose not to exercise that discretion. See United States v.
Doughman, 57 M.J. 653, 655 (N-M. Ct. Crim. App. 2002) (stating that “[i]n
the absence of evidence to the contrary, we will presume that the convening
authority has considered clemency matters submitted by the appellant prior
to taking action.”).
   Additionally, we do not find that the trial defense counsel’s erroneous
request concerning the punitive discharge undermined his credibility with
the CA since there is no evidence in the record of trial that the CA was made
aware that this was an erroneous request. On this point, we note that the
SJA failed to clarify in the SJAR, or the SJAR addendum, that the CA was
not permitted to disapprove the punitive discharge. Therefore, it appears the


    5 We are compelled to note that the appellant did not submit with his brief an
affidavit alleging prejudice suffered from trial defense counsel’s error. When
addressing concerns of ineffective assistance of counsel in the post-trial process, the
record of trial, alone, will rarely contain evidence of prejudice. Consequently, in order
for us to be able to thoroughly evaluate such claims for prejudice, it is often
incumbent upon an appellant to submit an affidavit setting forth how counsel’s
deficient performance prejudiced him. See United States v. Lewis, 42 M.J. 1, 4-5
(C.A.A.F. 1995).
    6We acknowledge that it is unclear to what extent, if any, trial defense counsel
abandoned this request, since the second clemency submission, while it again asked
the CA to disapprove the bad-conduct discharge, neither renewed the request to
disapprove any remaining confinement nor referenced that aspect of the original
clemency submission.


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                    United States v. McCallon, No. 201600307


CA believed he could disapprove the punitive discharge and chose not to do
so.
    Finally, we are further convinced that the appellant suffered no prejudice
based upon his pretrial agreement not only reducing the forum from a
general to a special court-martial, but also limiting his conviction related to
the actual encounter with the victim to an assault consummated by a battery.
In light of all these facts, we are firmly convinced that trial defense counsel’s
erroneous requests in the appellant’s clemency submissions did not prejudice
the appellant.
                               III. CONCLUSION
   The findings and sentence as approved by the CA are affirmed.


                                     For the Court




                                      R.H. TROIDL
                                      Clerk of Court




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