                 UNITED STATES NAVY-MARINE CORPS
                    COURT OF CRIMINAL APPEALS
                         WASHINGTON, D.C.

                                   Before
               R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                          Appellate Military Judges

                          UNITED STATES OF AMERICA

                                      v.

                             FRANCIS L. CAPTAIN
                       SERGEANT (E-5), U.S. MARINE CORPS

                               NMCCA 201300137
                           GENERAL COURT-MARTIAL

Sentence Adjudged: 11 January 2013.
Military Judge: CDR John Maksym, JAGC, USN.
Convening Authority: Commanding General, 3d Marine
Logistics Group, Okinawa, Japan.
Staff Judge Advocate's Recommendation: LtCol P.D. Sanchez,
USMC.
For Appellant: LT Carrie Theis, JAGC, USN.
For Appellee: Capt Cory Carver, USMC.

                                29 July 2014

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                       OPINION OF THE COURT
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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.

PER CURIAM:

     A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of abusive sexual contact in violation of Article
120, Uniform Code of Military Justice. 1 The military judge
sentenced the appellant to confinement for 5 years and 6 months,
1
    10 U.S.C. § 920.
reduction to pay grade E-1, forfeiture of all pay and
allowances, a $50,000.00 fine, and a dishonorable discharge.
The convening authority disapproved the fine and approved the
remaining sentence. In accordance with a pretrial agreement,
the convening authority suspended all confinement in excess of 4
years.

    The appellant raises two assignments of error. First, he
claims that trial defense counsel provided ineffective
assistance by failing to offer evidence in extenuation and
mitigation in sentencing. Second, he claims that trial defense
counsel provided ineffective assistance by conceding the
appropriateness of a dishonorable discharge without the
appellant’s consent. As both assignments of error address
whether trial defense counsel was ineffective during sentencing,
we analyze them together.

     We have reviewed the record of trial, the parties’
pleadings, the appellant’s affidavit, trial defense counsel’s
declaration, and the record of the DuBay 2 hearing that we
ordered. We conclude that the findings and sentence are correct
in law and fact and that no error was committed that was
materially prejudicial to the substantial rights of the
appellant. 3 Specifically, we find that the appellant failed to
meet his burden of showing that trial defense counsel provided
ineffective assistance during the sentencing phase of the
appellant’s court-martial.

                                   Background

     The appellant pleaded guilty at a general court-martial to
abusive sexual contact pursuant to a pretrial agreement. In
exchange for the appellant’s pleas, the convening authority
agreed to dismiss additional charges of sexual assault and
suspend all confinement in excess of 48 months.

     At sentencing, the Government offered the testimony of the
victim and recommended a sentence of confinement for five years,
reduction to E-1, total forfeitures, and a dishonorable
discharge. 4 Trial defense counsel offered only the unsworn
statement of the appellant and recommended a sentence of
confinement for two years, reduction to E-1, and a dishonorable

2
    United States v. DuBay, 37 C.M.R. 411 (C.M.A 1967).
3
    Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).
4
    Record at 75.
                                        2
discharge. 5 The maximum punishment allowable was confinement for
seven years, forfeiture of all pay and allowances, reduction to
E-1, a fine, and a dishonorable discharge.

     In a post-trial affidavit, the appellant alleges that trial
defense counsel was ineffective for two reasons: (1) he failed
to call character witnesses or offer documentary evidence of the
appellant’s military service in extenuation and mitigation; and
(2) he argued for a dishonorable discharge without the
appellant’s consent. We concluded that we could not resolve
either claim without further fact-finding and ordered a DuBay
hearing. The DuBay hearing record was authenticated and
returned to this Court with the military judge’s findings of
fact and conclusions of law.

                                    Discussion

       A military judge’s DuBay findings of fact on an issue of
ineffective assistance of counsel are reviewed under a clearly
erroneous standard while conclusions of law and the question of
prejudice are reviewed de novo. 6 Finding no clear error, we
accept the DuBay judge’s findings of fact and adopt them as our
own. 7

     The Sixth Amendment to the U.S. Constitution guarantees an
accused’s right to effective assistance of counsel. We analyze
claims of ineffective assistance of counsel under the test
enunciated by the Supreme Court in Strickland v. Washington. 8
Thus, 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.” 9 We review both parts of the
Strickland test de novo. 10


5
     Id. at 78.
6
     United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2004).
7
  We note that the appellant did not object to the same judge presiding at the
DuBay hearing as his court-martial, despite being given the opportunity to do
so. Record of DuBay Hearing at 9-10 and 118-122.
8
     466 U.S. 668 (1984).
9
  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).
10
     United States v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008).


