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

                             No. 201700097
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                     CARLOS M. VILLALOBOS
         Senior Chief Operations Specialist (E-8), U.S. Navy
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Captain Brian Lansing, JAGC, USN.
   Convening Authority: Commander, Navy Region, Mid-Atlantic,
                            Norfolk, VA.
    Staff Judge Advocate’s Recommendation: Commander Irve C.
                       Lemoyne, JAGC, USN.
         For Appellant: Captain Daniel R. Douglass, USMC.
    For Appellee: Major Kelli A. O’Neil, USMC; Captain Sean M.
                           Monks, USMC.
                      _________________________

                        Decided 26 January 2018
                        _________________________

Before H UTCHISON , F ULTON and S AYEGH , 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.
                       _________________________

   PER CURIAM:
   A military judge sitting as a general court-martial convicted the
appellant, consistent with his pleas, of three specifications of violating a
lawful general order prohibiting sexual harassment and four specifications of
assault consummated by a battery in violation of Articles 92 and 128,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 928. The
                      United States v. Villalobos, No. 201700097


military judge sentenced the appellant to 36 months’ confinement, reduction
to E-1, and a bad-conduct discharge. The convening authority (CA) approved
the sentence as adjudged; however, pursuant to the pretrial agreement
(PTA), he disapproved confinement in excess of 15 months, suspended
adjudged and automatic reduction below the pay grade of E-4, deferred and
then waived automatic forfeitures, and suspended the bad-conduct discharge.
    The appellant assigns one error: that he received ineffective assistance of
counsel when his civilian defense counsel (CDC) misstated the effect of
Article 60, UCMJ, to the CA in a post-trial clemency letter. Specifically, the
CDC incorrectly indicated that the CA did not have the authority to grant the
appellant’s request to suspend all remaining confinement. Additionally, in a
footnote, the appellant raises an alternate assignment of error that relies on
United States v. Bannister, No. 201600056, 2016 CCA LEXIS 686,
unpublished op. (N-M. Ct. Crim App. 30 Nov 2016), arguing the staff judge
advocate (SJA) committed error by not commenting on the legal deficiency in
the CDC’s clemency letter. Finally, although the appellant did not raise it as
an assignment of error, this court specified the issue of whether the CA had
complied with the terms of the PTA requiring him to suspend the adjudged
punitive discharge. After carefully considering the pleadings and the record
of trial, we find no error materially prejudicial to the substantial rights of the
appellant and affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                   I. BACKGROUND
   The appellant pleaded guilty to sexually harassing three junior female
Sailors and assaulting two of them. The sexual harassment and assault of
one of the Sailors—Petty Officer KH—began prior to 24 June 2014.
    The SJA’s recommendation (SJAR) to the CA incorrectly advised the CA,
in relevant part, that Article 60, UCMJ, “[d]oes limit your authority to
disapprove, commute, or suspend that part of the sentence which includes a
punitive discharge or confinement for more than six months.”1 In his
clemency submission, submitted via his CDC, the appellant requested
restoration to E-6 and suspension of all of his remaining confinement so that
he could receive pay to support his family.2 The CDC’s cover letter forwarding
the appellant’s clemency request revealed a misunderstanding of the
amendments to Article 60, UCMJ. The CDC wrote, “[a]s I have explained to
OS3 Villalobos, Article 60 has eliminated that clemency ability from your


   1   SJAR of 10 Feb 2017 at 3.
   2  The appellant was beyond his end of active service date when he entered
confinement. As a result, he was not entitled to pay or allowances pursuant to
paragraph 010402, Volume 7A, DoD 7000.14-R, Financial Management Regulation.


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                       United States v. Villalobos, No. 201700097


hands – obviously a provision of law I strenuously oppose[.]”3 After receiving
the CDC’s letter and the enclosed clemency request from the appellant, the
SJA submitted an addendum to his original SJAR that advised the CA that
“Article 60 of the Uniform Code of Military Justice does not limit your
authority to grant the Defense Counsel’s requested clemency.”4 The SJA’s
addendum did not comment on the CDC’s misstatement of law concerning
Article 60, UCMJ.
   The CA did not approve any clemency when he acted on the appellant’s
adjudged sentence. However, the CA indicated in his action that he “acted in
accordance with the Pre-Trial Agreement” and that “[he] understand[s] that
Article 60 of the Uniform Code of Military Justice does not limit [his]
authority to grant the Defense Counsel’s requested additional
clemency . . . .”5
                                   II. DISCUSSION
A. Post-trial ineffective assistance of counsel
    The National Defense Authorization Act for Fiscal Year 2014 (FY14
NDAA), Pub. L. No. 113-66, 127 Stat. 672 (2013), amended Article 60, UCMJ,
limiting the CA’s ability to reduce sentences in cases involving most offenses
committed on or after 24 June 2014. But this reduction in a CA’s authority to
grant post-trial clemency does not apply if at least one offense for which an
accused is found guilty occurred before, or in a date-range that includes a
date before, 24 June 2014.6 Because the appellant in this case was found
guilty of some offenses that occurred before 24 June 2014, the amendments to
Article 60, UCMJ, did not affect the CA’s authority in this case to reduce the
appellant’s sentence.
   The appellant argues that he received ineffective assistance of counsel
when his CDC incorrectly conceded that the CA lacked authority to grant the
appellant’s requested clemency.
    “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
effective assistance of counsel.” United States v. Scott, 24 M.J. 186, 187-88
(C.M.A. 1987) (citations omitted). This guarantee includes the right to
effective counsel during the post-trial process. United States v. Cornett, 47
M.J. 128, 133 (C.A.A.F. 1997).


