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

                              No. 201600174
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.
                            JOSEPH E. KING
                    Corporal (E-4), U.S. Marine Corps
                               Appellant
                        _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
        Convening Authority: Commanding General, III Marine
               Expeditionary Force, Okinawa, Japan.
 Staff Judge Advocate’s Recommendation : Lieutenant Colonel John
                         M. Hackel, USMC.
         For Appellant: Captain Daniel R. Douglas, USMC.
           For Appellee: Captain Sean M. Monks, USMC.
                      _________________________

                         Decided 18 January 2017
                         _________________________

 Before C AMPBELL , R UGH , and HUTCHISON, 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.

                          _________________________

HUTCHISON, Judge:
    The appellant was convicted, pursuant to his pleas, by a military judge
sitting as a special court-martial, of aggravated assault in violation of Article
128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928. He was
sentenced to reduction to pay grade E-1, forfeiture of $500.00 pay per month
for nine months, a reprimand, and a bad-conduct discharge. The convening
                        United States v. King, No. 201600174


authority (CA) disapproved the reprimand but approved the remainder of the
sentence.
    The appellant raises two assignments of error (AOE): 1) during
presentencing, the military judge abused his discretion when he sustained
objections to evidence of the appellant’s passive demeanor the morning of the
assault and of his contrition following the assault; and, 2) the promulgating
order incorrectly states that the appellant was convicted of two specifications.
After careful consideration of the record of trial, the appellant’s AOEs, and
the pleadings of the parties, we find merit in the appellant’s second AOE and
take corrective action in our decretal paragraph. Following our corrective
action, we are convinced that the findings and sentence are correct in law and
fact and that no error materially prejudicial to the substantial rights of the
appellant remains. Arts. 59(a) and 66(c), UCMJ.
                                    I. BACKGROUND
    The appellant and a group of fellow Marines attended Okuma Fest, a
large party held in a resort area in Okinawa, Japan. While there, on the
evening of 2 May 2015, one of the appellant’s friends was punched in the back
of the head by an unidentified man wearing a red baseball hat. The next
morning, while having breakfast at a nearby restaurant, the appellant and
his friends saw the man with the red hat, later identified as Corporal (Cpl)
M.D.G., standing in line at the restaurant. As the appellant went to refill his
drink, he walked past Cpl M.D.G., “bumped into him,” and told him to “move
bitch.”1 Upon returning from the drink dispenser, the appellant again passed
by Cpl M.D.G., confronted him and, after a short verbal exchange, struck Cpl
M.D.G. on the side of his face with the glass he was carrying. The glass
smashed against Cpl M.D.G’s face and caused several large cuts that
required surgery to repair.
    The appellant was originally charged at general court-martial with a
single specification of maiming and two specifications of aggravated assault,
violations of Articles 124 and 128, UCMJ. Following the appellant’s motion to
dismiss for multiplicity and unreasonable multiplication of charges,2 the
military judge consolidated the two specifications under Charge II into a
single specification and permitted the government to go forward on both the
maiming charge and the aggravated assault charge as contingencies of proof.
Before trial, the appellant entered into a pretrial agreement (PTA) in which
he agreed to plead not guilty to maiming, but guilty to the lesser included
offense of aggravated assault under Charge I and, separately, to plead guilty


   1   Record at 195.
   2   Appellate Exhibit (AE) VI.

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to aggravated assault under Charge II.3 In exchange for his pleas, the
government agreed to refer all charges to a special court-martial4 and to
ultimately withdraw and dismiss the greater offense of maiming.5 Prior to
conducting the providence inquiry, the military judge recapped his previous
ruling during the general court-martial proceedings regarding multiplicity
and unreasonable multiplication of charges:
         I was only allowing both [the] 124 and the 128 offenses to
         remain on the charge sheet for contingencies of proof,
         specifically, that I would instruct the members that the Article
         128 offense is in fact a lesser included offense of the 124
         offense. So in that regard, Corporal King, in Charge I and its
         [s]ole Specification you have pled guilty to the lesser included
         offense of assault with a dangerous weapon or means of force in
         violation of Article 128, UCMJ, which is also the same offense
         covered by Charge II and its [s]ole Specification to which you
         have also pled guilty. So I am viewing this as a single offense.6
    In conducting his providence inquiry, the military judge referred to the
stipulation of fact agreed to by the appellant and the government.7
Discussing the facts surrounding the single altercation between the appellant
and Cpl M.D.G., the stipulation of fact specifically refers to, and the military
judge specifically questioned the appellant about, Charge I.8 The stipulation
of fact does not mention Charge II, and the military judge did not question
the appellant about Charge II.
    Upon completing the providence inquiry, the military judge had the
following exchange with the trial counsel:
         MJ: Trial counsel, what is the government’s position regarding
             the language to which the accused has pled not guilty?