                                         3
     For the first part of the Strickland test, we “must indulge
a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance . . . .” 11 The
appellant “bears the burden of establishing the truth of the
factual allegations that would provide the basis for finding
deficient performance.” 12 At the sentencing phase, trial defense
counsel may be ineffective “when counsel either fails to
investigate adequately the possibility of evidence that would be
of value to the accused in presenting a case in extenuation and
mitigation or, having discovered such evidence, neglects to
introduce that evidence before the court-martial.” 13

     Here, after adequate investigation into the matter, trial
defense counsel made a tactical decision not to call any of the
potential character witnesses that the appellant suggested. 14
The tactical reasoning behind this decision was to avoid opening
the door to potentially damaging evidence that the Government
could offer in rebuttal. This tactical reasoning was reasonable
and, as such, we agree with the conclusion of the DuBay judge
that trial defense counsel was not deficient in failing to call
sentencing witnesses.

     Trial defense counsel also decided not to offer any
military records documenting the appellant’s combat deployments.
Trial defense counsel again expressed concern that offering such
evidence would do more harm than good by opening the door for
rebuttal by the Government. With the benefit of hindsight, this
tactical reasoning is questionable since it is unlikely that the
Government could have effectively rebutted official military
documentation of the appellant’s deployment history. However,
while the trial defense counsel’s tactical reasons may have been
questionable, based on the record before us we cannot say that
the decision was outside “the wide range of reasonable
professional assistance.” 15 The right to effective assistance of
counsel does not entitle an accused to perfect assistance of


11
     466 U.S. at 689.
12
     United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (citation omitted).
13
  United States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000) (quoting United
States v. Boone, 49 M.J. 187, 196 (C.A.A.F. 1998)) (internal quotation marks
omitted).
14
     Record of DuBay Hearing at 127-30.
15
     Strickland, 466 U.S. at 689.


                                          4
counsel. A mere disagreement over trial tactics does not rise
to the level of a Sixth Amendment violation. 16

     Finally, the appellant claims that trial defense counsel
provided ineffective assistance of counsel by conceding the
appropriateness of a dishonorable discharge without his client’s
consent. It is well-established that an accused may request a
punitive discharge in lieu of confinement, or to mitigate the
length of confinement. Thus, a defense counsel is permitted to
advocate on behalf of his client for such punishment. However,
“when defense counsel does seek a punitive discharge . . . -
even as a tactical step to accomplish mitigation of other
elements of a possible sentence - counsel must make a record
that such advocacy is pursuant to the accused’s wishes.” 17 In
short, the law requires that there be “an adequate record of
appellant’s desire that a punitive discharge be actually
imposed.” 18

     Here, trial defense counsel admitted in his post-trial
declaration that he failed to make an adequate record of the
fact that the appellant had consented to his arguing for a
dishonorable discharge. But he maintained in his declaration
and in his testimony at the DuBay hearing that he had fully
discussed the matter with the appellant before trial, and that
the appellant had agreed with the tactic of requesting a
dishonorable discharge in the hope of receiving less
confinement. 19 Trial defense counsel testified at the DuBay
hearing that the appellant’s overriding concern was “to serve
the least amount of confinement that he could serve.” 20 At the
DuBay hearing the appellant agreed that he told his trial
defense counsel that he wanted to avoid incarceration. The
military judge found trial defense counsel credible on this
point. 21 We agree and conclude that despite counsel’s failure to

16
  We note that the military judge was aware of the appellant’s combat
deployments, and took them into account during sentencing. DuBay Hearing
Findings of Fact and Conclusions of Law at 13-14.
17
  United States v. Dresen, 40 M.J. 462, 465 (C.M.A. 1994) (citations
omitted).
18
  United States v. Pineda, 54 M.J. 298, 301 (C.A.A.F. 2001) (citation
omitted).
19
   DuBay Hearing Findings of Fact and Conclusions of Law at 11 and Record of
DuBay Hearing at 124.
20
     Record of DuBay Hearing at 124.
21
     DuBay Hearing Findings of Fact and Conclusions of Law at 14.
                                         5
memorialize a record of this understanding, we find no deficient
performance that implicated the appellant’s Sixth Amendment
right to counsel.

     Having determined that the appellant did not meet his
burden to show that trial defense counsel’s performance was
deficient within the meaning of Strickland, we do not reach the
second part of the Strickland analysis.

                           Conclusion

     We affirm the findings and sentence as approved by the
convening authority.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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