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

                             No. 201600265
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
                        ERIC A. MARQUARDT
               Master-at-Arms Seaman (E-3), U.S. Navy
                              Appellant
                       _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

       Military Judge: Captain Ann K. Minami, JAGC, USN.
Convening Authority: Commanding Officer, Marine Corps Security
    Force Battalion, Naval Base Kitsap Bangor, Silverdale, W A.
         Staff Judge Advocate: Major C.G. Blosser, USMC.
     For Appellant: Captain Bree A. Ermentrout, JAGC, USN.
For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Commander
                  Jeremy R. Brooks, JAGC, USN.
                      _________________________

                        Decided 14 February 2017
                         _________________________

 Before M ARKS , G LASER -A LLEN , and G ROHARING , 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.
                     _________________________

   GROHARING, Judge:
   A military judge sitting as a special court-martial convicted the appellant,
consistent with his pleas, of three specifications of assault consummated by a
battery, one specification of communicating a threat, one specification of
unlawful entry, and one specification of underage drinking in violation of
Articles 128 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
928 and 934. The military judge sentenced the appellant to six months’
                    United States v. Marquardt, No. 201600265


confinement, reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority (CA) approved the sentence as adjudged.1
    In his sole assignment of error, the appellant contends that he received
ineffective assistance of counsel when his detailed defense counsel requested
relief outside the authority of the CA to grant. We agree and remand this
case for new post-trial processing in accordance with Article 60, UCMJ.
                                     I. BACKGROUND
   On 24 October 2015, the appellant was assigned to Marine Security
Forces Battalion, Bangor, Washington. That evening, the appellant, then
aged 19, went to a party with other Sailors and drank approximately six cups
of vodka and juice and several beers within a two-hour period. While
drinking, he “blacked out” and could not remember anything that happened
that night.2
    In the early morning hours of 25 October, the appellant left the party and
proceeded to the home of BB, whom he did not know. Thinking it was his
home, he pounded on the door until BB opened it. He then pushed his way
into the home, and as BB shouted at him to leave, pinned her to the wall
while screaming that he was going to kill her.
   After the appellant let her go, BB fled to her neighbor’s house and called
the police. The police arrested the appellant and took him to the Naval Base
Kitsap-Bremerton police station. When one of the security personnel, Seaman
FN, removed the appellant’s restraints to allow him to use the head, the
appellant grabbed Seaman FN by the neck to try to force him to the ground.
   The appellant pleaded guilty pursuant to a pretrial agreement (PTA),
which provided in part that a punitive discharge “[m]ay be approved as
adjudged.”3 The military judge awarded a bad-conduct discharge.
   Trial defense counsel submitted a post-trial clemency request pursuant to
RULES FOR COURTS-MARTIAL (R.C.M.) 1105 and 1106, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.), asking that the CA disapprove or
suspend the appellant’s bad-conduct discharge and continued confinement. In
the clemency request, trial defense counsel noted “that the clemency rules
have changed and allow the convening authority to modify adjudged
sentences with certain limits.”4

   1 The pretrial agreement (PTA) in the case required the convening authority to
suspend any confinement in excess of 90 days.
   2   Prosecution Exhibit 1 at 2.
   3 Appellate   Exhibit III at 1.
   4   Detailed Defense Counsel memo dtd 6 Jun 2016 at 3.

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                         United States v. Marquardt, No. 201600265


   On 22 November 2016, this court ordered the government to obtain trial
defense counsel’s response to the appellant’s allegations of ineffective
assistance of counsel, specifically the alleged failure to request relief within
the CA’s authority.
                                      II. DISCUSSION
A. Clemency powers of the CA
    The National Defense Authorization Act for Fiscal Year 2014 (FY14
NDAA)5 amended Art. 60(c)(4), UCMJ, reducing the CA’s ability to affect
sentences in cases involving most offenses committed on or after 24 June
2014. CAs can no longer “disapprove, commute, or suspend in whole or in
part . . . a sentence of dismissal, dishonorable discharge, or bad conduct
discharge” unless certain exceptions exist.6
    Article 60(c)(4), UCMJ, now provides:
          (A) Except as provided in subparagraph (B) or (C), the
          convening authority . . . may not disapprove, commute, or
          suspend in whole or in part an adjudged sentence of
          confinement for more than six months or a sentence of
          dismissal, dishonorable discharge, or bad conduct discharge.
          (B) Upon the recommendation of trial counsel in recognition of
          the substantial assistance by the accused [or]. . . .
          (C) If a pre-trial agreement has been entered into by the
          convening authority and the accused . . . . the convening
          authority . . . shall have the authority to approve, disapprove,
          commute, or suspend a sentence in whole or in part pursuant
          to the terms of the pre-trial agreement . . . .7
The CA may still disapprove, commute, or suspend confinement, in whole or
in part, when six months or less of confinement are adjudged and
“disapprove, commute, or suspend, in whole or in part, any portion of an
adjudged sentence not explicitly prohibited,” which includes any “[r]eduction
in pay grade, forfeitures of pay and allowances, fines, reprimands,
restrictions, and hard labor without confinement . . . .” R.C.M. 1107(d)(1)(A),
(C) (2015).8


