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

                               Before
          J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       MATTHEW T. ENGLER
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201300365
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 20 May 2013.
Military Judge: CDR Marcus N. Fulton, JAGC, USN.
Convening Authority: Commanding General, 3d Marine
Logistics Group, Okinawa, Japan.
Staff Judge Advocate's Recommendation: LtCol P.D. Sanchez,
USMC.
For Appellant: Capt David Peters, USMC.
For Appellee: Maj Paul Ervasti, USMC; CDR Keith B. Lofland,
JAGC, USN.

                              31 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 unauthorized absence, two specifications of
violating a lawful general order, two specifications of wrongful
drug use, one specification of drug possession, and forty-three
specifications of larceny, in violation of Articles 86, 92,
112a, and 121, Uniform Code of Military Justice, 10 U.S.C. §§
886, 892, 912a, and 921. The military judge sentenced the
appellant to confinement for 102 months, forfeiture of all pay
and allowances, reduction to pay grade E-1, and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged and, except for that part of the sentence extending
to a dishonorable discharge, ordered it executed. Pursuant to a
pretrial agreement, the CA suspended all confinement in excess
of 5 years.

     The appellant’s assignment of error is two-fold: (1) That
civilian defense counsel’s (CDC’s) failure to submit clemency
matters in a timely manner denied the appellant his Sixth
Amendment right to effective assistance of counsel and Fifth
Amendment right to due process of law during post-trial
processing; and (2) that the CA’s issuance of a supplemental
action after appellate review had commenced demonstrated a
disregard for the law and should preclude the CA from acting on
the matter if a new action is directed.

     After carefully considering the record of trial and the
submissions of the parties, we conclude that the findings and
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                             Background

      At the conclusion of his court-martial, the appellant
designated his CDC to receive both his copy of the record of
trial and staff judge advocate’s recommendation (SJAR). In the
23 August 2013 SJAR, the CA’s staff judge advocate (SJA) noted
that no post-trial matters had been received from the appellant,
despite the SJA twice contacting the CDC to remind him of his
client’s right to submit such matters. No RULE FOR COURTS-MARTIAL
1105, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) matters or
R.C.M. 1106(f)(4) comments were received before the CA took
action on the case on 4 September 2013.




                                  2
     Civilian defense counsel ultimately submitted clemency
matters on 30 October 2013. 1 By this time, the appellant’s case
had been docketed with this court for more than a month.
Despite this, the CA issued Supplemental General Court-Martial
Order No. 6-2013 on 16 November 2013, in which he stated that he
considered the additional matters but denied clemency. On 19
December 2013, this court granted appellate defense counsel’s
motion to append this supplemental order to the record of trial.

                   Ineffective Assistance of Counsel

      Where ineffective assistance of counsel is claimed,
“questions of deficient performance and prejudice” are reviewed
de novo. United States v. Gutierrez, 66 M.J. 329, 330-31
(C.A.A.F. 2008) (citation omitted). This court analyzes such
claims using the two-part test outlined in Strickland v.
Washington, 466 U.S. 668 (1984): (1) Whether counsel’s
performance fell below an objective standard of reasonableness,
and (2) if so, whether, but for the deficiency, the result would
have been different. United States v. Paxton, 64 M.J. 484, 488
(C.A.A.F. 2007).

     Counsel is presumed to have performed in a competent,
professional manner. To overcome this presumption, an appellant
must show specific defects in counsel's performance that were
“‘unreasonable under prevailing professional norms.’” United
States v. Quick, 59 M. J. 383, 386 (C.A.A.F. 2004) (quoting
United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001)).
The present record contains no explanation for CDC’s failure to
submit post-trial matters in a timely manner, leaving this Court
to wonder what could justify the CDC’s two-month delay.
However, “‘a court need not determine whether counsel's
performance was deficient before examining the prejudice
suffered by the defendant. . . . If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should
be followed.’” United States v. Datavs, 71 M.J. 420, 424-25
(C.A.A.F. 2012) (quoting Strickland, 466 U.S. at 697).
Accordingly, we turn first to the issue of prejudice.




1
  This submission is not attached to the record of trial and neither party
filed a Motion to Attach the document. The only mention of the 30 October
2013 clemency request is contained in Supplemental General Court-Martial
Order No. 6-2013 signed by the CA on 16 November 2013.
                                      3
     “[I]f counsel who has the legal responsibility to protect
the accused’s post-trial interests is present . . . any error
that occurs in connection with that counsel’s performance . . .
appropriately can be tested for prejudice.” United States v.
Hickok, 45 M.J. 142, 145 (C.A.A.F. 1996) (citations omitted).
Had CDC submitted no clemency request at all, this court would
be left to speculate whether any R.C.M. 1105 matters would have
persuaded the CA to grant clemency.

     In the present case, however, we need not speculate;
indeed, we conclusively know that the CA, after considering all
materials provided by the CDC, would have declined to grant
relief in clemency. While the 16 November 2013 action is a
legal nullity, in that R.C.M. 1107(f)(2) precludes further
action by the CA once a case is forwarded for review, this does
not mean that the document is wholly without value. This
purported second action, denying relief, strongly indicates what
the CA would have done had the CDC submitted post-trial matters
in a timely manner.

     It is the appellant’s burden to prove that, but for the
alleged deficiency in the CDC’s delinquent clemency submission,
the results in his case would have been different. Given the
evidence provided by the second CA’s action, the appellant has
not met this burden.

              Precluding the CA from Further Action

     Since the court is not ordering a new CA’s Action, this
assignment of error is moot.

                           Conclusion

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

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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