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

                              No. 201600204
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                ANGEL M. MALDONADO-NEGRIN
              Private First Class (E-2), U.S. Marine Corps
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

         Military Judge: Major Forrest W. Hoover, USMC.
     Convening Authority: Commanding Officer, 2d Intelligence
   Battalion, II Marine Expeditionary Force, Camp Lejeune, NC .
Staff Judge Advocate’s Recommendation: Colonel Kevin S. Woodard,
                               USMC.
          For Appellant: Major Jason L. Morris, USMCR.
  For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
           USN; Lieutenant Jetti L. Gibson, JAGC, USN.
                      _________________________

                          Decided 28 March 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.
                     _________________________

   RUGH, Judge:
    A military judge sitting as a special court-martial convicted the appellant,
consistent with his pleas, of unauthorized absence, wrongful use of heroin,
larceny, and dishonorably failing to pay just debts—violations of Articles 86,
112a, 121, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
886, 912a, 921, and 934. The military judge sentenced the appellant to 12
              United States v. Maldonadonegrin, No. 201600204


months’ confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence as adjudged.
    The appellant now raises three assignments of error: (1) that the staff
judge advocate’s (SJA) recommendation was incorrect because if did not
attach or summarize the pretrial agreement (PTA); (2) that trial defense
counsel was ineffective; and (3) that the appellant’s sentence was
inappropriately severe.1 We disagree, and, finding no error materially
prejudicial to the appellant’s substantial rights, we affirm the findings and
sentence. Arts. 59(a) and 66(c), UCMJ.
                                 I. BACKGROUND
   By late summer 2015 the appellant was a heroin addict. To support this
addiction, he borrowed over $2,600.00 from 9 other young Marines, deceiving
them as to his reasons for borrowing the money, falsely promising to repay
them on his next pay day, and purposefully evading them when time for
repayment arrived. Additionally, he stole $800.00 from another Marine by
exchanging cash for checks he knew to be worthless. During this same period,
he embarked on two periods of unauthorized absence in order to acquire and
use heroin.
                                 II. DISCUSSION
A. SJA’s recommendation (SJAR)
    The appellant now asserts that the SJAR was deficient in that it did not
attach or summarize the pretrial agreement between the appellant and the
CA in violation of RULE FOR COURT-MARTIAL (R.C.M.) 1106(d)(3), MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), and that this error requires
we remand this case for new post-trial processing. We disagree.
    On 7 and 10 December 2015, the appellant and the CA signed,
respectively, a PTA in which the appellant agreed to plead guilty to certain
preferred charges in consideration for referral of those charges to a special,
vice general, court-martial. As a result, the PTA capped the appellant’s
punitive exposure at the jurisdictional sentence limits of a special court-

    1 Although not raised as error, the appellant asserts, and the Government agrees,

that the promulgating order incorrectly failed to comply with RULE FOR COURT-
MARTIAL (R.C.M.) 1114(c) because it did not include a summary of Specification 1 of
Charge III. Appellant’s Brief of 12 Sep 2016 at 1, n.1; Government’s Brief of 12 Dec
2016 at 10-11. However, we note that R.C.M. 1114(c) only requires the promulgating
order set forth “the charges and specifications, or a summary thereof, on which the
accused was arraigned.” As Specification 1 of Charge III was withdrawn from the
court-martial and dismissed prior to arraignment, Record at 4, no notation in the
promulgating order is required. As a result, we decline the parties’ invitation to
summarize the specification in the supplemental order.

