          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                       Airman First Class JOE A. MONTOYA, IV
                                United States Air Force

                                        ACM 38116 (recon)

                                             17 July 2014

         Sentence adjudged 29 February 2012 by GCM convened at Luke
         Air Force Base, Arizona. Military Judge: Joseph S. Kiefer (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 42 months,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant:                Major Scott W. Medlyn and
         Captain Michael A. Schrama.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Daniel J. Breen;
         Major Rhea A. Lagano; and Gerald R. Bruce, Esquire.

                                                 Before

                            ALLRED, HARNEY, and MITCHELL
                                Appellate Military Judges

                                   OPINION OF THE COURT
                                       UPON REMAND

                   This opinion is subject to editorial correction before final release.



HARNEY, Senior Judge:

        In accordance with his pleas, the appellant was convicted by a military judge
sitting as a general court-martial of one specification of rape by using force against
another person, in violation of Article 120, UCMJ, 10 U.S.C. § 920. The military judge
sentenced the appellant to a dishonorable discharge, confinement for 42 months, total
forfeiture of all pay and allowances, and reduction to E-1. The convening authority
approved the sentence as adjudged.1

                                            Procedural History

         On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority under
title 5, United States Code, section 3101 et seq.,” issued a memorandum that “appoint[ed]
Mr. Laurence M. Soybel, a civilian employee of the Department of the Air Force, to
serve as appellate military judge on the Air Force Court of Criminal Appeals.”
Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force Eric Fanning,
(25 June 2013).

       When the appellant’s case was initially before us, the appellant raised three issues
for our review: (1) improper argument by trial counsel; (2) ineffective assistance of
counsel;2 and (3) sentence severity.

        On 14 August 2013, we issued a decision denying the appellant relief.
United States v. Montoya IV, ACM 38116 (A.F. Ct. Crim. App. 14 August 2013) (unpub.
op.). Pursuant to his appointment by the Secretary of Defense, Mr. Soybel was a member
of the panel. The appellant moved our superior court to vacate the decision on the basis
of Mr. Soybel’s participation, and on 31 October 2013, our superior court converted the
appellant’s motion to vacate, which was pending before our court, into a motion for
reconsideration. United States v. Montoya IV, 73 M.J. 91 (C.A.A.F. 2013) (mem.). On
15 April 2014, our superior court issued its decision in United States v. Janssen, 73 M.J.
221, 225 (C.A.A.F. 2014), holding that the Secretary of Defense did not have the
legislative authority to appoint civilian employees as appellate military judges and that
his appointment of Mr. Soybel to this Court was “invalid and of no effect.”

       In light of Janssen, we granted the motion for reconsideration on 29 April 2014
and permitted the appellant to file a supplemental assignment of errors. The appellant
submitted a supplemental assignment of errors, asserting he is entitled to relief due to
unreasonable appellate delay. With a properly constituted panel, we have reviewed the
appellant’s case, to include the appellant’s previous and current filings and the previous
opinions issued by this Court. Finding no error that materially prejudices a substantial
right of the appellant, we affirm the findings and sentence.




1
  Pursuant to the terms of a pretrial agreement, the convening authority agreed to cap confinement at 10 years and
dismiss one charge and one specification of sodomy, in violation of Article 125, UCMJ, 10 U.S.C. § 925. That
charge was withdrawn and dismissed after arraignment.
2
  This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                        2                                    ACM 38116 (recon)
                                        Background

       On 28 October 2011, the appellant went to an on-base party, where he met the
18-year-old civilian victim, JT. After a night of drinking alcohol, the appellant asked if
someone would walk him back to his dorm room. JT offered to walk him back. While in
his room, the appellant and JT engaged in consensual kissing. The appellant began to
take off JT’s clothing. JT told the appellant she did not want to have sexual intercourse
with him. The appellant continued to remove JT’s clothing and put his penis in her
vagina despite her telling him several times “no” and “stop.” JT physically resisted by
using her hands to push against the appellant’s chest, but the appellant used his body
weight to hold JT down. After a few minutes, the appellant stopped having sexual
intercourse with JT. JT got dressed and left.

