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

                            No. 201600190
                        _________________________

                 UNITED STATES OF AMERICA
                                Appellee
                                    v.

                      MICHAEL L. GIACINTI
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

          Military Judge: Major Mark D. Sameit, USMC.
 Convening Authority: Commanding General, 3d Marine Aircraft
              Wing, MCAS Miramar, San Diego, CA.
    Staff Judge Advocate’s Recommendation: Colonel Daren K.
                         Margolin, USMC.
     For Appellant: Captain Bree A. Ermentrout, JAGC, USN.
For Appelle: Major Kelli A. O’Neal, USMC; Lieutenant Commander
                  Jeremy R. Brooks, JAGC, USN.
                     _________________________

                       Decided 31 January 2017
                       _________________________

 Before C AMPBELL , F ULTON , and G LASER -A LLEN , 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.
                     _________________________


   GLASER-ALLEN, Judge:
   A military judge sitting as a general court-martial convicted the
appellant, consistent with his pleas, of making a false official statement;
several drug offenses, including possession with intent to distribute,
                      United States v. Giacinti, No. 201600190


manufacturing with intent to distribute, incapacitation for performance of
duties through prior wrongful indulgence in drugs, introduction onto a
military installation, six wrongful use specifications, two distribution
specifications ; as well as a disorderly conduct specification, in violation of
Articles 107, 112a, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 907, 912a, and 934 (2012). The military judge sentenced the
appellant to 42 months’ confinement and a dishonorable discharge. The
convening authority (CA) approved the sentence and, pursuant to a pretrial
agreement (PTA), suspended all confinement in excess of 36 months.
    Although the case was submitted for appellate review without assignment
of error, we specified the following issue:
         Did the appellant receive the effective assistance of counsel in
         his post-trial representation where detailed defense counsel
         specifically limited the appellant’s requested clemency request
         due to a misunderstanding of the CA’s clemency powers, when
         the CA was empowered to grant much broader relief under the
         law? If not, was appellant prejudiced by this deficiency?
   Having carefully considered the record of trial and the parties’ pleadings,
we answer the specified issue in the negative, finding no prejudice. We
conclude the findings and the sentence are correct in law and fact and that no
error materially prejudicial to the substantial rights of the appellant
occurred. Arts. 59(a) and 66(c), UCMJ.
                                   I. BACKGROUND
    The National Defense Authorization Act for Fiscal Year 20141 (FY14
NDAA) substantially changed the authority of CAs to take action on findings
and sentences under Article 60, UCMJ. Regarding actions on findings after
trial, CAs can no longer, except for only the most minor offenses, dismiss any
charge or specification or change any finding of guilty to a finding of guilty to
a lesser included offense.2 Acting on sentences, CAs can no longer
“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” outside of two exceptional
circumstances—neither of which exists here.3


   1   Pub. L. No. 113-66, 127 Stat. 672 (2013).
   2   Id. at 956.
   3 Id. at 956-57. CAs retain the ability to act on adjudged punitive discharges
and/or confinement in excess of six months when such action is taken pursuant to the
terms of a PTA or following a prosecutor’s written recommendation which documents
an accused’s substantial assistance in investigating or prosecuting other cases.

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                      United States v. Giacinti, No. 201600190


   The changes to Article 60, UCMJ, became effective on 24 June 2014, and
the FY15 NDAA provided clarification for courts-martial such as this one,
which involves offenses occurring before and after that effective date:
         With respect to the findings and sentence of a court-martial
         that includes both a conviction for an offense committed before
         [24 June 2014] and a conviction for an offense committed on or
         after that effective date, the convening authority shall have the
         same authority to take action on such findings and sentence as
         was in effect on the day before such effective date[.]4
The appellant’s offenses occurred between 1 June 2014 and 30 August 2015.
    Trial defense counsel (TDC) submitted a post-trial clemency request
which asked the CA to disapprove the appellant’s automatic reduction in
rank or, alternatively, to suspend the reduction until the appellant’s
discharge. The request erroneously explained:
             Broad authority to grant clemency was until recently a tool
         available for commanders to utilize as a means of displaying
         mercy or encouraging certain positive behavior in worthy cases.
         For example, a commander could limit confinement time or
         modify the type of discharge adjudicated at nearly all courts-
         martial. However, recent changes in the law significantly
         circumscribe a commander’s authority to grant clemency in
         appropriate cases such as this one.
            Under the new law, one of the only available means of
         providing clemency in this case would be to disapprove the
         reduction of . . . rank, or alternatively, suspend the reduction
         until he is discharged from the Marine Corps.5
   The staff judge advocate’s recommendation (SJAR) correctly addressed
the appellant’s misunderstanding of the CA’s authority in this case, noting:
         While you have some discretion in acting on the guilty findings
         or sentence, you must consider the results of trial (enclosure
         (1)), this recommendation and any addendum thereto, and any
         post-trial trial matters submitted by the defense.
             Straddling Offenses Case. The accused was found guilty
         of offenses occurring both before and on or after 24 June 2014.