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martial.2 After announcing the sentence, the military judge reviewed the PTA
with the appellant and confirmed that it had no effect on the sentence he
awarded.
    In the SJAR, completed on 16 May 2016, five months after the PTA was
signed by the parties, the staff judge advocate wrote, “[t]he pretrial
agreement has no effect on the sentence adjudged.”3
    “Failure of counsel for the accused to comment on any matter in the
[SJAR] . . . in a timely manner shall [forfeit]4 later claim of error with regard
to such matter in the absence of plain error.” R.C.M. 1106(f)(6).5 Plain error
exists when “(1) there was an error; (2) it was plain or obvious; and (3) the
error materially prejudiced a substantial right.” United States v. Kho, 54 M.J
63, 65 (C.A.A.F. 2000) (citations omitted). When assessing prejudice for post-
trial error in an SJAR, courts only require that the appellant make “some
colorable showing of possible prejudice.” United States v. Chatman, 46 M.J.
321, 323-24 (C.A.A.F. 1997). Without deciding whether the phrase “[t]he
pretrial agreement has no effect on the sentence adjudged” was sufficient to
comply with R.C.M. 1106(d)(3), we find that the appellant has not met the
low threshold for demonstrating prejudice, even if plain or obvious error
existed.
   In December 2015, the CA signed the PTA, agreeing to refer the charges to
a special court-martial. One month later, the same CA referred the charges to
a special court-martial in compliance with the PTA. Four months later, the
CA received the SJAR, which referred to the PTA as having no effect; and, a
copy of the Report of Results of Trial attached to the SJAR, which also
indicated that there was a PTA and that it had no effect. The CA’s
involvement in the PTA, which was so long ingrained in the fabric of the case,
precludes any impact on the appellant’s substantial rights. As a result, we
decline to remand for a new recommendation and action.




   2   Appellate Exhibit II at 1.
   3   SJAR of 16 May 2016 at 1.
   4  For clarity’s sake, we substitute the text’s original term “waive,” for the more
legally accurate term “forfeit,” as was intended by the drafters, as evidenced by the
use of the subsequent phrase “in the absence of plain error.” See United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (“Waiver is different from forfeiture.
Whereas forfeiture is the failure to make a timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known right.”) (citations and
internal quotation marks omitted).
   5   See also United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).

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B. Ineffective assistance of counsel
    The appellant alleges his counsel was ineffective for: (1) failing to
introduce evidence or expert testimony on the origin of his addiction to heroin
in sentencing; (2) failing to investigate or introduce favorable testimony from
his victims in sentencing; (3) presenting a deficient argument on sentencing;
and (4) submitting a deficient clemency request.
   After findings, the government introduced seven exhibits, including a
confessional stipulation of fact, a note from the appellant explaining his
motive for his unauthorized absence, muster reports, a report of positive
urinalysis, statements from nine of ten victims and several service record
book documents, including previous disciplinary counseling records.
Additionally, the government introduced testimony from one of the victims
who lent the appellant over $1,500.00. Subsequently, the defense introduced
three exhibits: a series of eight letters from members of the appellant’s home
community espousing his good moral character and opportunity for success
post-military; several pictures of the appellant with his family, including his
wife and infant daughter; and a lengthy letter from the appellant. The
defense also introduced testimony from the appellant’s mother, his wife, and
his own unsworn statement. During this statement, the appellant
emphasized his rehabilitative potential:
         Now that I am clean, I am confident that I will make the right
         decisions when [I] get released. I have also been attending
         [Alcoholics Anonymous/Narcotics Anonymous] meetings, and it
         has helped me stay focused on the challenges that will come
         when I am released from the brig. I plan to move back from
         Orlando, Florida, after I leave the Marine Corps. My wife and
         our beautiful one-year-old daughter are waiting there for me,
         and so is the rest of my family. I plan to improve my
         relationship with my wife and daughter, and seek spiritual
         guidance to have a better family.6
   The rehabilitation refrain was repeated by his trial defense counsel
during sentencing argument:
         [The appellant] is an addict. That doesn’t excuse or provide any
         justification for what he did. But it does provide some sort of
         insight into what was going on in his world in the span of a few
         months. . . . He has now had the opportunity to [be] clean and
         sober in the brig. He’s going to counseling. He’s attending
         Narcotics Anonymous meetings; and he’s meeting with a pastor
         at the brig. . . . He’s got a family that’s going to accept him and

