         United States Navy-Marine Corps
             Court of Criminal Appeals
                            _________________________

                              UNITED STATES
                                 Appellee

                                         v.

                     Benjamin W. SKAGGS
             Lance Corporal (E-3), U.S. Marine Corps
                           Appellant
                            _________________________

                                No. 201800203
                            _________________________

       Appeal from the United States Navy-Marine Corps Trial Judiciary.
                            Decided: 22 January 2019.
                            _________________________

         Military Judge: Lieutenant Colonel Jeffrey V. Munoz, USMC.
    Approved Sentence: Reduction to E-1, confinement for 12 months, and
      a bad-conduct discharge.1 Sentence adjudged 22 March 2018 by a
     special court-martial convened at Marine Corps Air Station Yuma,
             Arizona, consisting of a military judge sitting alone.
           For Appellant: Captain Bree A. Ermentrout, JAGC, USN.
           For Appellee: Lieutenant Timothy C. Ceder, JAGC, USN;
                  Lieutenant Kimberly Rios, JAGC, USN.
                            _________________________

          This opinion does not serve as binding precedent, but
               may be cited as persuasive authority under
            NMCCA Rule of Practice and Procedure 30.2(b).



   1 The convening authority approved the sentence as adjudged in accordance with
a pretrial agreement. In exchange for his plea of guilty, the appellant’s case was re-
ferred to a special court-martial.
                   United States v. Skaggs, No. 201800203


                          _________________________

              Before FULTON, CRISFIELD, and HITESMAN,
                        Appellate Military Judges.

PER CURIAM:
    A military judge sitting as a special court-martial convicted the appellant,
pursuant to his plea, of two specifications of assault consummated by a bat-
tery in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 928.
   The appellant raises two assignments of error:
       I. The appellant did not receive effective assistance of counsel
          in his post-trial representation when detailed defense coun-
          sel requested relief the convening authority was not author-
          ized to grant.
       II. The court-martial lacked jurisdiction where the convening
           authority referred the charges to a court-martial convened
           by his subordinate.
   We find no error and affirm the findings and sentence.

                              I. BACKGROUND

    While intoxicated, the appellant punched his wife, stomped on her chest,
and choked her with his hand. Following the appellant’s guilty plea, the con-
vening authority’s (CA) staff judge advocate (SJA) advised that the CA could
not disapprove, commute, or suspend the sentence of confinement or the bad-
conduct discharge but that he could act to defer those punishments, and could
modify any other part of the adjudged sentence. The Victim’s Legal Counsel
submitted a request to the CA pursuant to RULE FOR COURTS-MARTIAL
(R.C.M.) 1105A, MANUAL FOR COURTS MARTIAL, UNITED STATES (2016 ed.),
on behalf of the victim asking the CA to reduce the appellant’s sentence to six
months’ confinement. The SJA submitted an addendum to the initial recom-
mendation again recommending that the CA approve the sentence as ad-
judged. Based on the victim’s letter, the appellant then submitted clemency
matters pursuant to R.C.M. 1105, requesting only that the CA reduce his sen-
tence of confinement to six months. In his second addendum to his recom-
mendation, the SJA stated that the appellant’s clemency request did not con-
tain “applicable relief” and again recommended that the CA approve the sen-
tence as adjudged. After considering the staff judge advocate’s recommenda-
tions and addendums, matters submitted by the victim, and all matters sub-
mitted by the appellant, the CA approved the sentence as adjudged.

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                   United States v. Skaggs, No. 201800203


                               II. DISCUSSION

A. Ineffective Assistance of Counsel
   The appellant asserts that he received ineffective assistance of counsel
because his trial defense counsel erroneously requested relief that the CA
was not permitted to grant.
    “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 effec-
tive assistance of counsel.” United States v. Scott, 24 M.J. 186, 187-88 (C.M.A.
1987) (citations omitted). That right extends to post-trial proceedings. United
States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). In reviewing claims of in-
effective assistance of counsel, we “look[] at the questions of deficient perfor-
mance and prejudice de novo.” United States v. Datavs, 71 M.J. 420, 424
(C.A.A.F. 2012) (citation and internal quotation marks omitted). However, we
“must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” United States v. Tippit, 65
M.J. 69, 76 (C.A.A.F. 2007) (quoting Strickland v. Washington, 466 U.S. 668,
689 (1984)). Thus, the appellant bears the burden of demonstrating (1) that
his counsel’s performance was deficient to the point that he “was not func-
tioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment” and (2) that
the deficient performance prejudiced the defense. Id. (citations and internal
quotation marks omitted).
    In evaluating claims of post-trial ineffective assistance of counsel, courts
must give an appellant the benefit of the doubt and find that “there is mate-
rial 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)).
    It is well established that under Article 60(c)(4), UCMJ, a CA may not
“disapprove, commute, or suspend in whole or in part an adjudged sentence of
confinement for more than six months or a sentence of dismissal, dishonora-
ble discharge, or bad conduct discharge” unless the trial counsel recommends
so in recognition of the appellant’s “substantial assistance” or pursuant to the
terms of the pretrial agreement. Neither exception applies in this case and
the CA could not legally grant the trial defense counsel’s requested relief. See
United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App. 2016) (holding
such an action by the CA to be ultra vires).
   Despite the trial defense counsel’s clear misunderstanding of Article 60,
UCMJ, we conclude that the appellant has not made a colorable showing of
possible prejudice. The appellant has not articulated any specific prejudice
that resulted from the request for unauthorized relief, and has submitted no


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                    United States v. Skaggs, No. 201800203


evidence indicating how his trial defense counsel’s clemency submission con-
trasted with his wishes.2 While the CA had some limited discretion to act up-
on the appellant’s reduction in rank and to defer automatic forfeitures, the
appellant submitted no evidence that he desired any such relief, or alterna-
tively, that he was improperly advised regarding any such potential clemen-
cy. Accordingly, we find the appellant has failed to meet his burden to show
that his trial defense counsel was ineffective.

B. Jurisdiction
    Appellant’s second assignment of error asserts that the court-martial
lacked jurisdiction because the CA referred the charges to a court-martial
convened by a subordinate commander. Appellant presumes this because an
erroneous convening order was included in the record of trial. This court
granted the government’s motion to attach the correct convening order to the
record thus correcting the administrative error and mooting this assignment
of error. This court recognizes that administrative error alone does not rise to
the level of a jurisdictional defect. See United States v. Gebhart, 34 M.J. 189,
192-193 (C.M.A. 1992). The appellant negotiated and entered into a pretrial
agreement with the CA and the trial counsel announced the appropriate ju-
risdictional information on the record. We are confident that the Command-
ing General, Third Marine Aircraft Wing, had in fact convened the special
court-martial to which the appellant’s offenses were referred and at which
they were adjudicated.




   2  See United States v. Starling, 58 M.J. 620, 622-23 (N-M. Ct. Crim. App. 2003)
(finding that “bare allegations” without submitting affidavits showing how counsel
acted contrary to appellant’s wishes do not establish “deficient representation.”);
United States v. Pierce, 40 M.J. 149, 151 (C.M.A. 1994) (finding that “vague or gen-
eral intimations” with regards to what the appellant would have submitted to the
convening authority are insufficient to show prejudice).


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                   United States v. Skaggs, No. 201800203


                             III. CONCLUSION

    Having carefully considered the appellant’s assigned errors, the record of
trial, and the parties’ submissions, we conclude the findings and sentence are
correct in law and fact and that no error materially prejudiced the appellant’s
substantial rights. Arts. 59(a) and 66(c), UCMJ. Accordingly, the findings and
sentence as approved by the CA are AFFIRMED.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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