          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                        Airman First Class GREGORY D. WEBB
                                United States Air Force

                                        ACM 38071 (recon)

                                             22 July 2014

         Sentence adjudged 17 November 2011 by GCM convened at Eglin
         Air Force Base, Florida. Military Judge: W. Thomas Cumbie (sitting
         alone).

         Approved sentence: Bad-conduct discharge, confinement for 12 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Christopher D. James.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Daniel J. Breen;
         Major Rhea A. Lagano; Major Erika L. Sleger; and Gerald R. Bruce,
         Esquire. (Appellate Gov’t Intern – Allison R. Barbo)

                                                 Before


                             ALLRED, MITCHELL, and WEBER
                                 Appellate Military Judges

                                  OPINION OF THE COURT
                                 UPON RECONSIDERATION

                   This opinion is subject to editorial correction before final release.


PER CURIAM:

       A general court-martial composed of a military judge alone convicted the
appellant in accordance with his pleas of committing indecent acts; communicating
indecent language to a child under the age of 16 years; inducing a minor to engage in
sexually explicit conduct; and possessing child pornography, in violation of Articles 120
and 134, UCMJ, 10 U.S.C. §§ 920, 934. The court sentenced him to a bad-conduct
discharge, confinement for 18 months, and reduction to E-1. In accordance with a
pretrial agreement, the convening authority approved the bad-conduct discharge and
reduction to E-1, but only 12 months of the adjudged confinement.

                                          Procedural History

       On 25 January 2013, The Judge Advocate General of the Air Force appointed
Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force
Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the
time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate
military judge, was serving as a civilian litigation attorney in the Department of the
Air Force. On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority
under title 5, United States Code, section 3101 et seq.,” issued a memorandum that
“appoint[ed] Mr. Laurence M. Soybel, a civilian employee of the Department of the
Air Force, to serve as appellate military judge on the Air Force Court of Criminal
Appeals.” Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force Eric
Fanning (25 June 2013).

       When the appellant’s case was originally before us, he argued he had received
ineffective assistance of counsel during the post-trial clemency phase.

        On 18 July 2013, we issued a decision denying the appellant relief. 1 United States
v. Webb, ACM 38071 (recon) (A.F. Ct. Crim. App. 18 July 2013) (unpub. op.). Pursuant
to his appointment by the Secretary of Defense, Mr. Soybel was a member of that panel.
The appellant moved to vacate the decision on the basis of Mr. Soybel’s participation.
On 31 October 2013, our superior court converted the appellant’s motion to vacate,
which was pending before our Court, into a motion for reconsideration. United States v.
Webb, 73 M.J. 91 (C.A.A.F. 2013) (mem.). On 15 April 2014, our superior court issued
its decision in United States v. Janssen, 73 M.J. 221, 225 (C.A.A.F. 2014), holding that
the Secretary of Defense did not have the legislative authority to appoint appellate
military judges and that his appointment of Mr. Soybel to this Court was “invalid and of
no effect.”

       In light of Janssen, we granted the motion for reconsideration on 29 April 2014
and permitted the appellant to file a supplemental assignment of errors. The appellant
submitted a supplemental assignment of errors asserting he is entitled to relief due to
excessive post-trial processing delays. With a properly constituted panel, we have
reviewed the appellant’s case, to include the appellant’s previous and current filings and


1
  After the appointment of Mr. Soybel by the Secretary of Defense on 25 June 2013, this Court sua sponte
reconsidered its 24 April 2013 opinion and issued a new opinion on 18 July 2013. The two panels had identical
members.


                                                     2                                   ACM 38071 (recon)
the previous opinions issued by this Court. Finding no error that materially prejudices a
substantial right of the appellant, we affirm the findings and sentence.

                                          Background

        In a declaration submitted in support of his assignment of errors, the appellant
claimed his counsel explained the clemency process but failed to discuss his clemency
submissions with him. In a responsive declaration, the appellant’s trial defense counsel
stated he discussed clemency by phone with the appellant and that the appellant sent a
personal clemency letter to him for submission to the convening authority. Trial defense
counsel made a reasoned tactical decision to submit the appellant’s letter unpolished with
legalese to convey a “more honest” perception of the appellant. In his clemency
statement, the appellant asked for a further reduction in confinement, explaining, as he
did at trial, that he recognized the wrongfulness of his conduct and would work with sex
offender counselors.