   4   Pub. L. No. 113-291, 128 Stat. 3292, 3365 (2014).
   5   Clemency Request, 27 Jan 2016, at 1-2, ¶ 6-7.

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                      United States v. Giacinti, No. 201600190


         Accordingly, you may take whatever action you deem
         appropriate on the guilty findings and/or on the sentence.6
    TDC neither responded to the SJAR nor requested additional clemency in
light of the SJAR’s correct guidance regarding the CA’s still-unfettered
options on the findings and sentence in this straddling offenses case. The CA
took action without granting any clemency.
                                    II. DISCUSSION
    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) (quoting United States v. Gutierrez,
66 M.J. 329, 330-31 (C.A.A.F. (2008)). 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) (quoting 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)). In demonstrating a
“colorable showing of prejudice,” appellants must provide “an adequate
description of what a properly advised convening authority might have done
to structure an alternative form of clemency.” United States v. Capers, 62
M.J. 268, 270 (C.A.A.F. 2005).
    Courts are not required, however, to determine whether counsel’s
performance was deficient before first examining whether the appellant
suffered any prejudice. Datavs, 71 M.J. at 424-25. “If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.” Strickland, 466 U.S. at 697. “Where there is error
in post-trial processing and ‘some colorable showing of possible prejudice’
thereby, this court must either provide meaningful relief or remand for new
post-trial processing.” United States v. Roller, 75 M.J. 659, 661 (N-M. Ct.
Crim. App. 2016) (quoting Wheelus, 49 M.J. at 289 (additional citation
omitted)).

   6   SJAR of 8 April 2016 at 1-2, ¶ 1, 11.

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                         United States v. Giacinti, No. 201600190


   Even assuming arguendo that TDC’s performance was deficient, given his
misstatement of the law, the appellant here fails to demonstrate a colorable
showing of possible prejudice.
    This case differs from others recently involving prejudicial error and
requiring new post-trial action. For example, in United States v. Bannister,
No. 201600056, 2016 CCA LEXIS 686, unpublished op. (N-M. Ct.
Crim, App. 30 Nov 2016), and United States v. Addison, 75 M.J. 405
(C.A.A.F. 2016), the TDC, as here, misunderstood the Article 60, UCMJ,
changes and incorrectly believed the CA had restricted clemency authority.
But in both cases, the clemency submission misstating the limits of the CA’s
authority was submitted after the SJAR. In Bannister, though the SJAR had
“correctly advised the CA that ‘action on the guilty findings or sentence is a
matter within your discretion,’” there was no SJAR addendum to inform the
CA of the TDC’s misstatements. 2016 CCA LEXIS 686 at *5-6. In
Addison, although there was an SJAR addendum, it nonetheless failed to
correct the TDC’s misstatement in the clemency request. United States v.
Addison, No. S32287, 2016 CCA LEXIS 288, at *3-5, unpublished op., (A.F.
Ct. Crim. App. 6 May 2016), rev’d, 75 M.J. 405 (C.A.A.F. 2016). Thus, in both
Bannister and Addison, the CA was left with uncorrected statements of his
post-trial authority before taking action, resulting in deficient TDC
performance or a colorable showing of possible prejudice remedied by
appellate court orders for new post-trial processing.
    Here, an accurate SJAR followed the inaccurate clemency request. It
properly advised that this is a straddling offenses case and that the CA
retained complete authority to take “whatever action [he] deemed
appropriate on the guilty findings and/or on the sentence.”7 Therefore, since it
corrected the TDC’s misstatement of the law and properly informed the CA of
his full range of clemency authority, we conclude the appellant has not made
a colorable showing of possible prejudice.8 Further, the appellant has not


   7   Id. at 1, ¶ 11.
   8  See, e.g., United States v. Garcia, No. 20160116, 2016 CCA LEXIS 714,
unpublished op. (N-M. Ct. Crim. App. 15 Dec 2016) (finding that the TDC
requested clemency outside the CA’s authority as a tactical decision to preserve the
appellant’s rights should the Article 60, UCMJ, amendments be successfully
challenged); United States v. Mitcham, No. 201600173, 2016 CCA LEXIS 675, at *4-5
unpublished op. (N-M. Ct. Crim. App. 29 Nov 2016) (per curiam) (finding no
colorable showing of possible prejudice where the CA’s action acknowledged the
discrepancy between the SJAR’s correct explanation of his limited clemency powers
and the TDC’s erroneous request for clemency outside of his authority to grant, and
the CA noted that he would not have granted the requested clemency even if he had
the authority to do so); and United States v. Bell, No. 201600066, 2016 CCA LEXIS
608, unpublished op., (N-M. Ct. Crim. App. 20 Oct 2016) (per curiam) (finding no

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                    United States v. Giacinti, No. 201600190


articulated any specific prejudice that resulted from the clemency request,
and has submitted no evidence indicating how his TDC’s clemency
submission contrasted with his wishes.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). Indeed, at the time of his action, the CA knew the TDC had
asked for suspension of the appellant’s reduction in rank, possessed the
correct advice from his SJA that he retained unfettered authority on findings
and sentence, and yet granted no clemency at all. The appellant has
submitted no evidence that the CA would have been more lenient or done
something different, had the TDC made a different or more expansive
request.10
                                III. CONCLUSION
   Accordingly, the findings and sentence are approved.
   Senior Judge CAMPBELL and Judge FULTON concur.
                                          For the Court



                                          R.H. TROIDL
                                          Clerk of Court




“colorable showing” of “possibl[e] prejudice[]” where the TDC requested clemency
outside the CA’s authority, but the appellant did not raise ineffective assistance of
counsel (citing United States v. Conrad, No. 201600142, 2016 CCA LEXIS 535, at *2-
3 unpublished op. (N-M. Ct. Crim. App. 8 Sep 2016) (per curiam))..
   9  See e.g., 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 are insufficient to
show prejudice).
   10  See United States v. Hoye, No. S31538, 2009 CCA LEXIS 122, *5-6,
unpublished op. (A. F. Ct. Crim. App. 7 Apr 2009) (per curiam) (finding that “there
has simply been no showing that absent alleged deficient conduct there is a
reasonable probability that the approved sentence would have been different,” where
the CA was “ostensibly aware” of Hoye’s desired sentence reduction, had already
separately considered the materials that Hoye would have submitted to the CA in a
clemency petition, and had already denied Hoye’s requested clemency).

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