              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
              K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       GAMALIEL F. TORRES
                YEOMAN SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201500117
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 10 December 2014.
Military Judge: CDR Michael J. Luken, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: CDR Suzanne M. Lachelier, JAGC, USN.
For Appellee: LT James M. Belforti, JAGC, USN.

                            29 October 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

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, found
the appellant guilty, pursuant to his pleas, of one
specification of possession of child pornography and one
specification of receipt of child pornography, in violation of
Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.
The adjudged sentence included 30 months’ confinement, reduction
to pay grade E-1, and a bad-conduct discharge. The convening
authority (CA) approved the sentence as adjudged but, pursuant
to a pretrial agreement (PTA), suspended confinement in excess
of two years.

      On appeal, the appellant alleges that trial defense counsel
(TDC) was ineffective when he: (1) failed to request to see the
same data the military judge saw regarding the terms of the
pretrial agreement; and, (2) failed to challenge the military
judge following the latter’s disclosure he had learned the term
of confinement contained in the PTA. 1 After careful examination
of the record of trial and the pleadings of the parties, we
disagree. The findings and the sentence are correct in law and
fact, and we find no error materially prejudicial to the
substantial rights of the appellant. Arts. 59(a) and 66(c),
UCMJ.

                                 Background

     On 9 October 2014, the appellant signed a PTA, agreeing to
plead guilty to four specifications of possession and one
specification of receipt of child pornography before a military
judge. In return, the CA agreed to suspend any awarded
confinement in excess of two years. While preparing for trial,
the judge logged into Case Management System (CMS), the Navy’s
online court-martial management database. Looking for
confirmation of the appellant’s arraignment, the judge accessed
a tab where court-martial milestone dates are recorded. While
scanning that screen, the judge inadvertently stumbled upon a
data entry he recognized as a PTA term capping confinement. The
judge exited CMS and notified trial and defense counsel of the
accidental disclosure via email.

      The military judge, trial counsel, and TDC held a
telephonic RULE FOR COURTS-MARTIAL 802, MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), conference on 1 December 2014 to discuss the
disclosure as well as other matters related to the case. 2 During
that conference, TDC advised the judge he had notified the
appellant of the disclosure and did not plan to challenge the
judge’s continued participation in the trial.

     Nine days later, at trial, the military judge invited voir
dire from both counsel. TDC began his voir dire by apologizing
that he had not seen the data entry at issue, because he did not

1
  The assignment of error is raised pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).
2
    See Appellate Exhibit VI.
                                      2
have access to CMS. The record contains no indication that TDC
requested access to CMS or a screen shot or printout of the
entry. The judge recalled the CMS entry being five or six words
announcing that parties had reached a PTA and the maximum
sentence. He confirmed that he had not seen any of Part II of
the PTA, but had seen the Stipulation of Fact and Part I of the
PTA. After continuing to question the judge on an unrelated
matter, TDC announced his intention not to challenge the judge’s
role in the court-martial. In fact, he requested that the judge
look at Part II of the PTA in its entirety “in the interest of
completeness.” 3 The judge declined to do so, insisting he had
dismissed the PTA term from his mind and would reach a sentence
based on the evidence alone.

     During trial, the military judge concluded that
Specifications 1, 2, 3, and 4 of the Charge constituted an
unreasonable multiplication of charges for both findings and the
sentence. Each specification alleged possession of child
pornography on the same date but on a different electronic
device. As a remedy, the military judge merged the four
specifications into one “mega spec,” a new Specification 1.
Specifically, he added the electronic devices in Specifications
2, 3, and 4 to Specification 1. He then conditionally dismissed
Specifications 2, 3, and 4, pending appellate review. Neither
the Government nor the appellant objected. 4

                       Standard of Review

     Claims of ineffective assistance of counsel present mixed
questions of law and fact. Findings of fact, when present, are
reviewed under a clearly erroneous standard, but a de novo
standard applies to the ultimate determination of counsel’s
effectiveness. See United States v. Paxton, 64 M.J. 484, 488
(C.A.A.F. 2007).

