          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                                  Airman DANIEL M. BLAIR
                                    United States Air Force

                                        ACM S32028 (recon)

                                              22 July 2014

         Sentence adjudged 16 February 2012 by SPCM convened at Hurlburt Field,
         Florida. Military Judge: Joshua E. Kastenberg (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 9 months,
         forfeiture of $500.00 pay per month for 9 months, and reduction to E-1.

         Appellate Counsel for the Appellant:        Major Scott W. Medlyn;
         Captain Christopher D. James; and Captain Michael A. Schrama.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Daniel J. Breen;
         Major Rhea A. Lagano; and Gerald R. Bruce, Esquire.

                                                  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 military judge sitting as a special court-martial convicted the appellant,
consistent with his pleas, of one specification of wrongful use of cocaine, in violation of
Article 112a, UCMJ, 10 U.S.C. § 912a. 1 The military judge sentenced the appellant to a
bad-conduct discharge, confinement for 9 months, forfeiture of $500.00 pay per month
for 9 months, and reduction to E-1. The convening authority approved the sentence as
adjudged.

       This was the appellant’s second court-martial. On 27 October 2011, a panel of
officer members sitting as a special court-martial convicted the appellant of one
specification of wrongful use of cocaine, in violation of Article 112a, UCMJ, and
sentenced him to hard labor without confinement for 3 months, restriction to the limits of
Hurlburt Field for 2 months, forfeiture of $822.00 pay per month for 6 months, reduction
to E-2, and a reprimand.

                                           Procedural History

         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 initially before us, the appellant raised two issues
for our consideration: ineffective assistance of counsel and sentence severity. 2

        On 13 August 2013, we issued a decision denying the appellant relief.
United States v. Blair, ACM S32028 (A.F. Ct. Crim. App. 13 August 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. On
15 April 2014, our superior court issued its decision in United States v. Janssen, 73 M.J.
221, 225 (C.A.A.F. 2013), holding that the Secretary of Defense did not have the
legislative authority to appoint civilian employees as 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 appellant’s motion for reconsideration on
29 April 2014 and permitted the appellant to file a supplemental assignment of errors. In
a supplemental assignment of error, the appellant asserts he is entitled to relief due to
unreasonable appellate delay. With a properly constituted panel, we have reviewed the

1
  In early November 2011, the appellant bought some cocaine from a civilian named “G.” He used the cocaine to
help calm his anger over his wife drinking alcohol. About eight hours after using the cocaine, the appellant’s
squadron had a unit-wide urinalysis. The appellant tested positive for cocaine.
2
  Both issues were raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                      2                                  ACM S32028 (recon)
appellant’s case, to include the appellant’s previous and current filings and 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.

                            Ineffective Assistance of Counsel

       The appellant argues that his trial defense counsel was ineffective when he failed
to advise him about his options for waiver and deferment of forfeitures. We disagree and
find that trial defense counsel was not ineffective during his post-trial representation of
the appellant. An additional fact-finding hearing is not necessary for us to resolve this
issue. See United States v. Ginn, 47 M.J. 236, 244 (C.A.A.F. 1997).

        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).

        The appellant has not made a colorable showing of possible prejudice. Instead, we
find the appellant’s trial defense counsel properly advised the appellant about his options
for deferment or waiver of forfeitures. The record shows that on 15 February 2012, the
appellant signed a form entitled “Post-Trial and Appellate Rights Advisement.”
Paragraph four of that document outlines the appellant’s rights for deferment or waiver of
forfeiture of pay. On page five, the appellant’s defense counsel signed the document


                                             3                            ACM S32028 (recon)
attesting that he fully counseled the appellant, both orally and in writing, about his
post-trial and appellate rights. The appellant also signed the form attesting that he read
and understood those rights. The record also shows the appellant answered in the
affirmative when the military judge asked him if his counsel had explained those rights to
him.

        Moreover, trial defense counsel confirms in his affidavit that he reviewed the
post-trial rights with the appellant. He states that he explained to the appellant the
possibility of deferment or waiver of forfeitures for his wife and encouraged the appellant
to set up a bank account for this purpose. The appellant did not follow his advice and
indicated to his counsel that he did not wish to request deferment or waiver of forfeitures.
The same defense counsel also represented the appellant in his first
court-martial in October 2011 and states that he advised the appellant about deferment or
waiver of forfeitures as part of that proceeding. The appellant opted not to seek any
deferments or waivers. Based on having advised the appellant twice about these rights,
trial defense counsel contends that the appellant’s decision to forego his rights was
voluntary and fully informed. We agree.

                                     Sentence Severity

       The appellant next argues that his sentence consisting of a bad-conduct discharge
is inappropriately severe. To support his claim, the appellant cites his lengthy service,
multiple deployments, and ongoing medical treatment for injuries sustained on active
duty. We find the appellant’s argument unpersuasive.

       This Court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offense[s], the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703,
705 (A.F. Ct. Crim. App. 2009) (citations omitted). Although we are accorded great
discretion in determining whether a particular sentence is appropriate, we are not
authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).

       We next consider whether the appellant’s sentence was appropriate “judged by
‘individualized consideration’ of [the appellant] ‘on the basis of the nature and
seriousness of the offense and the character of the offender.’” United States v. Snelling,
14 M.J. 267, 268 (quoting United States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A.
1959)). We have given individualized consideration to this particular appellant, the
nature and seriousness of the offenses, the appellant’s record of service, and all other


                                             4                            ACM S32028 (recon)
matters contained in the record of trial. This was the appellant’s second court-martial for
wrongful use of cocaine. His first court-marital ended four months earlier and resulted in
a sentence without a punitive discharge. About two weeks after his first court-martial
adjourned, the appellant knowingly and voluntarily used cocaine again. Under these
circumstances, we find that the approved sentence was clearly within the discretion of the
convening authority, was appropriate in this case, and was not inappropriately severe.

                            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 continues through 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, 22 (C.A.A.F. 2010).

       This case was originally docketed for appeal on 13 March 2012, and this Court
rendered a decision on 13 August 2013, within 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.
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



                                             5                            ACM S32028 (recon)
whether the Secretary of Defense has the authority under the Appointments Clause 3 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
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


                      LAQUITTA J. SMITH
                      Appellate Paralegal Specialist




3
    U.S. CONST. art. II, § 2, cl. 2.


                                                       6                 ACM S32028 (recon)