                                    Improper Argument

        During sentencing argument before the military judge, trial counsel made several
statements the appellant claims were improper and amounted to prosecutorial
misconduct. The appellant asserts that trial counsel argued facts not in evidence before
the court. Those comments consisted of trial counsel arguing that the appellant’s actions
were both service-discrediting and impacted good order and discipline in the armed
forces, as well as arguing that the victim inherently trusted the appellant due to his status
as a military member. Because trial defense counsel failed to object to trial counsel’s
argument, we review the issue for plain error. United States v. Erickson, 65 M.J. 221,
223 (C.A.A.F. 2007); United States v. Gilley, 56 M.J. 113, 123 (C.A.A.F. 2001). “To
prevail under a plain error analysis, [the appellant] must demonstrate that: “(1) there was
an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial
right [of the appellant].” Erickson, 65 M.J. at 223 (quoting United States v. Kho, 54 M.J.
63, 65 (C.A.A.F. 2000)). We conclude that trial counsel did not engage in misconduct
through any comments made during the sentencing argument and find no plain error.

       At the beginning of his argument, when proposing a punishment, trial counsel
pointed out that “a civilian of the local community was raped . . . by the accused.” Trial
counsel then asked rhetorically, “Did his crime bring dishonor upon the United States
Air Force? Absolutely.” Trial counsel continued:

       And there’s no one in this room who can say the accused, who was just
       found guilty of rape, maintains the basic standard of a member of the
       Air Force and should be walking around freely. The accused raped a
       civilian who is supposed to trust an Air Force member to keep her safe.

       Soon thereafter, in the context of arguing for confinement, trial counsel referred to
the victim’s trauma:



                                             3                              ACM 38116 (recon)
      She’s having a hard time going through the day. . . . [H]er school has been
      affected. Her life has been turned upside down and she can’t even live a
      normal student life anymore. All of this happened because she trusted a
      military member, because she wanted to help a military member who she
      thought would keep her safe.

        In the context of arguing for a dishonorable discharge, trial counsel asserted,
“What [the appellant] did had a direct impact . . . on [JT] and the United States
Air Force. Civilians are supposed to trust military members to keep her safe and nothing
[sic] ever happened to her.” Trial counsel continued, “The accused has brought dishonor
to the United States Air Force, including all the members like you and me.” Trial counsel
urged the military judge to tell “[JT], her father and mother and all those who wonder
about our military system and what would happen if you rape someone, all military
members should be able to say the United States Air Force is here to protect them.” Trial
counsel wrapped up the argument by again focusing the military judge on the gravity of
the crime and the victim’s civilian status: “[Y]ou can say to our civilian community that
the United States Air Force is protecting them by sending the right message.”

       “A trial counsel is charged with being a zealous advocate for the Government.”
United States v. Barrazamartinez, 58 M.J. 173, 176 (C.A.A.F. 2003) (citing United States
v. Nelson, 1 M.J. 235, 238 (C.M.A. 1975)). As a zealous advocate, trial counsel may
“argue the evidence of record, as well as all reasonable inferences fairly derived from
such evidence.” United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (citing
United States v. Edwards, 35 M.J. 351 (C.M.A. 1992)). See also Nelson, 1 M.J. at 239.
During sentencing argument “trial counsel is at liberty to strike hard, but not foul,
blows.” Baer, 53 M.J. at 237. Trial counsel may not “seek unduly to inflame the
passions or prejudices of the court members.” United States v. Clifton, 15 M.J. 26, 30
(C.M.A. 1983) (citing United States v. Shamberger, 1 M.J. 377 (C.M.A. 1976)).