    5   Pub. L. No. 113-66, 127 Stat. 672 (2013).
    6   See id. § 1702 at 956. Neither of the exceptional circumstances is present in this
case.
    7   Id. at 956-57.
    8“The convening authority may not disapprove, commute, or suspend, in whole or
in part, any portion of an adjudged sentence of confinement for more than six

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                  United States v. Marquardt, No. 201600265


    As a result of these changes, the CA could not grant trial defense
counsel’s requested relief of disapproval of the adjudged bad-conduct
discharge. United States v. Kruse, ___ M.J ___, No. 201600101, 2016 CCA
LEXIS 731 at *9 (N-M. Ct. Crim. App. 2016) (holding such an action by the
CA to be ultra vires).
    The CA’s discretion to modify the adjudged sentence was limited to action
on the appellant’s reduction in pay grade, reduction in length of confinement
(because the adjudged sentence of confinement was for six months or less),
and forfeiture of pay and allowances.9 As a result, we must evaluate whether
the appellant received effective assistance of counsel in the post-trial process,
when his counsel advised the appellant that confinement relief was not
possible by operation of law and requested relief outside the CA’s authority.
B. Ineffective assistance of counsel
    The Sixth Amendment right to effective assistance of counsel after the
appellant’s courts-martial is a fundamental right. United States v. Knight, 53
M.J. 340, 342 (C.A.A.F. 2000) (citing United States v. Palenius, 2 M.J. 86
(C.M.A. 1977)). See United States v. Cobe, 41 M.J. 654, 655 (N-M. Ct. Crim.
App. 1994) (“One of counsel’s fundamental duties after trial is to consider and
submit, if appropriate, a petition for clemency to the convening authority on
his client’s behalf. . . . This duty is important because an accused’s best hope
for sentence relief after trial [is] the convening authority.” (citations
omitted)).
    Ineffective assistance of counsel involves a mixed question of law and fact.
United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001). In reviewing
claims of ineffective assistance of counsel, we “look[ ] at the questions of
deficient performance and prejudice de novo.” United States v. Datavs, 71
M.J. 420, 424 (C.A.A.F. 2012) (quoting United States v. Gutierrez, 66 M.J.
329, 330-31 (C.A.A.F. 2008)). However, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F.
2007) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)).
   We apply the two-prong test set forth by the Supreme Court in Strickland
to determine whether counsel rendered ineffective representation. “The


months.” R.C.M. 1107(d)(1)(A). R.C.M. 1107 was amended 22 June 2015 to reflect the
amended Article 60, UCMJ. Exec. Order. No. 13,696, 80 Fed. Reg. 35,812-13 (22 Jun
2015).
   9  The CA was also prohibited from disapproving the findings. See Pub. L. No. 113-
66, § 1702, 127 Stat. 956.



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                     United States v. Marquardt, No. 201600265