   3   CDC ltr to the CA dtd 6 Mar 2017 at 2.
   4   Final Addendum to SJAR dtd 16 Mar 2017 at 2.
   5   General Court-Martial Order No. 13-17 dtd 16 Mar 2017 at 6.
   6   80 Fed. Reg. 35810 (Jun. 22, 2015).


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                    United States v. Villalobos, No. 201700097


    We review claims of ineffective assistance of counsel de novo. United
States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015). The appellant must clear a
high bar to prevail by showing: (1) that his counsel’s performance was
deficient, and (2) that, but for his counsel’s deficient performance, there is a
reasonable probability that the result of the proceeding would have been
different. Id. (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
In evaluating claims of post-trial ineffective assistance of counsel, we give the
appellant the benefit of the doubt and find that “there is material prejudice to
the substantial rights of an appellant if there is an error and the appellant
‘makes some colorable showing of possible prejudice.’” United States v.
Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (quoting United States v.
Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)).
    In this case, we need not decide whether the CDC’s performance was
deficient, because ‘“[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be followed.”’
United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (quoting
Strickland, 466 U.S. at 697) (alteration in original). Here, the appellant fails
to make a “colorable showing of possible prejudice.” Wheelus, 49 M.J. at 289.
    The CA clearly indicated in his action a correct understanding of the
law—that he was free to exercise his full discretion to grant or deny the
appellant’s clemency request. The CA chose to deny the appellant’s requested
clemency. As a result, the appellant is unable to provide “an adequate
description of what a properly advised convening authority might have done
to structure an alternative form of clemency.” United States v. Capers, 62
M.J. 268, 270 (C.A.A.F. 2005).
    We have also considered the appellant’s alternative assignment of error
and found it to be without merit. In Bannister, we set aside the CA’s action
after the SJA failed to correct the detailed defense counsel’s affirmative
misstatement of the CA’s clemency authority. Bannister, 2016 CCA LEXIS
686, at *9. As a result, the CA was not properly advised of her authority to
act on the findings and sentence. Id. Unlike Bannister, the SJA here correctly
advised the CA, in his SJAR addendum, regarding the CA’s authority under
Article 60, UCMJ, and the CA’s action, as noted above, clearly reflects an
accurate understanding of that authority.
   Based on the facts and pleadings in this case, we are firmly convinced the
CDC’s erroneous understanding of the law in the appellant’s clemency
submission, did not prejudice the appellant.
B. CA’s action
   Although not raised by the appellant, we find that the CA’s action
improperly attempted to “return [the appellant] to the pay grade of E-1,”


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                      United States v. Villalobos, No. 201700097


after suspending both the adjudged and automatic reduction below E-4 and
noting that the suspended reductions “will be remitted without further
action[.]”7 RULE FOR COURTS-MARTIAL (R.C.M.) 1108, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2016 ed.) states, “[r]emission cancels the
unexecuted part of a sentence to which it applies.” Executing a cancelled part
of a sentence is ultra vires and thus a nullity. See United States v.
Tarniewicz, 70 M.J. 543, 544 (N-M. Ct. Crim. App. 2011) (holding that to the
extent a CA’s action directed execution of a punitive discharge in violation of
Article 71, UCMJ, it was ultra vires and thus a nullity).
    The CA suspended the adjudged and automatic reduction below E-4
pursuant to the PTA. Absent a vacation proceeding in accordance with
R.C.M. 1109, the only action the CA could lawfully take was to allow the
remission of the suspension of both the adjudged and automatic reduction
below E-4 to occur at the conclusion of the period of suspension. “Rather than
unnecessarily ordering a new CA’s action in this case, we take the existing
CA’s action and disregard any portion that is not permitted by law.” United
States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App. 2016).
   Finally, with regard to whether the CA complied with the terms of the
PTA requiring him to suspend the adjudged punitive discharge, upon review
of the party’s briefs, we find the CA’s action does adequately reflect
suspension of the adjudged punitive discharge, and thus, the appellant did
receive the benefit he was entitled to under the PTA.
                                 III. CONCLUSION
   The findings and sentence as approved by the CA are affirmed. The
supplemental court-martial order will reflect that the appellant’s suspended
adjudged and automatic reduction below the paygrade of E-4, unless sooner
vacated, will be remitted following the conclusion of the suspension period.


                                           For the Court




                                           R.H. TROIDL
                                           Clerk of Court




   7   General Court-Martial Order No. 13-17 at 4.


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