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

                             No. 201600075
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
                   ALEXANDER C. OUILLETTE
                Lance Corporal (E-3), U.S. Marine Corps
                              Appellant
                       _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

      Military Judge: Lieutenant Colonel E.A. Harvey, USMC.
     For Appellant: Captain Bree A. Ermentrout, JAGC, USN .
 For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
         USN; Lieutenant Taurean K. Brown, JAGC, USN;
                      _________________________

                         Decided 16 August 2016
                         _________________________

Before FISCHER, RUGH, and CAMPBELL, 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.
                     _________________________
RUGH, Judge:

    A military judge sitting as a general court-martial convicted the
appellant, pursuant to his plea, of one specification of aggravated assault
with a dangerous weapon or other means or force likely to produce death or
grievous bodily harm, in violation of Article 128, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 928. The military judge sentenced the appellant
to three years’ confinement, forfeiture of all pay and allowances, reduction to
pay grade E-1, and a dishonorable discharge. The convening authority (CA)
approved the sentence and, pursuant to a pretrial agreement (PTA),
suspended all confinement in excess of twenty-four months.
    Upon review, we specified one issue: did the appellant receive the
effective assistance of counsel in his post-trial representation when trial
defense counsel requested relief outside the authority of the convening
authority to grant? After considering the pleadings and an affidavit from trial
defense counsel provided pursuant to United States v. Lewis,1 we find no
merit in the specified issue.
                                       I. BACKGROUND

    On the evening of 17 April 2015, the appellant returned to his residence
on board Marine Corps Base Camp Pendleton, California, where he lived
with his wife, K.O. After a heated argument, he placed K.O. in a sleeper hold,
threw her to the ground, strangled her, and repeatedly struck her in the head
with a saucepan. K.O. received significant wounds to her head which bled
profusely. When K.O. attempted to escape, the appellant caught her and
strangled her again. K.O. finally escaped and crawled to a neighbor’s
residence where she was able to contact authorities. Subsequently, the
appellant admitted to strangling and beating K.O. with a saucepan. The bent
saucepan was found at the residence.
   The appellant pleaded guilty pursuant to a PTA, which provided in part
that a punitive discharge “[m]ay be approved as adjudged.”2 The military
judge awarded a dishonorable discharge. In a post-trial clemency filing, trial
defense counsel made a single request: that the CA “disapprove the
dishonorable discharge and award a bad conduct discharge in its place.”3

                                       II. DISCUSSION
A. Clemency powers of the CA
   Formerly, a CA could reduce all or any part of a court-martial sentence as
an act of clemency.4 However, the National Defense Authorization Act for
Fiscal Year 2014 (FY14 NDAA)5 amended Article 60(c)(4), UCMJ, to limit the
CA’s authority to effect sentences for all but the most minor kinds of offenses
committed on or after the effective date of 24 June 2014. See United States v.

   1   42 M.J. 1, 5 (C.A.A.F. 1995).
   2   Appellate Exhibit 11 at 1.
   3   Request for Clemency of 10 Nov 2015 at 1.
   4 Article 60(c)(2), UCMJ, 10 U.S.C. § 860 (2012) (“The convening authority . . . in
his sole discretion, may approve, disapprove, commute, or suspend the sentence in
whole or in part.”).
   5   Pub. L. No. 113-66, 127 Stat. 672 (2013).



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Roller, 75 M.J. 659 (N-M. Ct. Crim. App. 2016) (discussing the application of
the modified Article 60 on cases involving “straddling offenses,” offenses
occurring both before and after the effective date).
    An affected offense—referred to as an “other than qualifying offense”—
meets any one of the following criteria: (1) it was charged under Article 120,
sections (a) or (b), Article 120b, or Article 125, UCMJ; (2) its maximum
authorized punishment exceeds two years; (3) the adjudged sentence for its
conviction includes confinement for more than six months; or (4) the adjudged
sentence for its conviction includes a punitive discharge. Article 60(c)(3)(D),
UCMJ.
   For all cases with “other than qualifying offenses,” Article 60(c)(4) now
provides:
         (A) Except as provided in subparagraph (B) or (C), the
         convening authority . . . 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, dishonorable discharge, or bad conduct discharge.
         (B) Upon the recommendation of trial counsel in recognition of
         the substantial assistance by the accused [or]. . . .
         (C) If a pre-trial agreement has been entered into by the
         convening authority and the accused . . . . the convening
         authority . . . shall have the authority to approve, disapprove,
         commute, or suspend a sentence in whole or in part pursuant
         to the terms of the pre-trial agreement . . . .
However, for both “qualifying” and “other than qualifying” offenses, the CA
may still “disapprove, commute, or suspend, in whole or in part, any portion
of an adjudged sentence not explicitly prohibited,” which includes any
“[r]eduction in pay grade, forfeitures of pay and allowances, fines,
reprimands, restrictions, and hard labor without confinement . . . .”6
    The appellant assaulted his wife on 17 April 2015 after the effective date
of the change. As trial defense counsel acknowledged, the terms of the PTA
did not require the CA to reduce the dishonorable discharge,7 nor did the


   6   Exec. Order. No. 13,696, 80 Fed. Reg. 35,812-13 (22 Jun 2015).
    7 The record contains the following discussion by the military judge regarding the

PTA: “So, it appears that the punitive discharge that was adjudged may be approved.
There was, it looks like, as part of the initial offer from the defense, a provision to
have only the BCD approved, but everybody has – that was lined out, and it looks as
though we have everybody’s signatures, that that does not apply.” Record at 63.
Trial defense counsel and the appellant concurred. Id.

