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

                             No. 201700249
                         _________________________

                   UNITED STATES OF AMERICA
                            Appellee

                                      v.

                         JOHNNY S. PEREZ
                   Corporal (E-4), U.S. Marine Corps
                               Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

       Military Judge: Lieutenant Colonel M. J. Kent, USMC
        (arraignment); Major Mark D. Sameit, USMC (trial).
   For Appellant: Commander Suzanne M. Lachelier, JAGC, USN.
             For Appellee: Major Kelli A. O’Neil, USMC;
               Lieutenant Kimberly Rios, JAGC, USN.
                      _________________________

                       Decided 12 September 2018
                        _________________________

  Before H UTCHISON , P RICE , and T ANG , 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 general court-martial convicted the appel-
lant, pursuant to his pleas, of one specification of attempting to manufacture
3,4 methylenedioxy-methamphetamine (MDMA), one specification of
attempting to distribute MDMA, and one specification of conspiring to
manufacture and distribute MDMA in violation of Articles 80 and 81,
Uniform Code of Military Justice (UCMJ) 10 U.S.C §§ 880 and 881. 1 The


   1  The appellant pleaded guilty to the greater offenses of manufacturing and
distributing MDMA in violation of Article 112a, UCMJ, 10 U.S.C. § 912a, but was
appellant was sentenced to 13 months’ confinement and a bad-conduct
discharge.

    In his sole assignment of error, the appellant contends that his trial
defense counsel was ineffective because he failed to investigate the case and
failed to inform the appellant prior to trial that there was no positive
laboratory test confirming the presence of MDMA. 2 After careful considera-
tion of the record of trial and the parties’ pleadings, we conclude the findings
and sentence are correct in law and fact, and find no error materially
prejudicial to the appellant’s substantial rights. Arts. 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a) and 866(c).

                                   I. BACKGROUND
    The appellant entered into a conspiracy with fellow Marines, Private (Pvt)
CB and Corporal (Cpl) FL, to manufacture and distribute MDMA. During the
course of that conspiracy, the appellant advised Pvt CB about the fair market
price for MDMA, how to manufacture it, and how to sneak MDMA into a local
dance club. He also instructed Pvt CB about proper manufacturing tech-
niques: sanitizing a clean table, organizing the MDMA powder into lines, and
scooping the powder into clean capsules. Finally, the appellant recruited Cpl
FL into the conspiracy so that Cpl FJL could find new potential buyers.

    In addition to conspiracy, the appellant was initially charged with and
pleaded guilty to manufacturing and distributing MDMA. 3 During the
providence inquiry, however, the military judge learned that the only
laboratory test conducted on any substance seized from the appellant’s co-
conspirator, revealed the substance to be ethylone, not MDMA. As a result,
the military judged found the appellant’s pleas to manufacturing and
distributing MDMA improvident because MDMA had not “been identified
beyond a reasonable doubt.” 4 Instead, the military judge found the appellant
provident to the lesser included offenses of attempted manufacture and
attempted distribution of MDMA. After advising the appellant on the
elements of attempt, and conducting a plea colloquy on both attempted
manufacturing and attempted distribution, the military judge confirmed the
appellant had no questions about his pleas of guilty and that he still wanted
to plead guilty.


found guilty of the lesser included offense of attempts in violation of Article 80,
UCMJ, 10 U.S.C. § 880.
   2   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
   3  See Charge Sheet. The appellant pleaded guilty pursuant to Article 77, UCMJ,
as a co-conspirator who “aids, abets, counsels, commands or procures the commission
of an offense or who causes an act to be done[.]” Record at 22. The appellant testified
that Pvt CB actually manufactured and distributed the MDMA.
   4   Record at 36.


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    The appellant asserts in a post-trial affidavit that his trial defense coun-
sel failed to inform him that there was no positive laboratory result for
MDMA, and had he been made aware of that fact, he “would not have entered
into [a] pretrial agreement, and would have wanted a trial[.]” 5

                                     II. DISCUSSION
    The Sixth Amendment entitles criminal defendants to representation that
does not fall “below an objective standard of reasonableness” in light of
“prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 688
(1984). To establish 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. Datavs, 71 M.J.
420, 424 (C.A.A.F. 2012) (citations omitted). In reviewing for ineffectiveness,
we look at the questions of deficient performance and prejudice de novo. Id.
However, we “need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the [appellant].”
Strickland, 466 U.S. at 697. “Rather, ‘[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which . . .
will often be so, that course should be followed.’” Datavs, 71 M.J. at 424-25
(quoting Strickland, 466 U.S. at 697.).

    In order to show prejudice in the context of a guilty plea, the appellant
must “show specifically that ‘there is 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. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000)
(quoting Hill v. Lockhart, 474 U.S. 52, 59, (1985)). This is an objective
inquiry. Doughty v. United States, No. 9900437, 2013 CCA LEXIS 520, at *22
(N-M. Ct. Crim. App. 27 Jun 2013) (unpub. op.) (citations omitted). Here,
even assuming arguendo that the trial defense counsel’s performance was
deficient—that he failed to discover or disclose to the appellant the results of
the lab tests—we find no prejudice and conclude there is no reasonable
probability that the appellant would have pleaded not guilty and insisted on
going to trial.

    First, the appellant’s plea to conspiracy to manufacture and distribute
MDMA was unaffected by the lab tests. Second, the appellant acknowledged
in a stipulation of fact entered into prior to trial that he “did not know the
exact chemical composition of the substance” he manufactured and distribut-
ed, but pleaded to the greater offenses anyway. 6 Finally, after the lab results
were disclosed in open court and the military judge declined to accept the
appellant’s pleas to the greater offenses of manufacturing and distribution of
MDMA, the appellant confirmed that he had enough time to discuss his case


   5   Appellant’s Affidavit of 24 Jan 18 at 2.
   6   Prosecution Exhibit 1 at 3.



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with his trial defense counsel, that he was satisfied with his trial defense
counsel, that he understood he could withdraw his guilty pleas, and that he,
nevertheless, still wanted to plead guilty to attempting to manufacture and
attempting to distribute MDMA. Consequently, “the appellate filings and the
record as a whole compellingly demonstrate the improbability” that the
appellant would have pleaded not guilty and insisted on going to trial. United
States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). He was afforded that very
opportunity by the military judge and declined to exercise it.

                              III. CONCLUSION
   The findings and the sentence are affirmed.
                                   For the Court




                                   RODGER A. DREW, JR.
                                   Clerk of Court




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