               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                      DONALD J. MCALLISTER
              CHIEF HOSPITAL CORPSMAN (E-7), U.S. NAVY

                           NMCCA 201300086
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 25 October 2012.
Military Judge: LtCol Charles Hale, USMC.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: LCDR S.J. Gawronski,
JAGC, USN.
For Appellant: Frank J. Spinner, Esq.; LT Jessica Fickey,
JAGC, USN.
For Appellee: LT Ann Dingle, JAGC, USN.

                             20 March 2014

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                     OPINION OF THE COURT
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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 pleas, of violating two
lawful general orders,1 one specification of maltreatment, and

1
  One specification alleged a violation of the Department of the Navy’s Policy
on Sexual Harassment, Secretary of the Navy Instruction 5300.26D (3 Jan
2006), and the other alleged a violation of the Department of the Navy’s
Policy on Fraternization, Chief of Naval Operations Instruction 5370.2C (26
Apr 2007).
one specification each of aggravated sexual contact, wrongful
sexual contact, and abusive sexual contact, in violation of
Articles 92, 93, and 120, Uniform Code of Military Justice, 10
U.S.C. §§ 892, 893, and 920 (2008). The military judge
sentenced the appellant to 14 years’ confinement, reduction to
pay grade E-1, and a dishonorable discharge. The convening
authority (CA) approved the sentenced as adjudged and, pursuant
to a pretrial agreement, suspended all confinement in excess of
seven years.

     In his appeal, the appellant argues that his trial defense
counsel (TDC) was ineffective on two accounts; first, by
informing the appellant that he had no defense when in fact a
viable mistake of fact defense existed; and second when TDC
failed to obtain a personal clemency letter from the appellant
to submit to the CA.

     After carefully considering the record of trial and the
submissions of the parties, we are convinced that the findings
and the sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     At the time of the offenses, the appellant was a 32-year-
old independent duty corpsman assigned to a small command
located at Newport, Rhode Island. Over an approximate two year
period, he frequently sexually harassed one of his subordinate
corpsmen in the medical clinic, HM2 1. Although married with
two children, the appellant, a bisexual, was sexually attracted
to HM2 1 and made repeated and unwelcome sexual advances toward
him. During his guilty plea inquiry, the appellant acknowledged
that his behavior took an “aggressive” tone when he persistently
asked HM2 1 for sexual favors and sexually suggestive
photographs of HM2 1 and his girlfriend. Record at 79-81, 87.
He also admitted that his behavior spanning nearly two years
caused HM2 1 to suffer mentally. Id. at 84-88.

     Additionally, on three separate occasions, the appellant
administered an intravenous injection (IV) to a junior corpsman
containing the drug “Phenergan” and, once his victim was either
asleep, unconscious, or substantially incapacitated from the
effects of the IV, he exposed his victim’s penis and performed
fellatio.2 The first time occurred at a party the appellant
2
  Two of the Article 120 offenses involved the same victim, HM2 2.   The
remaining Article 120 offense involved HM2 1.

                                      2
hosted for several junior corpsmen while his wife and children
were out of town. Several of these Sailors were visibly drunk
and the appellant suggested that they all “practice giving IVs
to each other.” When several hesitated, the appellant persuaded
them by saying it would “help to prevent a hangover the next
morning[].” Prosecution Exhibit 1 at 3. After starting the
IVs, the appellant proceeded to inject Phenergan into the IV bag
of one of the junior corpsmen to whom he was sexually attracted,
HM2 2.

     During the providence inquiry, the appellant admitted that
he gave Phenergan to HM2 2 knowing that when combined with
alcohol it would “knock him out” and provide the appellant with
an opportunity to perform fellatio upon HM2 2 while he was
either asleep or unconscious. Record at 91-98. The appellant
used a similar tactic at the medical clinic. On two additional
occasions, he gave his victim intravenous injections containing
Phenergan during sick call and then performed fellatio upon his
victim while his victim was either asleep or otherwise under the
effects of the drug. Id. at 102-09, 112-34.