burden on each prong rests with the appellant challenging his counsel’s
performance.” United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005). The
first prong requires the appellant to show that counsel’s performance fell
below an objective standard of reasonableness, indicating that counsel was
not functioning as counsel within the meaning of the Sixth Amendment.
United States v. Terlep, 57 M.J. 344, 349 (C.A.A.F. 2002). Our review of
counsel’s performance is highly deferential and is buttressed by a strong
presumption that counsel provided adequate representation. United States v.
Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).
    In the present case, counsel’s performance fell below the objective
standard of reasonableness required by Strickland. Among Congress’s
amendments to Article 60, UCMJ, was a limit on a CA’s authority to
disapprove, commute, or suspend in whole or in part an adjudged sentence of
confinement for more than six months or a sentence of dismissal,
dishonorable discharge, or bad conduct discharge. Although the original
statutory amendments may have left some confusion regarding the ability of
a CA to provide clemency with respect to confinement, the Manual for
Courts-Martial was subsequently amended to reflect the statutory changes
and clearly reflects the limitations placed on the CA. Since 22 June 2015,
R.C.M. 1107 has provided that “[t]he convening authority may not
disapprove, commute, or suspend, in whole or in part, any portion of an
adjudged sentence of confinement of more than six months.” R.C.M.
1107(d)(1) (emphasis added)).10
   In her affidavit, trial defense counsel states that she advised the
appellant that, notwithstanding R.C.M. 1107, “relief from the six months of
confinement (beyond the 90 day cap already provided for in the PTA) was
impossible by operation of law.”11 This advice was a misstatement of the law.
Consistent with the 2014 NDAA and implementing changes to the MCM, a
CA can disapprove, commute, or suspend, in whole or in part, any portions of
an adjudged sentence of confinement, as long as the sentence adjudged is six
months or less. Here, the military judge sentenced the appellant to six
months’ confinement, thus trial defense counsel could have requested
disapproval, commutation, or suspension of confinement above and beyond
the terms of his PTA.
    While this court’s review of trial defense counsel’s performance of duties
is highly deferential, the advice provided by counsel in this case with respect
to potential sentence relief available from the CA was based on an erroneous
understanding of the law. However unlikely such relief might have been, the

   10   Exec. Order. No. 13,696, 80 Fed. Reg. 35,812-13 (22 Jun 2015).
   11   Trial defense counsel’s affidavit at 2.

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                  United States v. Marquardt, No. 201600265


appellant should have been properly advised regarding the full range of
clemency options available.
    The second prong of the test to determine whether counsel’s performance
was ineffective requires a showing of prejudice resulting from counsel’s
deficient performance. Strickland, 466 U.S. at 687. With regard to post-trial
claims of ineffective assistance of counsel, courts must give an 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 (1997)).
   In order to make a colorable showing of possible prejudice, an appellant
must 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. 28, 270 (C.A.A.F. 2005).
    While bare allegations of inadequate representation are not entertained
by courts without submission of an affidavit showing how counsel acted
contrary to the appellant’s wishes, see United States v. Starling, 58 M.J. 620,
622-23 (N-M. Ct. Crim. App. 2003), here the appellant has presented more
than bare allegations. Although the appellant did not ask trial defense
counsel to request reduction in confinement, and the appellant appeared to
prioritize disapproval of his bad-conduct discharge above other forms of relief,
these actions are understandable in light of trial defense counsel’s erroneous
advice that reduction in confinement was impossible. The appellant’s desire
expressed in his clemency submission to return to his family suggests that
had he been properly advised, the appellant may have directed trial defense
counsel to request relief from confinement which was within the CA’s
authority to grant.
    Likewise, a properly advised CA could have awarded a reduction in
confinement, remitted or suspended the adjudged or automatic reduction in
rank, or deferred the automatic forfeitures of the accused’s pay and
allowances. Any of these forms of relief could have helped the appellant
support his family, consistent with his desires expressed in the clemency
submission.12 Though what the CA might have done with such a request is
speculative, the showing made by the appellant is sufficient to demonstrate a



   12 Detailed   Defense Counsel memo dtd 6 Jun 2016 at 3. (noting that the appellant
“ feels guilty that he is not able to provide emotional and financial support to his
already hurting family,” and that the appellant’s mother had been diagnosed with
breast cancer requiring major reconstructive surgery).

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                 United States v. Marquardt, No. 201600265


colorable showing of possible prejudice based on counsel’s deficient
representation.
                              III. CONCLUSION
    The CA’s Action dated 27 July 2016 is set aside and the record is returned
to the Judge Advocate General for remand to an appropriate CA for new post-
trial processing with the appellant represented by conflict-free counsel. After
completion of the new post-trial processing the record will be returned to the
court for completion of appellate review. Boudreaux v. United States Navy-
Marine Corps Court of Military Review, 28 M.J. 181 (C.M.A. 1989).
   Senior Judge MARKS and Judge GLASER-ALLEN concur.
                                  For the Court



                                  R.H. TROIDL
                                  Clerk of Court




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