        In this case, the appellant, an Air Force member, raped an 18-year-old girl from
the local civilian community in a dormitory room on an Air Force base. When viewed in
the context of the entire court-martial, we find trial counsel’s comments to not only be
fair but, also reasonable inferences fairly derived from the evidence. See Gilley,
56 M.J. at 121. The victim testified about the ongoing trauma she suffered because of the
rape. She testified how she continually had flashbacks to the rape, how the incident
affected her relationship with her parents, and how it partially contributed to her leaving
school. One may reasonably infer from the evidence, as did trial counsel, that the
appellant’s conduct dishonored the Air Force, fell below the standards expected of
Airmen, and violated the trust that the victim placed in the appellant when she agreed to
walk him back to his room. Additionally, trial counsel’s comments urging the military
judge to send the “right message” to the civilian community fairly embodies the generally
accepted sentencing philosophies, which include general and specific deterrence and
social retribution. Rule for Courts-Martial 1001(g). The lack of any objection by defense


                                             4                            ACM 38116 (recon)
counsel is some measure of the minimal impact of trial counsel’s argument. See Gilley,
56 M.J. at 123.

       Finally, while the appellant rightfully notes that trial counsel may not “unduly . . .
inflame the passions or prejudices of the court members,” the sentencing authority in this
case was a military judge, sitting alone. Clifton, 15 M.J. at 30. Even if trial counsel’s
comments were improper, military judges are presumed to know the law and to follow it
absent clear evidence to the contrary. Erickson, 65 M.J. at 225 (citing United States v.
Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)). Here, there is no evidence to rebut that
presumption, and no court member was unduly inflamed in this judge alone trial.

                             Ineffective Assistance of Counsel

        The appellant next argues his trial defense counsel was ineffective for two reasons:
(1) for failing to advise him about his options for waiver and deferment of forfeitures, and
(2) for failing to submit substantive clemency matters to the convening authority. We
disagree and find trial defense counsel was not ineffective during his post-trial
representation of the appellant. We also conclude that a fact-finding hearing is not
necessary for us to resolve this issue. United States v. Ginn, 47 M.J. 236, 244-45
(C.A.A.F. 1997).

       This Court reviews claims of ineffective assistance of counsel de novo.
United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). When reviewing such claims,
we follow the two-part test outlined by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). See United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007). Our superior court has applied this standard to military courts-martial,
noting that “[i]n order to prevail on a claim of ineffective assistance of counsel, 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
(C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687; Mazza, 67 M.J. at 474).

        The right to effective representation extends to post-trial proceedings.
United States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). Defense counsel is
responsible for post-trial tactical decisions but should act “after consultation with the
client where feasible.” United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994)
(citation omitted). Defense counsel may not “submit matters over the client’s objection.”
United States v. Hood, 47 M.J. 95, 97 (C.A.A.F. 1997).

       We need not decide if defense counsel was deficient during post-trial
representation if the second prong of Strickland regarding prejudice is not met.
United States v. Saintaude, 61 M.J. 175, 183 (C.A.A.F. 2005). Our superior court has
held that errors in post-trial representation can be tested for prejudice, which will be
found if “the appellant ‘makes some colorable showing of possible prejudice.’”


                                             5                              ACM 38116 (recon)
United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999) (quoting United States v. Wheelus,
49 M.J. 283, 289 (C.A.A.F. 1998)).

        The appellant has failed to make a colorable showing of prejudice in this case. We
instead find the appellant’s trial defense counsel provided proper post-trial representation.
First, we find trial defense counsel properly advised the appellant about his options for
deferment or waiver of forfeitures. The record shows that on 24 February 2012, the
appellant signed a form entitled “Post Trial Rights Advisement.” Among other items,
this form set forth the appellant’s rights with respect to deferment or waiver of forfeiture
of pay. Below the appellant’s signature is that of his trial defense counsel, who attested,
“The preceding document was signed by [the appellant] after being fully counseled and
advised by me of the previously noted rights.” The record also shows the appellant
answered in the affirmative when asked by the military judge if his counsel had explained
those rights to him.

        In his affidavit, trial defense counsel stated he reviewed the post-trial rights with
the appellant prior to trial. He explained to the appellant in depth the process for
deferment or waiver of forfeiture of pay, to include the appellant’s family and financial
situation. Trial defense counsel learned the appellant was married to another active duty
member of the Air Force who was receiving full pay, allowances, and benefits. Based
upon this information, trial defense counsel explained to the appellant that the convening
authority probably would not defer forfeitures for his spouse because she was already
receiving Air Force pay, he was not providing her with any financial support, they had no
children, and there was no history of financial hardship. The appellant understood and
told his counsel he could “see no justification for asking for the deferment.” According
to trial defense counsel, the appellant “voluntarily, knowingly, and intelligently waived
his right to request deferment.” We find nothing in the record to convince us otherwise.