   6   Record at 120.

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         be there to help him. He’s got a wife and child that need him.
         The wife had said she will welcome him back . . . home. Sir, for
         these reasons we ask that you sentence [the appellant] to time
         served.7
    On 27 May 2016, trial defense counsel submitted a post-trial request for
clemency, identifying the time and resources saved by the appellant’s guilty
plea. It also highlighted the appellant’s successful repayment of $4,100.00 in
restitution to his victims, which was a requirement of his PTA. The trial
defense counsel then requested that “any clemency available be granted by
the convening authority.”8
   The Sixth Amendment right to effective assistance of counsel at courts-
martial is a fundamental right of service members. 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)). 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).
The ultimate determinations of whether defense counsel was deficient and
whether the deficiency was prejudicial are reviewed de novo. Id.; United
States v. McClain, 50 M.J. 483, 487 (C.A.A.F. 1999).
   We apply the two-prong test set forth by the Supreme Court in Strickland
v. Washington, 466 U.S. 668, 687 (1984) to determine whether counsel
rendered ineffective representation. “The 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.
Cronic, 466 U.S. 648, 658 (1984); United States v. Garcia, 59 M.J. 447, 450
(C.A.A.F. 2004). This presumption is rebutted only when there exists a
showing of specific errors made by defense counsel that are unreasonable
under prevailing professional standards. United States v. Davis, 60 M.J. 469,
473 (C.A.A.F. 2005).9


   7   Id. at 125-26.
   8   Detailed Defense Counsel Request of 27 May 2016.
   9  See also Strickland, 466 U.S. at 688 (finding that the Sixth Amendment entitles
criminal defendants to representation that does not fall “below an objective standard
of reasonableness” in light of “prevailing professional norms”).

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    “We do not measure deficiency based on the success of a trial defense
counsel’s strategy, but instead examine whether counsel made an objectively
reasonable choice in strategy from the available alternatives.” United States
v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (citations and internal quotation
marks omitted). “[S]trategic choices made by trial defense counsel are
‘virtually unchallengeable’ after thorough investigation of the law and the
facts relevant to the plausible options.” Id. at 371 (quoting Strickland, 466
U.S. at 690-91).
    The second prong requires a showing of prejudice resulting from counsel’s
deficient performance. Strickland, 466 U.S. at 687. Such prejudice must
result in the denial “of a fair trial, a trial whose result is unreliable.” United
States v. Dewrell, 55 M.J. 131, 133 (C.A.A.F. 2001) (citation and internal
quotation marks omitted). The appropriate test for this prejudice is whether
there is a reasonable probability that, but for counsel’s error, there would
have been a different result. United States v. Quick, 59 M.J. 383, 387
(C.A.A.F. 2004).
   Here, the appellant has not met his burden of demonstrating his trial
defense counsel was ineffective.
    First, the appellant asserts that his addiction began after he was
prescribed otherwise-unidentified pain pills by a military sports medicine
clinic in order to treat pain from a broken rib. After that prescription expired,
the appellant began using unprescribed Oxycodone, acquired for several
months through a friend. After this illicit source was no longer available, the
appellant moved on to heroin.
    Neither the original use of the legal pain medication nor the apparently
illegal use of unprescribed Oxycodone was introduced into evidence for
consideration by the military judge. Likewise, the defense did not request
expert assistance or introduce expert testimony discussing the relationship of
prescription medications to heroin addiction. However, the military judge was
aware that the appellant was addicted to heroin and had been taking steps to
overcome his addiction in preparation for life outside of confinement.
   Regardless, the decision to forgo potentially mitigating evidence—that he
began the path towards opioid addiction through legal means—in an effort to
avoid additional aggravating evidence—that his addiction took root through
personal, and potentially illegal, efforts—seems inherently reasonable.
Further highlighting his uncharged misconduct through expert testimony
and cross-examination would seem to exacerbate its potential harm. As a
result, the appellant has failed to demonstrate why this strategic decision
was objectively unreasonable.