   3   AE XVIII at 4.
   4   AE XIX at ¶ 6.
   5   AE XVIII at ¶ 8b.
   6   Record at 76 (emphasis added).
   7   Prosecution Exhibit (PE) 11.
   8 Id. at ¶ 4. Of note, the stipulation of fact states the altercation occurred 3 May
2015, while the appellant was charged with committing the aggravated assault “on or
about” 2 May 2015. We find no material variance as the date pleaded is reasonably
near 3 May 2015. See United States v. Hunt, 37 M.J. 344, 347 (C.M.A. 1993) (“The
words on or about in pleadings mean that the government is not required to prove
the exact date, if a date reasonably near is established.”) (citations and internal
quotation marks omitted).

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                          United States v. King, No. 201600174


         TC: Sir, in accordance with the pretrial agreement, the greater
             offense of 124, the government would not intend to go
             forward at this point. And that greater offense would be
             dismissed upon pronouncing the sentence and completion
             of appellate review.
         MJ: Very well. That motion is granted.
         ....
                Corporal Joseph E. King, United States Marine Corps, it
                is my duty as military judge to inform you that this court-
                martial finds you:
                Of the charge now pending before this court and in
                accordance with your pleas: Guilty.
                And more specifically, that would be guilty of a violation
                of Article 128, and the single specification thereunder of
                aggravated assault with a weapon or force likely to
                produce death or grievous bodily harm.9
                                    II. DISCUSSION
A. Presentencing evidence
    The appellant contends that the military judge erred when he excluded 1)
testimony regarding Cpl M.D.G.’s intoxication the night prior to the assault;10
and 2) evidence of the appellant’s state of mind prior to the assault –
specifically that the appellant had rented jet skis that he and his friends were
going to ride after they finished breakfast.11 RULE FOR COURTS-MARTIAL
(R.C.M.) 1001(c)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.) states that the defense may present matters in rebuttal of any material
presented by the government and any matters in extenuation and mitigation,
regardless of whether the defense offered such evidence before the findings.
Matters in extenuation may be introduced to explain the circumstances
surrounding the commission of an offense and include evidence of the reasons
for committing the offense which do not constitute a legal justification or
excuse. Id. at 1001(c)(1)(A). Mitigation evidence, on the other hand, is
evidence which tends to lessen the punishment and includes evidence of
particular acts of good conduct or bravery. Id. at 1001(c)(1)(B). However, the
admission or exclusion of mitigation or extenuation evidence “remains subject


   9   Record at 94-95.
   10   Appellant’s Brief and Assignments of Error of 18 Aug 2016 at 3-4.
   11   Id. at 5-6.

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to the rules of evidence and procedure.” United States v. Carter, 74 M.J. 204,
208 (C.A.A.F. 2015).
    We review a military judge’s ruling on the admissibility of sentencing
evidence for an abuse of discretion, United States v. Ediger, 68 M.J. 243, 248
(C.A.A.F. 2010), and will not overturn a military judge’s ruling unless it is
“‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous,’” or
influenced by an erroneous view of the law. United States v. McDonald, 59
M.J. 426, 430 (C.A.A.F. 2004) (quoting United States v. Miller, 46 M.J. 63, 65
(C.A.A.F. 1997)). If we find that a military judge abused his discretion, we
must then determine whether the error substantially influenced the adjudged
sentence. See United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001) (citing
Kotteakos v. United States, 328 U.S. 750, 765 (1946)). If it did, then the result
is materially prejudicial to the appellant’s substantial rights and requires
relief. See United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005); Art.
59(a), UCMJ.
   In determining whether the error substantially influenced the sentence,
“we consider 1) the probative value and weight of the evidence; 2) the
importance of the evidence in light of other sentencing considerations; 3) the
danger of unfair prejudice resulting from the evidentiary ruling; and 4) the
sentence actually imposed, compared to the maximum and to the sentence
the trial counsel argued for.” United States v. Edwards, 65 M.J. 622, 626 (N-
M Ct. Crim. App. 2007) (citations omitted).
    Assuming arguendo that the military judge abused his discretion by
erroneously excluding defense presentencing evidence, we find that any such
error did not substantially influence the adjudged sentence and,
consequently, the appellant suffered no material prejudice to any substantial
right.
   First, we find the probative value of the proffered evidence to be very low.
Whether or not Cpl M.D.G. had been drinking the night prior to the assault
was immaterial; the appellant testified that he confronted Cpl M.D.G. at
breakfast because the appellant believed Cpl M.D.G. had assaulted one of the
appellant’s friends the night before.12 Likewise, despite the military judge’s
exclusion of testimony from one of the appellant’s companions regarding the
appellant’s demeanor the morning of the assault, much of that evidence was