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“substantial assistance exception” in Article 60(c)(4)(B), UCMJ, apply.8 Thus,
the CA could not lawfully grant the appellant’s request to commute the
adjudged dishonorable discharge to a bad- conduct discharge.
    The CA’s discretion to modify the adjudged sentence was limited to action
on the appellant’s reduction in pay grade or forfeiture of pay and allowances.9
As a result, we must evaluate whether appellant received effective assistance
of counsel in the post-trial process when his counsel requested relief outside
the CA’s authority.
B. Ineffective assistance of counsel
     “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 includes the right to effective
assistance of counsel during the post-trial clemency process. See United
States v. Cobe, 41 M.J. 654, 655 (N-M. Ct. Crim. App. 1994) (“One of counsel’s
fundamental duties after trial is to consider and submit, if appropriate, a
petition for clemency to the convening authority on his client's behalf. . . .
This duty is important because an accused’s best hope for sentence relief
after trial [is] the convening authority.” (internal citations omitted)).
    In reviewing claims of ineffective assistance of counsel, we “look at the
questions of deficient performance 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 functioning as the ‘counsel’ guaranteed
by the Sixth Amendment” and (2) that the deficient performance prejudiced
the defense. Id. (citations and internal quotation marks omitted).
    “We do not measure deficiency based on the success of a trial defense
counsel’s strategy, but instead examine whether counsel made an objectively
reasonable choice in strategy from the available alternatives.” United States
v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (citations and internal quotation


   8 Appellee’s Response to Court Order filed on 18 Jul 2016; Trial Defense
Counsel’s Declaration of 14 Jul 2016 at ¶ 2.
   The CA was also prohibited from disapproving the findings.
   9                                                            See Art. 60(c)(3),
UCMJ.



                                      4
marks omitted). “[S]trategic choices made by trial defense counsel are
‘virtually unchallengeable’ after thorough investigation of the law and the
facts relevant to the plausible options.” Id. at 371 (quoting Strickland, 466
U.S. at 690-91).
    “[B]are allegations” of “inadequate representation for failure to
exercise . . . post-trial rights” are not “seriously entertained” by this court,
“without the submission of an affidavit by the appellant stating how counsel’s
inaction contrasted with his wishes.” United States v. Starling, 58 M.J. 620,
622-23 (N-M. Ct. Crim. App. 2003). Where trial defense counsel, by contrast,
submits an affidavit, and “[t]he factual assertions in the affidavit provide a
‘reasonable explanation for counsel’s actions,’” this heavily “weighs against
the appellant overcoming the presumption of competence” of counsel. United
States v. Wilkerson, 2013 CCA LEXIS 367, at *7 (N-M. Ct. Crim. App. 2013
April 30) (quoting United States v. Grigoruk, 52 M.J. 312, 315 (C.A.A.F.
2000)).
    The appellant asserts that trial defense counsel was ineffective because,
“by requesting unauthorized relief” in clemency, he “undermined his
credibility” and appeared to be “unaware of the change in the law.”10
However, the appellant did not submit an affidavit stating how this request
violated his wishes, if at all.
    By contrast, trial defense counsel’s affidavit explained that he “made the
tactical decision to ask for relief beyond the scope of Article 60 with the belief
that [he] might either obtain the relief sought, or receive as a concession more
moderate relief.”11 Additionally, he sought to preserve the appellant’s
opportunity for other post-trial relief should the Article 60 amendments
subsequently be “reversed, relaxed or found unable to withstand judicial
review[.]”12 Trial defense counsel “took this course of action only after
consultation” with his supervisors.13 Trial defense counsel further explained
that “[r]estoration of rank or protection from automatic forfeiture[s]”—two
types of clemency which the CA could have granted—“were not meaningful
to” the appellant, because of appellant’s marital situation.14
    Whether we would or would not pursue the same strategy if we were in
trial defense counsel’s shoes, we cannot say his path here was objectively

   10   Appellant’s Brief of 17 May 2016 at 4-5.
   11   Trial Defense Counsel’s Declaration at ¶ 3 (emphasis added).
   12   Id. at ¶ 7.
   13   Id. at ¶¶ 3 and 8.
   14   Id. at ¶ 9.


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unreasonable, particularly when there is no indication that it was
inconsistent with the appellant’s wishes. Thus, we decline to classify trial
defense counsel’s request in clemency as deficient performance, and we need
not reach the issue of whether appellant’s rights were prejudiced.
                             III. CONCLUSION

   The findings and sentence as approved by the CA are affirmed.

   Senior Judge FISCHER and Judge CAMPBELL concur.


                                For the Court



                                 R.H. TROIDL
                                 Clerk of Court




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