     When explaining the elements of the Article 120 offenses to
the appellant, the military judge repeatedly explained the
defense of mistake of fact as to consent. Id. at 90-91, 100-01,
111-12. Each time the appellant acknowledged that he understood
the defense and explained in detail why he believed it did not
apply. Id. at 97-98, 103-06, 108, 112-14, 117, 124, 126-28.

     Following trial, TDC submitted a lengthy clemency letter
including several letters from the appellant’s immediate family.
Clemency Request of 11 Feb 2013. TDC asked that the CA reduce
the appellant’s sentence of confinement by 24 months and offer
the appellant sex offender rehabilitation treatment either at
the U.S. Disciplinary Barracks (USDB) at Fort Leavenworth, KS or
at an alternate location. Id. at 2. In his letter, TDC
explained that the appellant was being treated at USDB for
depression and, although amenable to sex offender treatment
there, was unlikely to receive it due to a long wait for such
treatment at the USDB. Id. at 2-4. Although TDC included
personal letters from the appellant’s wife, mother, father, and
stepmother with his submission, he did not include a letter from
the appellant.

                         Discussion

     In support of his ineffective assistance claim, the
appellant offers two unsworn declarations. Appellant’s

                                3
Nonconsent Motion to Attach of 10 Oct 2013. In the first, he
alleges that he told TDC that he believed his two victims
consented to his sexual conduct.3 Since TDC told him that they
would only lose at trial, he alleges that he believed he had no
other option but to enter a pretrial agreement and plead guilty.4
In his second declaration, the appellant asserts that TDC did
not assist him in submitting a personal request as part of a
post-trial clemency package.

     We review claims of ineffective assistance of counsel under
the test outlined by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). We review such claims de novo.
United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007)
(citation omitted). To prevail, “an appellant must demonstrate
both (1) that his counsel's performance was deficient, and (2)
that this deficiency resulted in prejudice.” United States v.
Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland,
466 U.S. at 687) (additional citation omitted).

     In the guilty plea context, the first part of the
Strickland test remains the same -- whether counsel’s
performance fell below a standard of objective reasonableness
expected of all attorneys. United States v. Bradley, 71 M.J. 13,
16 (C.A.A.F 2012) (citing Hill v. Lockhart, 474 U.S. 52, 56—58
(1985)). The second prong, however, is modified to focus on
whether the “ineffective performance affected the outcome of the
plea process.” Hill, 474 U.S. at 59. “(T)o satisfy the
‘prejudice requirement,’ the defendant must show that there is a

3
  Although the appellant refers to the maltreatment and sexual harassment
offenses in passing, he offers no facts in his declaration to undermine his
sworn admissions at trial that his workplace conduct created a hostile
working environment, and were cruel or oppressive. He focuses his post-trial
declaration on the three Article 120 offenses and his putative belief that
the victims consented to his sexual conduct.
4
  The appellant alludes to statements he allegedly made to a RULE FOR COURTS-
MARTIAL 706, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) board that presumably
would corroborate his post-trial assertions.           At trial, the parties
represented to the military judge that an R.C.M. 706 board had been
conducted; however, no copy of the report was appended to the record. Record
at 17. Later during trial the military judge discussed with both TDC and the
appellant whether any issues pertaining to mental responsibility were raised
by the board and whether the viability of any related defense had likewise
been discussed between the appellant and his counsel. Id. at 255-57. Both
TDC and the appellant denied any such defense existed. Id. at 256-57. The
appellant apparently is in possession of the full R.C.M. 706 report, but did
not include any portion that corroborates his post-trial assertions. See
Appellant’s Nonconsent Motion for Fifth Enlargement of Time of 14 Aug 2013 at
2.


                                          4
reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to
trial.” Id.