        This Court reviews claims of ineffective assistance of counsel de novo.
United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). When reviewing such claims,
we follow the two-part test outlined by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). See United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007). Our superior court has applied this standard to military courts-martial,
noting that “[i]n order 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.” United States v. Green, 68 M.J. 360, 361
(C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687; Mazza, 67 M.J. at 474).

        The right to effective representation extends to post-trial proceedings.
United States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). Defense counsel is
responsible for post-trial tactical decisions but should act “after consultation with the
client where feasible.” United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994)
(citation omitted). Defense counsel may not “submit matters over the client’s objection.”
United States v. Hood, 47 M.J. 95, 97 (C.A.A.F. 1997) (citation omitted).

        We need not decide if defense counsel was deficient during post-trial representation
if the second prong of Strickland regarding prejudice is not met. United States v.
Saintaude, 61 M.J. 175, 183 (C.A.A.F. 2005). Our superior court has held that “[e]rrors in
post-trial representation can be tested for prejudice.” United States v. Lee, 52 M.J. 51, 53
(C.A.A.F. 1999) (citing United States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997)). The
appellant need only make a “colorable showing of possible prejudice.” Id. (internal
quotation marks and citation omitted). Taking the appellant’s affidavit at face value and
considering the allegations of prejudice contained therein, we hold the appellant has failed
to demonstrate prejudice.



                                             3                             ACM 38071 (recon)
        The appellant contacted the 13-year-old daughter of a close family friend by text
message, induced her to send sexually explicit photographs to him, sent her a photograph
of his exposed penis, and exchanged sexually explicit text messages with her. He faced a
maximum of 47 years confinement, but the convening authority agreed to cap
confinement at 12 months if the appellant pled guilty. Before taking action, the
convening authority considered the appellant’s clemency petition. Under these
circumstances, the prospect of a further reduction in confinement by submission of
additional clemency matters was extremely remote, and we find that the appellant has
failed to make even a colorable showing of possible prejudice. See United States v.
Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998). Therefore, we “need not decide if defense
counsel was deficient . . . because the second Strickland prong is not met.” Lee,
52 M.J. at 53.

                            Appellate Review Time Standards

        We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006)
(citations omitted). A presumption of unreasonable delay arises when appellate review is
not completed and a decision is not rendered within 18 months of the case being docketed
before this Court. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The
Moreno standards continue to apply as a case remains in the appellate process.
United States v. Mackie, 72 M.J. 135, 135–36 (C.A.A.F. 2013). The Moreno standard is
not violated when each period of time used for the resolution of legal issues between this
Court and our superior court is within the 18-month standard. Id. at 136; United States v.
Roach, 69 M.J. 17 (C.A.A.F. 2010).

       This case was docketed for appeal on 23 January 2012, and this Court rendered its
decision on 18 July 2013. This did not exceed the 18-month standard established in
Moreno. As stated supra, our superior court recently decided that one of the judges who
participated in that decision was not properly appointed. See Janssen, 73 M.J. at 222.
Accordingly, we have considered the appellant’s court-martial before a properly
constituted panel and have issued this decision. The time between our superior court’s
action and this decision has not exceeded 18 months; therefore, the Moreno presumption
of unreasonable delay is not triggered. See Mackie, 72 M.J. at 136.

        Additionally, Article 66(c), UCMJ, empowers appellate courts to grant sentence
relief for excessive post-trial delay without the showing of actual prejudice required by
Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In
United States v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), our Navy and
Marine Court colleagues identified a “non-exhaustive” list of factors to consider in
evaluating whether Article 66(c), UCMJ, relief should be granted for post-trial delay.


                                             4                             ACM 38071 (recon)
Among the non-prejudicial factors are the length and reasons for the delay; the length and
complexity of the record; the offenses involved; and the evidence of bad faith or gross
negligence in the post-trial process. Id. at 607. We find there was no bad faith or gross
negligence in the post-trial processing. The reason for the delay was to allow this Court
and our superior court to fully consider a constitutional issue of first impression about
whether the Secretary of Defense has the authority under the Appointments Clause 2 to
appoint civilian employees to the service courts of criminal appeals. We conclude that
sentence relief under Article 66, UCMJ, is not warranted.

                                            Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ. Accordingly, the approved findings and sentence are

                                          AFFIRMED.


                     FOR THE COURT


                     STEVEN LUCAS
                     Clerk of the Court




2
    U.S. CONST. art II § 2, cl 2.


                                              5                           ACM 38071 (recon)
