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

                             No. 201600303
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

             QUENTERIAS D. GOLDEN-FRANKLIN
             Fire Controlman Third Class (E-4), U.S. Navy
                               Appellant
                        _________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

     Military Judge: Captain Charles N. Purnell, JAGC, USN .
  Convening Authority: Commander, Navy Region Mid-Atlantic,
                           Norfolk, VA.
 Staff Judge Advocate’s Recommendation: Lieutenant Commander
 Dayton A. Krigbaum, JAGC, USN; Addendum: CAPT A.R. House,
                           JAGC, USN.
     For Appellant: Captain Bree A. Ermentrout, JAGC, USN.
  For Appellee: Major Kelli O’Neil, USMC; Lieutenant James M.
                      Belforti, JAGC, USN.
                     _________________________

                           Decided 6 April 2017
                         _________________________

Before C AMPBELL , R UGH , and H UTCHISON , 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, pursuant to his plea, of sexual assault in violation of Article 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. The military
judge sentenced the appellant to 42 months’ confinement, reduction to pay
                   United States v. Golden-Franklin, No. 201600303


grade E-1, and a dishonorable discharge. The convening authority (CA)
approved the sentence as adjudged and, pursuant to a pretrial agreement,
suspended all confinement in excess of 18 months.
   Upon review, we specified whether the appellant received the effective
assistance of counsel in his post-trial representation when trial defense
counsel requested relief that the CA had no authority to grant.1 After
considering the pleadings and the record of trial, we find no error materially
prejudicial to the appellant’s substantial rights, and affirm the findings and
sentence.
                                   I. BACKGROUND
    On 2 July 2015, the appellant, assigned to USS MONTEREY (CG 61),
stationed in Norfolk, Virginia, met up with Fire Controlman Third Class
(FC3) M for an evening together with mutual friends. Afterwards, the
appellant and FC3 M shared a hotel room and fell asleep in the same bed.
While FC3 M slept, the appellant digitally penetrated her and then
penetrated her vagina with his penis without a condom. He continued doing
this until FC3 M awoke. Upset, FC3 M fled to the bathroom where she called
a friend to pick her up.
   Following the appellant’s guilty plea, the CA’s staff judge advocate (SJA)
advised that “action on the guilty findings or sentence is a matter within [the
CA’s] discretion,” but recommended that the CA “approve the sentence as
adjudged and order it executed in accordance with the terms of the Pre-Trial
Agreement.”2 In response, trial defense counsel submitted clemency matters
pursuant to RULE FOR COURTS-MARTIAL 1105, MANUAL FOR COURTS
MARTIAL, UNITED STATES (2012 ed.), requesting that the CA “disapprove all
confinement over 12 months.”3 As authority for this request, trial defense
counsel cited to Article 60, UCMJ, asserting that this article gave the CA




   1  Once again, we are required to review a gross misstatement on the applicability
of Article 60, UCMJ, put forward by a trial defense counsel in clemency and, in some
cases, left uncorrected by the staff judge advocate. See United States v. Atkins, No.
201600297, 2017 CCA LEXIS 192, unpublished op. (N-M. Ct. Crim. App. 28 Mar
2017); United States v. Johnson, No. 201600254, 2017 CCA LEXIS 46, unpublished
op. (N-M. Ct. Crim. App. 31 Jan 2017) (per curiam); United States v. Garcia, No.
201600116, 2016 CCA LEXIS 714, unpublished op. (N-M. Ct. Crim. App. 15 Dec
2016); United States v. Calixto, No. 201600049, 2016 CCA LEXIS 706, unpublished
op. (N-M. Ct. Crim. App. 8 Dec 2016); United States v. Stanton, No. 201600253, 2016
CCA LEXIS 667, unpublished op. (N-M. Ct. Crim. App. 17 Nov 2016) (per curiam).
   2   Staff Judge Advocate’s Recommendation (SJAR) of 12 Jul 2016 at 1, 3.
   3   Trial Defense Counsel ltr of 4 Aug 2016 at 1.


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                  United States v. Golden-Franklin, No. 201600303


power to “disapprove, commute or suspend an adjudged sentence of
confinement for up to six months.”4
    Following the appellant’s clemency petition, the SJA submitted an
addendum, which offered no further comment on the CA’s clemency powers
(or lack thereof).5 The CA denied the clemency request and approved the
sentence as adjudged after considering “the record of trial; the pre-trial
agreement . . . the results of trial . . . the detailed defense counsel letter of 4
August 2016 . . . the Staff Judge Advocate’s Recommendation . . . and the
Addendum [recommendation].”6
                                    II. DISCUSSION
    “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). That right extends to post-trial
proceedings. United States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). 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) (citation and internal quotation marks
omitted). 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)). Thus, the appellant bears the burden
of demonstrating (1) that his counsel’s performance was deficient to the point
that he “was not functioning as the ‘counsel’ guaranteed . . . by the Sixth
Amendment” and (2) that the deficient performance prejudiced the defense.
Id. (citations and internal quotation marks omitted).
   In evaluating claims of post-trial 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 (C.A.A.F. 1997)).
   Pursuant to now, nearly three-year-old changes to Article 60, UCMJ, a
CA 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” unless certain

   4   Id.
   5   SJAR Addendum of 17 Aug 2016 at 3.
   6   Convening Authority Action of 24 Aug 2016 at 3.


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                   United States v. Golden-Franklin, No. 201600303


exceptions apply.7 As a result of these changes, the CA could not grant trial
defense counsel’s requested relief. See United States v. Kruse, 75 M.J. 971,
975 (N-M. Ct. Crim. App. 2016) (holding such an action by the CA to be ultra
vires).
    However, regardless of whether the trial defense counsel’s understanding
of Article 60, UCMJ, was patently deficient, we conclude that the appellant
has not made a colorable showing of possible prejudice. The appellant has not
articulated any specific prejudice that resulted from the request for
unauthorized relief, and has submitted no evidence indicating how his trial
defense counsel’s clemency submission contrasted with his wishes.8 Of note,
trial defense counsel stated in her sentencing argument that the appellant
“should not be a Petty Officer. You should reduce him to an E-3.”9 Likewise,
the appellant fails to adequately describe what the CA “might have done to
structure an alternative form of clemency.” United States v. Capers, 62 M.J.
268, 270 (C.A.A.F. 2005). While the CA had limited discretion to act upon the
appellant’s reduction in rank, the appellant submitted no evidence that he
desired any such relief, or alternatively, that he was improperly advised
regarding any potential clemency.
                                III. CONCLUSION
   The findings and sentence as approved by the CA are affirmed.


                                      For the Court




                                       R.H. TROIDL
                                       Clerk of Court




   7 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66,
127 Stat. 672, 956-57 (2013). Those exceptions do not apply to this case.
   8  See United States v. Starling, 58 M.J. 620, 622-23 (N-M. Ct. Crim. App. 2003)
(finding that “bare allegations” of “inadequate representation” are not “seriously
entertained” by courts without submission of an affidavit showing how counsel acted
contrary to appellant’s wishes); United States v. Pierce, 40 M.J. 149, 151 (C.M.A.
1994) (finding that vague or general intimations with regards to what the appellant
would have submitted to the convening authority is insufficient to show prejudice).
   9   Record at 82.


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