     An ineffective assistance claim requires both a serious
deficiency and actual prejudice, and the appellant carries the
burden to prove both. Tippit, 65 M.J. at 76. It is a burden of
production as well as persuasion, especially when factual
allegations are central to the claim of ineffectiveness. United
States v. Moulton, 47 M.J. 227, 229-30 (C.A.A.F. 1997). If a
factual dispute exists over a matter pertinent to the
appellant’s claim, then we must decide whether further fact-
finding is warranted under United States v. Ginn, 47 M.J. 236
(C.A.A.F. 1997). If, however, the record as a whole and the
appellate filings “compellingly demonstrate[s]” the
improbability of the appellant’s factual allegations, we may
ignore his post-trial assertions and decide the underlying
claim. Ginn, 47 M.J. at 248.

1. Mistake-of-Fact Defense and Decision to Plead Guilty

     According to his post-trial declaration, the appellant
believed that both victims consented to his conduct and he
explained as much to TDC. Yet he offers no amplifying facts in
his post-trial declaration, and the record of trial flatly
contradicts his claim. At numerous times throughout the
appellant’s providence inquiry he repeatedly acknowledged that
his victims were asleep, unconscious, or unable to consent to
his conduct. The military judge repeatedly probed on this
subject asking him if any previous contact or pre-existing
relationship indicated to the appellant that the victim may have
consented. Each time the appellant, without hesitation or
uncertainty, denied any such belief. Furthermore, he stipulated
that on two of the three occasions he knew that his victim was
unconscious, asleep or otherwise unable to consent to the sexual
contact. PE 1 at 4-6. On the third occasion, he stipulated
that after initiating an IV containing Phenergan, he “dimmed the
lights so that it was dark” in the examination room and then
left. Id. at 4. After several minutes, he returned and
proceeded to unzip his victim’s pants, remove his penis and
perform fellatio, all without any response from his victim. Id.
Finally, he stipulated that his conduct with respect to this
occasion was without lawful justification or his victim’s
permission. Id. at 4-5.

     In short, nothing in the record supports the appellant’s
post-trial claim of a mistake of fact as to consent defense.

                                5
Additional evidence offered by the Government in aggravation
reinforced the appellant’s admissions during the plea inquiry
that his conduct was nonconsensual.5 We conclude that the
record, as a whole, compellingly demonstrates the improbability
of the appellant’s post-trial assertions as to what transpired
before his decision to enter into a pretrial agreement and plead
guilty.

2. Absence of Personal Letter in Post-Trial Clemency Submission

     In his second declaration, the appellant alleges that TDC
failed to contact him and obtain a personal letter in support of
his clemency petition. Even assuming his allegation were true,
we conclude that the appellant fails to demonstrate prejudice as
a result, i.e. “‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.’” United States v. Wiley, 47 M.J.
158, 159 (C.A.A.F. 1997) (quoting Strickland, 466 U.S. at 694).

     The result of the appellant’s post-trial process could only
have been different if the appellant had additional favorable
clemency matters to submit, and he must prove the existence of
such matters to demonstrate prejudice. United States v.
Starling, 58 M.J. 620, 623 (N.M.Ct.Crim.App. 2003). However,
the appellant offers no such details. See United States v.
Pierce, 40 M.J. 149, 151 (C.M.A. 1994) (holding that “[v]ague or
general intimations” are insufficient to demonstrate prejudice
when claiming post-trial ineffective assistance).6



                               Conclusion

     Accordingly, we affirm the findings and the sentence as
approved by the CA.


5
    Record at 156-58, 161-64, 175-77, 184-87; PE 3 at 2; PE 4 at 2-4.
6
  In this regard, we found it unnecessary to order production of an affidavit
from TDC. Such an affidavit is unnecessary unless we “review[] the
allegation of ineffectiveness and the government response, examine[] the
record, and determine[] that the allegation and the record contain evidence
which, if unrebutted, would overcome the presumption of competence.” United
States v. Lewis, 42 M.J. 1, 6 (C.A.A.F. 1995) (citation omitted). By
assuming a deficiency, we have taken as unrebutted the appellant’s assertions
about his counsel’s performance, but neither those assertions nor the record
provide a factual predicate for a finding of prejudice. See United States v.
Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000).

                                        6
For the Court



R.H. TROIDL
Clerk of Court




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