     We review claims of ineffective assistance of counsel using
the Supreme Court’s Strickland test, which “requires an
appellant to show that: (1) his counsel’s performance fell below
an objective standard of reasonableness; and, (2) the counsel’s
deficient performance gives rise to a ‘reasonable probability’
that the result of the proceeding would have been different
without counsel’s unprofessional errors.” See United States v.
Akbar, 74 M.J. 364, 2015 CAAF LEXIS 721 at *2-3 (C.A.A.F. 2015)
(citing Strickland v. Washington, 466 U.S. 688, 694 (1984)).
3
    Record at 16.
4
    Id. at 78-80.
                                3
     Long-standing Supreme Court precedent requires us to judge
counsel’s performance with a high degree of deference, even in
light of the de novo standard. See United States v. Datavs, 71
M.J. 420, 424 (C.A.A.F. 2012) (citing Harrington v. Richter, 562
U.S. 86, 105 (2011)). To overcome the presumption of a
competent defense, “an appellant must show specific defects in
counsel’s performance that were ‘unreasonable under prevailing
professional norms.’” United States v. Quick, 59 M.J. 383, 386
(C.A.A.F. 2004) (quoting United States v. Anderson, 55 M.J. 198,
201 (C.A.A.F. 2001)).

     However, it is not necessary to determine the
reasonableness of counsel’s actions, “‘if it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice[.]’” Datavs, 71 M.J. at 424-25 (quoting
Strickland, 466 U.S. at 697). The appellant has the burden of
demonstrating a reasonable probability that, absent defense
counsel’s error, there would have been a different result in the
case. Quick, 59 M.J. at 386-87 (citing Strickland, 466 U.S. at
694).

                     Post-Trial Fact-Finding

     A post-trial allegation of ineffective assistance of
counsel does not automatically compel a court to conduct fact
finding in the form of affidavits or a DuBay hearing. See
United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997) (citing
United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967)). The Court
of Appeals of the Armed Forces (CAAF) held that DuBay hearings
are unnecessary if “‘the motion and the files and records of the
case . . . conclusively show that [an appellant] is entitled to
no relief.’” Id. at 244 (quoting United States v. Giardino, 797
F.2d 30, 32 (1st Cir. 1986)). The CAAF has established several
factors to assist lower appellate courts in determining when
further fact-finding is unnecessary, among them: “if the facts
alleged in the affidavit allege an error that would not result
in relief even if any factual dispute were resolved in
appellant’s favor, the claim may be rejected on that basis.”
Id. at 248.

                           Discussion

     The appellant’s claim of ineffective assistance of counsel
fails to meet either prong of the Strickland test. R.C.M.
910(f)(3) limits a military judge’s inquiry into a PTA in that
“the military judge ordinarily shall not examine any sentence
limitation contained in the agreement until after the sentence

                                4
of court-martial has been announced.” However, a military
judge’s premature awareness of a sentence limitation does not
require disqualification. See United States v. Key, 55 M.J.
537, 541 (A.F.Ct.Crim.App. 2001), aff’d, 57 M.J. 246 (C.A.A.F.
2002). R.C.M. 902(e) allows counsel to waive a ground for
disqualification of a judge upon full disclosure on the record
of the basis for disqualification.

     In this case, the military judge disclosed his accidental
exposure to the confinement terms of the PTA and exhaustively
explained what he remembered seeing. The appellant’s TDC took
advantage of voir dire and thoroughly questioned the judge about
his knowledge of Part II of the PTA. According to the record,
TDC discussed the disclosure with the appellant before trial and
decided against challenging the military judge both on 1
December and 10 December 2014. 5 TDC’s actions were within
prevailing professional norms.

     Even if we did find fault with TDC’s representation, the
appellant’s claim fails to demonstrate prejudice. The appellant
alleges that his TDC’s errors deprived him of an impartial judge
but fails to demonstrate how further investigating the CMS
entry, asking the judge about the impact of the entry, and
challenging the military judge would have yielded a different
result. The appellant offers no reason to believe that had his
TDC challenged the military judge, the judge would have recused
himself. In fact, it is unclear whether the appellant believes
the prejudice lies in his conviction or his sentence until he
requests a new judge for a rehearing on sentence in the
conclusion to his brief. Even then, the appellant does not even
broach why a different judge would have awarded a different
sentence based on the same stipulation of fact, providence
colloquy, and presentencing evidence and testimony.

     The errors appellant alleges would not result in relief,
even if any factual dispute were resolved in his favor. 6 Thus,
we need not conduct further fact finding proceedings. See Ginn,
47 M.J. at 248. As the appellant has failed to demonstrate
deficient performance or resulting prejudce, we find no
ineffective assistance of counsel.




5
    See AE VI and Record at 16.
6
  The record supports the facts in appellant’s brief, leaving no facts in
dispute.
                                      5
                           Conclusion

     The findings of guilty to Specifications 1 and 5 of the
Charge, subsequent to the merger, and the sentence are affirmed.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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