       Further, we find trial defense counsel effectively advised the appellant regarding
clemency. In his affidavit, trial defense counsel states he explained the clemency process
to the appellant prior to the end of the court-martial and again after the appellant was
confined. The appellant did not ask his counsel to submit anything to or request anything
specific from the convening authority. According to trial defense counsel, the appellant
was inclined to waive clemency but opted to allow counsel to submit a clemency request
asking the convening authority to reduce his sentence by a couple of months.

        Trial defense counsel decided not to resubmit the sentencing package introduced
at trial to the convening authority as part of the clemency request. Based on his
experience, trial defense counsel concluded that merely resubmitting the sentencing
materials in clemency would not have been helpful and could have actually undermined
the clemency effort. He stated he took each case individually and would include
materials from the sentencing package with the clemency request only if, in his opinion,
they were “so substantial and significant that [they] warranted being resubmitted with


                                             6                              ACM 38116 (recon)
clemency.” As described in his affidavit, trial defense counsel took this approach in the
appellant’s case:

      [I]n my opinion the only items that were relevant were four character
      letters. It was a specific, reasoned, and strategic decision on my part not to
      re-submit any of these character letters, or any of the other matters in the
      sentencing package. One character letter was from a [technical sergeant]
      who ran the bay orderly program that [the appellant] was working on [sic]
      while pending trial. The [technical sergeant] knew [the appellant] in that
      capacity only and only for 2 months. Two other character letters were from
      Airmen in [the appellant’s] unit; an [airman] that knew [the appellant] for
      4 months and an [airman first class] that knew my client for about
      14 months. The final character letter was from a civilian employee that
      knew [the appellant] for about 4 months. All of these character letters were
      very “thin” in nature. . . . They added little, if anything, relevant to
      clemency, and again, these items had already been in front of the sentencing
      authority.

(emphasis added).

       Trial defense counsel states he made a “specific, reasoned, and strategic decision”
about what he chose to submit on the appellant’s behalf for clemency, he advised his
client on a course of action for clemency, and the appellant agreed with his advice. We
find no reason to question his judgment on this matter.

                                    Sentence Severity

       The appellant next avers his sentence is inappropriately severe when compared
with other closely related cases with less severe sentences. We disagree.

       This Court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offense[s], the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703,
705 (A.F. Ct. Crim. App. 2009) (citations omitted). Although we are accorded great
discretion in determining whether a particular sentence is appropriate, we are not
authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).




                                             7                            ACM 38116 (recon)
       Additionally, “[t]he Courts of Criminal Appeals are required to engage in sentence
comparison only ‘in those rare instances in which sentence appropriateness can be fairly
determined only by reference to disparate sentences adjudged in closely related cases.’”
United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States v.
Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). Sentence comparison is not required unless
this Court finds that any cited cases are “closely related” to the appellant’s case and the
sentences are “highly disparate.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F.
1999), quoted in Sothen, 54 M.J. at 296. Closely related cases include those which
pertain to “coactors involved in a common crime, servicemembers involved in a common
or parallel scheme, or some other direct nexus between the servicemembers whose
sentences are sought to be compared.” Lacy, 50 M.J. at 288. The “appellant bears the
burden of demonstrating that any cited cases are ‘closely related’ to his or her case and
that the sentences are ‘highly disparate.’ If the appellant meets that burden . . . then the
Government must show that there is a rational basis for the disparity.” Id.

