 This opinion is subject to administrative correction before final disposition.




                                 Before
                   HITESMAN, LAWRENCE, and KOVAC,
                        Appellate Military Judges

                          _________________________

                            UNITED STATES
                                Appellee

                                       v.

                     James E. BRIGHTWELL
       Aviation Maintenance Administrationman Third Class (E-4),
                              U.S. Navy
                              Appellant

                              No. 201800146

                          Decided: 5 November 2019

   Appeal from the United States Navy-Marine Corps Trial Judiciary.
   Military Judge: Captain Robert Monahan, JAGC, USN (arraignment);
   Commander Hayes Larsen, JAGC, USN (trial). Sentence adjudged on
   25 January 2018 by a general court-martial convened at Naval Station
   Norfolk, Virginia, consisting of a military judge sitting alone. Sentence
   approved by the convening authority: reduction to E-1, forfeiture of all
   pay and allowances, confinement for 40 months, 1 and a dishonorable
   discharge.

   For Appellant: Captain Kimberly D. Hinson, JAGC, USNR.

   For Appellee: Lieutenant Clayton S. McCarl, JAGC, USN; Captain
   Brian L. Farrell, USMC.




   1  The convening authority suspended confinement in excess of 24 months pursu-
ant to a pretrial agreement.
                 United States v. Brightwell, No. 201800146


                          _________________________

         This opinion does not serve as binding precedent, but
          may be cited as persuasive authority under NMCCA
                   Rule of Appellate Procedure 30.2.

                          _________________________

PER CURIAM:
    Appellant was convicted, in accordance with his pleas, of one specification
of sexual assault and one specification of abusive sexual contact in violation
of Article 120, Uniform Code of Military Justice (UCMJ), 10 USC § 920
(2016).
    Appellant raises two assignments of error: (1) the Government prejudiced
Appellant when it failed to serve his trial defense counsel (TDC) with either
the staff judge advocate (SJA) recommendation or the addendum to the SJA
recommendation as required by RULE FOR COURTS-MARTIAL (R.C.M.) 1106(f),
MANUAL FOR COURTS-MARTIAL (M.C.M.), UNITED STATES (2016 ed.); and
(2) the TDC’s failure to request viable clemency constitutes ineffective assis-
tance of counsel.
   We find no error and affirm.

                              I. BACKGROUND

    Appellant was assigned to USS HARRY S. TRUMAN (CVN-75). On 23
June 2016, the ship made a port visit to Crete, Greece. Appellant and several
shipmates, including the eventual female victim, Aviation Electronics Tech-
nician Third Class (AT3) E.G., went on liberty for the day to a local beach.
One of the shipmates rented a hotel room, and the group spent their day
drinking alcohol at the hotel bar and beach. At the end of the day, Appellant
observed that AT3 E.G. was extremely intoxicated with slurred speech and
that she left the beach for the hotel room in order to rest. Appellant testified
that approximately 15-30 minutes after her departure, he went to the hotel
room to shower. Upon entering the room, Appellant saw AT3 E.G. (still wear-
ing her two-piece swimsuit) slouched over the armrest of the hotel room
couch. Another female Sailor was also in the hotel room; however, she left
after Appellant finished his shower. Once alone, Appellant sat next to AT3
E.G. on the couch and used his hand to touch AT3 E.G.’s vagina underneath
her swimsuit. Appellant testified that AT3 E.G. was heavily intoxicated from
alcohol and barely conscious. AT3 E.G. attempted to thwart Appellant’s ad-
vances by telling him “no” and that she was “too messed up.” Record at 44;
Prosecution Exhibit (PE) 1 at 2. Appellant testified that AT3 E.G. never gave