   12 Record at 194-96. Indeed, whether or not Cpl M.D.G. was drunk, or whether or
not Cpl M.D.G. was, in fact, the individual that assaulted the appellant’s friend the
previous night is beside the point. The key fact with regards to extenuation evidence
is that the appellant believed he was acting in retaliation for a wrong committed
against his friend. That evidence “explain[ing] the circumstances surrounding” the
assault was properly before the court and relied upon in assessing a sentence. R.C.M.
1001(c)(1)(A).

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before the court. Indeed, the appellant testified to what he was doing and
thinking the morning of the assault.13
    Second, in light of other sentencing considerations–such as the serious
nature of the charge and injuries sustained by Cpl M.D.G., the appellant’s
sworn testimony, the testimony of three superior noncommissioned officers as
to the appellant’s good military character, the testimony of the appellant’s
wife, the numerous letters attesting to the appellant’s good character, the
appellant’s letter of apology, and the victim preference letter from Cpl
M.D.G.–the excluded evidence was less important.
    Third, the danger of unfair prejudice resulting from the military judge’s
ruling was ameliorated because, as previously noted, the substance of the
proffered evidence was introduced by other means and was before the court
for sentencing.
    Finally, the appellant’s adjudged sentence of a bad-conduct discharge,
reduction to E-1, and forfeitures of $500.00 pay per month for nine months
was well below the jurisdictional maximum that the trial counsel advocated
in his sentencing argument.
   Considering all of these factors, we conclude that even assuming the
military judge erred in excluding extenuation evidence, the appellant was not
prejudiced and the errors did not substantially influence the adjudged
sentence.
B. Promulgating order
    As the appellant notes, the promulgating order indicates he was convicted
of two separate charges for assaulting Cpl M.D.G.14 The government concedes
the “omission amounts to a scrivener’s error.”15 While we agree corrective
action is warranted, we are not convinced the error lies solely within the
court-martial promulgating order.
    The military judge clearly intended to convict the appellant of a single
aggravated assault specification. However, the appellant pleaded guilty,
pursuant to a PTA, to both the lesser included offense under Charge I and the
stated offense under Charge II. Contrary to the military judge’s ruling on the
motion to dismiss, the decision to even charge both Article 124, UCMJ,
maiming and its lesser included Article 128, UCMJ, aggravated assault


    13 Record at 195. The appellant testified to “going to the jet ski area” to rent jet
skis for the day and then joining his companions for breakfast, taking pictures and
posting them on Facebook, and “FaceTiming” with his wife on the phone.
    14   Convening Authority’s Action of 22 Apr 2016.
    15   Answer on Behalf of Appellee of 17 Nov 2016 at 14.

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offense for “contingencies of proof” was improper, as there were none. See
United States v. Hudson, 59 M.J. 357, 358 (C.A.A.F. 2004) (“Charges
reflecting both an offense and a lesser-included offense are impermissibly
multiplicious.”); R.C.M. 307(c)(4), Discussion (“In no case should both an
offense and a lesser included offense thereof be separately charged”). The
appellant could not commit the offense of maiming Cpl M.D.G. without also
committing an aggravated assault on him. The error was compounded when
neither the government nor the military judge ever dismissed either
specification. Rather, only the language constituting the greater maiming
offense was withdrawn before findings. As a result, when the military judge
announced findings of guilty to the “charge now pending before this court”,16
both Charge I and Charge II remained. The military judge’s statement
following the findings announcement arguably exacerbates the confusion.
“[S]pecifically, that would be guilty of a violation of Article 128, and the
single specification thereunder . . . ” appears to clarify a finding of guilty to
only Charge II, since it actually alleged a violation of Article 128, UCMJ.17
    However, based upon the providence inquiry, we are convinced the
military judge entered a finding of guilty to only the lesser included offense of
aggravated assault under Charge I. The military judge has a duty to
ascertain, on the record, the factual basis that establishes that “the acts or
the omissions of the accused constitute the offense or offenses to which he is
pleading guilty.” United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969)
(citations omitted); see also Art. 45, UCMJ. The appellant must admit every
element of the offense to which he pleads guilty. United States v. Aleman, 62
M.J. 281, 283 (C.A.A.F. 2006); see also R.C.M. 910(e). Indeed, if a military
judge fails to establish an adequate basis in law or fact to support the
appellant’s plea during the Care inquiry, the plea will be improvident. United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). Notably, we do not find
that the military judge here accepted an improvident plea. In fact, since the
specifications under the two charges are identical, the military judge’s
inquiry here was sufficient to find the appellant provident to both charges.
But the Care inquiry conducted by the military judge is important because it
informs our decision regarding the “charge now pending before this court” to
which the military judge entered a finding of guilty.18 The military judge’s
inquiry relied on a stipulation of fact related to Charge I.19 In discussing the
stipulation of fact, the military judge even noted a typographical error:


   16   Record at 95 (emphasis added).
   17   Id. at 94-95.
   18   Id. at 94 (emphasis added).
   19   PE 11 at ¶ 4.

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“Charge I, Specification 1, aggravated assault. And, again, that’s really
Charge I and the Sole Specification thereunder and it’s more precisely the
lesser included offense of aggravated assault.”20 Neither the stipulation of
fact nor the military judge’s colloquy with the appellant ever mentions
Charge II.
    Therefore, we conclude the military judge neither dismissed, nor entered
findings for, the multiplicious Charge II and its specification. Consequently,
we will dismiss them.
C. Post-trial matters
    Although not raised as an AOE, we note the trial defense counsel’s post-
trial clemency submission requested that the CA “disapprove the bad conduct
discharge adjudged at the court-martial.”21 Such action would violate the
CA’s clemency limitations under Article 60, UCMJ, and R.C.M. 1107 in this
case.22
    The appellant has not asserted his trial defense counsel was ineffective
for requesting unauthorized clemency relief. It is the appellant’s burden to
demonstrate (1) his counsel’s performance was deficient to the point of “not
functioning as the ‘counsel’ guaranteed by the Sixth Amendment” and (2) the
deficient performance prejudiced the defense. United States v. Tippit, 65 M.J.
69, 76 (C.A.A.F. 2007) (citations and internal quotation marks omitted). An
appellant receives “the benefit of the doubt” regarding whether “there is
material prejudice to [his] substantial rights” based on “[e]rrors in post-trial
representation,” as long as “there is an error and the appellant makes some
colorable showing of possible prejudice.” United States v. Lee, 52 M.J. 51, 53
(C.A.A.F. 1999) (citations and internal quotation marks omitted).
   As the appellant was awarded no confinement, the only clemency
available to him was action on the reprimand, reduction in grade, or the
adjudged forfeitures. In the context of this case, we find no basis to conclude
not requesting these was legal error. See United States v. Conrad, No.
201600142, 2016 CCA LEXIS 535, at *6 n.8, unpublished op. (N-M. Ct. Crim.
App. 8 Sep 2016) (per curiam) (finding no legal error where trial defense
counsel failed to request an authorized form of clemency, but Conrad “d[id]
not contend his trial defense attorney was ineffective for not requesting such


   20   Record at 83.
   21   Trial Defense Counsel ltr 5811 Ser DEF/jls of 18 Mar 2016 at ¶ 2.
   22  The National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-
66, 127 Stat. 672 (2013), amended Article 60(c)(4), UCMJ, reducing the CA’s ability
to effect sentences in cases involving most offenses committed on or after 24 June
2014.

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                      United States v. King, No. 201600174


relief”). Nor do we find a colorable showing that the submitted request for
unauthorized clemency possibly prejudiced the appellant.23
                                III. CONCLUSION
    Charge II and its sole specification are dismissed. The finding of guilty to
the lesser included offense of Charge I and its sole specification (aggravated
assault with a force likely to produce death or grievous bodily harm in
violation of Article 128, UCMJ) and the sentence, as approved by the CA, are
affirmed.
   Senior Judge CAMPBELL and Judge RUGH concur.

                                              For the Court



                                              R.H. TROIDL
                                              Clerk of Court




    23 While none was submitted here, even briefed arguments on the submission of

unauthorized clemency requests alone may not establish a colorable showing of
possible prejudice. See, e.g., United States v. Ouillette, No. 201600075, 2016 CCA
LEXIS 481, at *8, unpublished op. (N-M. Ct. Crim. App. 16 Aug 2016) (finding that
trial defense counsel had made a tactical decision to request unauthorized clemency);
and United States v. Mitcham, No. 201600173, 2016 CCA LEXIS 675, at *7,
unpublished op. (N-M. Ct. Crim. App. 29 Nov 2016) (per curiam) (concluding there
was no colorable showing of possible prejudice where the appellant provided no
evidence to suggest that he desired any authorized relief, or, alternatively, that he
was improperly advised regarding any potential clemency).

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