       The appellant argues his sentence is too severe when compared to four other
Air Force cases where the accused were convicted of similar charges. He asserts the
accused in those cases received either (1) a lesser period of confinement for more
egregious acts than he committed, or (2) the same or slightly longer period of
confinement for crimes more serious and more numerous than his.3

       We decline the appellant’s invitation to engage in sentence comparison. We have
reviewed the cases cited by the appellant and find them unpersuasive. The facts and the
mix of charges and specifications in those cases vary significantly from the facts and
charge in the appellant’s case. The appellant has failed to show how these cases are in
any way closely related to his case. They do not involve “coactors involved in a common
crime, servicemembers involved in a common or parallel scheme, or some other direct
nexus between the servicemembers whose sentences are sought to be compared.” Lacy,
50 M.J. at 288. The only common factor among the cases is that they involve crimes
committed by other Air Force members under Article 120, UCMJ. Exercising our
discretion, we find that sentence comparison in this case is unwarranted. United States v.
Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001) (holding courts of criminal appeals have the
discretion to consider sentences in other courts-martial when reviewing a case for
sentence appropriateness and relative uniformity).

       We next consider whether the appellant’s sentence was appropriate “judged by
‘individualized consideration’ of [the appellant] ‘on the basis of the nature and
seriousness of the offense and the character of the offender.’” United States v. Snelling,
14 M.J. 267, 268 (quoting United States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A.
1959)). We have given individualized consideration to this particular appellant, the

3
 The appellant cites to the court-martial orders for United States v. Payton, ACM 37824; United States v.
Hohenstein, ACM 37965; United States v. Lara, ACM 37861; and United States v. Chambers, ACM 38044.


                                                   8                                  ACM 38116 (recon)
nature and seriousness of the offenses, the appellant’s record of service, and all other
matters contained in the record of trial. The appellant forcibly raped an 18-year-old girl
after ignoring her multiple pleas of “no” and “stop.” The victim testified to the ongoing
trauma she has suffered because of the rape. Thus, we find the approved sentence was
clearly within the discretion of the convening authority, was appropriate in this case, and
was not inappropriately severe.

                            Appellate Review Time Standards

        We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006)
(citations omitted). A presumption of unreasonable delay arises when appellate review is
not completed and a decision is not rendered within 18 months of the case being docketed
before this Court. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The
Moreno standards continue to apply as a case continues through the appellate process.
United States v. Mackie, 72 M.J. 135–36 (C.A.A.F. 2013). The Moreno standard is not
violated when each period of time used for the resolution of legal issues between this
Court and our superior court is within the 18-month standard. Id. at 136; United States v.
Roach, 69 M.J. 17, 22 (C.A.A.F. 2010).

       This case was originally docketed for appellate review on 23 April 2012 and this
Court rendered a decision on 14 August 2013, under the 18-month standard established in
Moreno. As stated supra, our superior court recently decided that one of the judges who
participated in that decision was not properly appointed. See Janssen, 73 M.J. at 222.
Accordingly, we have considered the appellant’s court-martial before a properly
constituted panel and issue this decision. The time between our superior court’s action
and this decision has not exceeded 18 months; therefore, the Moreno presumption of
unreasonable delay is not triggered. See Mackie, 72 M.J. at 136.

        Additionally, Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts
to grant sentence relief for excessive post-trial delay without the showing of actual
prejudice required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Tardif,
57 M.J. 219, 224 (C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13, 24
(C.A.A.F. 2006). In United States v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App.
2005), our Navy and Marine Court colleagues identified a “non-exhaustive” list of factors
to consider in evaluating whether Article 66(c), UCMJ, relief should be granted for
post-trial delay. Among the non-prejudicial factors are the length and reasons for the
delay; the length and complexity of the record; the offenses involved; and the evidence of
bad faith or gross negligence in the post-trial process. Id. at 607. We find there was no
bad faith or gross negligence in the post-trial processing. The reason for the delay
between 14 August 2013 and our opinion today was to allow this Court and our superior
court to fully consider a constitutional issue of first impression about whether the


                                             9                             ACM 38116 (recon)
Secretary of Defense has the authority under the Appointments Clause4 to appoint
civilian employees to the service courts of criminal appeals. We conclude that sentence
relief under Article 66, UCMJ, is not warranted.
                                          Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ. Accordingly, the approved findings and sentence are

                                          AFFIRMED.

HARNEY, Senior Judge, participated prior to retirement.



                     FOR THE COURT


                     STEVEN LUCAS
                     Clerk of the Court




4
    U.S. CONST. art II § 2, cl 2.


                                              10                         ACM 38116 (recon)