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                  United States v. Brightwell, No. 201800146


any indication that she wanted to have sex. Nonetheless, Appellant continued
to touch AT3 E.G.’s vagina and eventually penetrated her vagina with his
penis.
    As part of the post-trial proceedings in this case, TDC submitted clemency
matters requesting the convening authority (CA) suspend Appellant’s auto-
matic forfeitures. The SJA recommendation (SJAR) of 3 April 2018 references
this clemency request, but does not provide any advice to the CA regarding
how it should be resolved. Therefore, on 2 May 2018, an addendum to the
SJAR was prepared, this time advising the CA that he was statutorily pre-
cluded from suspending automatic forfeitures under Article 58(b), UCMJ,
because such relief is only available in cases where the accused has depend-
ents–Appellant had no dependents. On this same date, the CA executed his
CA Action denying Appellant’s clemency request. There is no evidence in the
record that the addendum to the SJAR was ever served on the TDC prior to
the CA taking action.

                               II. DISCUSSION

A. Service of the SJAR and Addendum to SJAR
    Appellant alleges prejudice by claiming that he was never served with the
SJAR. Pursuant to R.C.M. 1103(b)(3)(G), “[t]he post-trial recommendation of
the staff judge advocate or legal officer and proof of service on defense counsel
in accordance with R.C.M. 1106(f)(1)” must be attached to the record of trial.
Specifically regarding supplements to the SJAR, “[t]he method of service and
the form of the proof of service are not prescribed and may be by any appro-
priate means.” R.C.M. 1106(f)(7), Discussion.
    In his Appellate and post-trial rights statement, Appellant requested that
a copy of the SJAR be delivered to his counsel. Appellate Exhibit VI. The
record of trial contains a letter, dated 3 April 2018, from the SJA’s office to
TDC enclosing a copy of the SJAR. The proof of service of this letter is also
attached to the Record in the form of an e-mail. This e-mail was sent on 3
April 2018 by the SJA’s office to the military e-mail address of TDC. Accord-
ingly, the record clearly demonstrates that the service requirements of
R.C.M. 1106(f)(1) were satisfied, and Appellant’s claim regarding lack of
service has no basis in fact.
    The evidence further establishes that the letter and e-mail from the
SJA’s office to TDC specifically requested TDC sign and return the “Acknowl-
edgement of Receipt” form. There is no evidence in the record that this
acknowledgement was ever returned by TDC. The record also fails to include
any declaration or other evidence from TDC affirmatively stating that the
SJAR was never served. Nonetheless, “absence of a receipt for the post-trial


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                 United States v. Brightwell, No. 201800146


recommendation does not establish a failure to comply with Rule for Court[s]-
Martial 1106(f)(1), because affirmative proof is not required.” United States v.
Watkins, 35 M.J. 709, 714 (N.M.C.M.R. 1992) (quoting United States v. Diaz-
Carrero, 31 M.J. 920, 921 (A.C.M.R. 1990)). Even “[a]ssuming the appellant
was not served with a copy of the SJA’s recommendation, the erroneous omis-
sion of this procedure will not mandate a new convening authority’s action in
the absence of prejudice to the accused.” Watkins, 35 M.J. at 714-15. Appel-
lant has failed to demonstrate any prejudice.
    Appellant also alleges prejudice because the addendum to the SJAR was
not served on TDC. After service of the SJAR and an opportunity to comment,
the law permits the SJA to “supplement the SJAR in the form of an adden-
dum SJAR.” United States v. Del Carmen Scott, 66 M.J. 1, 3 (C.A.A.F. 2008)
(citing R.C.M. 1106(f)(7)). A copy of the addendum must only be served on the
accused and counsel for the accused if it raises “new matter.” Id. “New mat-
ter” is not specifically defined in the M.C.M., but our superior court has cited
with approval the guidance provided in the Discussion of R.C.M. 1106(f)(7),
defining “new matter” to include: “discussion of the effect of new decisions on
issues in the case, matter from outside the record of trial, and issues not
previously discussed. ‘New matter’ does not ordinarily include any discussion
by the [SJA] . . . of the correctness of the initial defense comments on the
recommendation.” Id.
    Here, the SJAR Addendum was fairly narrow in scope. It was produced to
correct an omission in the original SJAR by providing advice to the CA that
Appellant’s requested clemency of suspending forfeitures was impermissible
pursuant to Article 58(b), UCMJ, because Appellant had no dependents.
There was nothing in this addendum from outside the record of trial and
there were no issues raised in the addendum that were not previously dis-
cussed. There were no additional legal errors raised or post-trial matters
submitted by the victims’ legal counsel. The SJA specifically stated that his
recommendation in the original SJAR “remains the same.” Addendum to
SJAR of 2 May 2018. Accordingly, we find that the addendum did not raise
any new matter under R.C.M. 1106(f)(7) that necessitated service of a copy on
Appellant and his counsel. Even assuming, arguendo, that new matter was
contained in this SJAR Addendum, Appellant must show prejudice by ex-
plaining “what, if anything, would have been submitted to ‘deny, counter, or
explain’ the new matter.” United States v. Rodriguez-Rivera, 63 M.J. 372, 384
(C.A.A.F. 2006) (quoting United States v. Chatman, 46 M.J. 321, 324
(C.A.A.F. 1997)). Appellant has failed to make any showing of prejudice.
Accordingly, this assignment of error is without merit.