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    Second, the appellant proffers insufficient information as to the expected
testimony of the seven victims not already before the court. Each of the
victims provided a written statement in aggravation describing the amount of
money the appellant borrowed and its impact on him or her. However, prior
to sentencing, the military judge was also made aware that the appellant was
required to repay each of those loans prior to the court-martial as part of his
PTA. Now, the appellant proffers only that the Marines may have been able
to testify regarding his military character or general good character. He does
so without additional, amplifying information and does not provide specificity
as to what the witnesses would have said if called to testify. Simply put, the
appellant has not demonstrated prejudice as required by Strickland, and
therefore does not provide a basis upon which we can grant relief. United
States v. Perez, 64 M.J. 239, 244 (C.A.A.F. 2006).
    Third, while the appellant avers that the length of his counsel’s
sentencing argument is evidence of incompetence, this assertion is inapt. The
time spent arguing a point is not the measure of an advocate’s effectiveness,
let alone the test for deficient performance. Here, trial defense counsel
effectively established the theme of his sentencing case—rehabilitation from
drug addiction and the continuing support of the appellant’s family—through
the defense exhibits, the testimony of family members, and the appellant’s
own statement. He then capitalized on that theme through a brief but direct
plea for time served. From the record before us, we find no cause to question
the effectiveness of that strategy in sentencing.
    Fourth, the National Defense Authorization Act for Fiscal Year 201410
significantly limited the CA’s authority under Article 60, UCMJ, to affect
findings and sentences for all but the most minor offenses committed on or
after 24 June 2014, including cases when the adjudged sentence includes
confinement for more than six months or a punitive discharge. Art.
60(c)(3)(D), UCMJ. As a result of these changes, the CA here was prohibited
from granting most forms of relief that the appellant may have previously
requested. The CA could not disapprove the findings and his discretion to
modify the adjudged sentence was limited largely to action on the appellant’s
reduction in pay grade (from paygrade E-2 to E-1) or deferral and waiver of
automatic forfeitures or reduction. Given these meager choices, a request for
“any clemency available” was reasonable.
    For these reasons, we find trial defense counsel’s performance was not
deficient, did not result in prejudice to the appellant, and did not fall “below



   10   Pub. L. No. 113-66, 127 Stat. 672 (2013).



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              United States v. Maldonadonegrin, No. 201600204


an objective standard of reasonableness” in light of “prevailing professional
norms.” Strickland, 466 U.S. at 688.
C. Sentence appropriateness
   The appellant also asserts that his sentence to a bad-conduct discharge
was inappropriately severe.
    We review the record for sentence appropriateness de novo. United States
v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “Sentence appropriateness involves the
judicial function of assuring that justice is done and that the accused gets the
punishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). “This requires individualized consideration of the particular accused
on the basis of the nature and seriousness of the offense and the character of
the offender.” United States v. McDonald, No. 201400357, 2016 CCA LEXIS
310, at *4, unpublished op. (N-M. Ct. Crim. App. 2016) (per curiam) (citations
and internal quotation marks omitted). “While [a Court of Criminal Appeals]
has the authority to disapprove part or all of the sentence findings,” we may
not engage in acts of clemency. United States v. Nerad, 69 M.J. 138, 145
(C.A.A.F. 2010).
     While acknowledging the addiction at the heart of his deleterious conduct,
it is also relevant that the appellant stoked that addiction on the backs of his
fellow Marines. Under the circumstances of this case, we are convinced that
justice was done, and that the appellant received the punishment he
deserved. Healy, 26 M.J. at 395. Granting relief at this point would be to
engage in clemency, a prerogative reserved for the CA, and we decline to do
so.
                              III. CONCLUSION
   The findings and sentence, as approved by the CA, are affirmed.
   Senior Judge CAMPBELL and Judge HUTCHISON concur.
                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




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