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                 United States v. Brightwell, No. 201800146


B. Post-Trial Ineffective Assistance of Counsel
    In his second assignment of error, Appellant claims that TDC provided
ineffective assistance of counsel by failing to request “viable” clemency. In
support of this claim, Appellant files a declaration stating that he “wanted
[TDC] to request any and all clemency that was available.” Declaration of
Appellant of 24 July 2018. For the following reasons, we find no merit in
Appellant’s claim because he fails to meet his burden of establishing colorable
prejudice.
    “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 effec-
tive assistance of counsel.” United States v. Scott, 24 M.J. 186, 187-88 (C.M.A.
1987) (citations omitted). This right extends to post-trial proceedings. United
States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). To analyze claims of inef-
fective assistance of counsel, we apply the two-prong test established by the
Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under
this test, “an appellant must demonstrate both (1) that his counsel’s perfor-
mance was deficient, and (2) that this deficiency resulted in prejudice.” Unit-
ed States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2012) (citing Strickland, 466
U.S. at 687). However, “[w]hen reviewing ineffectiveness claims, ‘a court need
not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant . . . [i]f 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); see also United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012) (“It is
not necessary to decide the issue of deficient performance when it is apparent
that the alleged deficiency has not caused prejudice”) (citation omitted). For
post-trial ineffectiveness claims, the appellant’s burden is low; he must only
demonstrate a “colorable showing of prejudice.” United States v. Wheelus, 49
M.J. 283, 289 (C.A.A.F. 1998) (quoting Chatman, 46 M.J. 323-24).
    Here, Appellant has not made any colorable showing of prejudice. His at-
tempt at demonstrating prejudice merely consists of a one-line statement
generally indicating that he “would have wanted [TDC] to request any and all
clemency that was available.” Declaration of Appellant of 24 July 2018. There
is no additional evidence or argument attached to his declaration. Vague and
generalized claims of this sort are insufficient to demonstrate prejudice. See
United States v. Pierce, 40 M.J. 149, 151 (C.M.A. 1994) (finding that “vague
and general intimations” regarding what an appellant would have submitted
to the CA are insufficient to show prejudice). Moreover, Appellant offers no
argument regarding what the CA “might have done to structure an alterna-
tive form of clemency.” United States v. Capers, 62 M.J. 268, 270 (C.A.A.F.
2005). Appellant already benefited from a pretrial agreement whereby the CA

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                 United States v. Brightwell, No. 201800146


agreed to reduce confinement to 24 months. This was a significantly favora-
ble limitation on confinement given the nature of Appellant’s crimes and his
actions of sexually violating an intoxicated shipmate while deployed overseas.

                             III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we find that the approved findings and the sentence are correct in law and
fact and that there is no error materially prejudicial to the appellant’s sub-
stantial rights. Arts. 59 and 66, UCMJ. Accordingly, the findings and the
sentence as approved by the CA are AFFIRMED.

                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




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