                UNITED STATES AIR FORCE
               COURT OF CRIMINAL APPEALS
                         ________________________

                             No. ACM 38949
                         ________________________

                            UNITED STATES
                                Appellee
                                     v.
                        Nathaniel L. PENALOSA
            Air Force Academy Cadet, U.S. Air Force, Appellant
                         ________________________

          Appeal from the United States Air Force Trial Judiciary
                           Decided 27 June 2017
                         ________________________

Military Judge: Shelly W. Schools.
Approved sentence: Dismissal and confinement for 36 months. Sentence ad-
judged 3 November 2015 by GCM convened at the United States Air Force
Academy, Colorado.
For Appellant: Major Johnathan D. Legg, USAF.
For Appellee: Major J. Ronald Steelman III, USAF; Captain Matthew L. Tus-
ing, USAF; Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Chief Judge DREW
and Senior Judge J. BROWN joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________

MINK, Judge:
   A general court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with his pleas and in accordance with a pretrial
agreement (PTA), of divers wrongful use, distribution, introduction, and man-
ufacture of 3,4 methylenedioxy-methamphetamine (MDMA); divers wrongful
                     United States v. Penalosa, No. ACM 38949


use, distribution, and introduction of Modafinil; divers wrongful distribution
and introduction of lysergic acid diethylamide (LSD); and wrongful use of LSD,
each in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 912a. The adjudged sentence included a dismissal, confinement for
42 months, and forfeiture of all pay and allowances. The convening authority
approved the dismissal and, in compliance with the terms of the PTA, 36
months of confinement. 1
     Appellant raises three issues on appeal: (1) whether the finding of guilt to
Specification 2 of the Charge must be set aside because it was entered by ex-
ceptions, removing the charged language “on divers occasions,” and the record
fails to specify the particular instance of conduct upon which the modified find-
ing is based; (2) whether Appellant’s trial defense counsel were ineffective
when they advised Appellant to enter into a PTA to plead guilty rather than
litigate a motion to suppress evidence obtained after Appellant invoked his
right to counsel; and (3) whether Appellant’s trial defense counsel were inef-
fective when they advised Appellant to enter into a PTA to plead guilty rather
than litigate a motion for appropriate relief for alleged violations of Article 13,
UCMJ, 10 U.S.C. § 813. 2 Finding no relief is warranted, we affirm the findings
and sentence as approved by the convening authority.

                                I. BACKGROUND
    All of the offenses for which Appellant was found guilty took place between
on or about 1 August 2014 and on or about 30 November 2014, while Appellant
was a cadet at the United States Air Force Academy. On multiple occasions
during that period, Appellant used MDMA, a Schedule I controlled substance;
introduced it onto the Air Force Academy; and distributed it to two other Air
Force Academy cadets and a civilian woman. Appellant also manufactured a
pill form of MDMA on multiple occasions by placing the powdered form of the
drug into capsules. Appellant, again on multiple occasions during that period,
used Modafinil, a Schedule IV controlled substance; introduced it onto the Air
Force Academy; and distributed it to three other Air Force Academy cadets. In
addition, on multiple occasions, Appellant introduced LSD, a Schedule I con-
trolled substance, onto the Air Force Academy and distributed it to three other
Air Force Academy cadets. Appellant also used LSD on one occasion during
this time period.


1 Even though the convening authority did not approve the adjudged forfeiture of all
pay and allowances, the pretrial agreement placed no limitation on the convening au-
thority’s power to do so.
2Appellant’s second and third assignments of error were raised pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


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                       United States v. Penalosa, No. ACM 38949


                                    II. DISCUSSION
A. Ambiguous Verdict
      As charged, Specification 2 of the Charge alleged that Appellant wrongfully
used LSD “on divers occasions between on or about 1 August 2014 and on or
about 30 November 2014.” At trial, Appellant pleaded guilty to this specifica-
tion except for the charged language, “on divers occasions,” to which Appellant
pleaded not guilty. During the providence inquiry, 3 Appellant admitted to only
one use during the charged time frame. A stipulation of fact introduced into
evidence discussed the single use of LSD by Appellant to which he pleaded
guilty. According to the stipulation of fact, Appellant’s single use of LSD oc-
curred “[d]uring or after ‘Parent’s Weekend,’ which started on 30 August 2014
. . . [a]fter returning from a football game” at which time, Appellant and two
other Air Force Academy cadets used LSD. The Government did not attempt
to prove the excepted language. The military judge, after conducting the prov-
idence inquiry and reviewing the evidence introduced at trial, found Appellant
guilty of a single use of LSD during the charged timeframe. In accordance with
his plea, the military judge found Appellant not guilty of the excepted words,
“on divers occasions.”
   Relying on United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), Appellant
asserts that the finding of guilty as to Specification 2, eliminating the words
“on divers occasions,” created an ambiguity in the verdict since the military
judge did not specify the particular incident of LSD use for which he found
Appellant guilty. We disagree.
    Appellant misunderstands the application of Walters and its progeny. Con-
trary to Appellant’s assertion, there is no ambiguity in the finding of guilty nor
is there any question as to which specific instance of LSD the military judge
used to find Appellant guilty. An ambiguity only arises when “the record does
not indicate which of the alleged incidents forms the basis of the conviction.”
United States v. Ross, 68 M.J. 415, 417 (C.A.A.F. 2010). Despite the charged
language including the words “on divers occasions,” Appellant himself pleaded
guilty to only a single use of LSD and provided the factual basis to establish
his guilt to that single use both during the providence inquiry and in the stip-
ulation of fact. In each of the cases cited by Appellant in support of his argu-
ment, the fact-finder was presented evidence of at least two possible instances
of misconduct. No evidence of another alleged use of LSD by Appellant was
presented during his court-martial. Based on a review of the record in Appel-
lant’s case, there is no question as to what single instance of criminal conduct
formed the basis for the military judge’s finding of guilty as to Specification 2
of the Charge. We therefore reject this allegation of error.

3   United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).


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                     United States v. Penalosa, No. ACM 38949


B. Ineffective Assistance of Counsel
    In his last two assignments of error, Appellant asserts that trial defense
counsel provided him ineffective assistance of counsel by advising him to enter
into a PTA to plead guilty rather than litigating a motion to suppress evidence
and litigating a motion for appropriate relief for alleged violations of Article
13, UCMJ. Appellant submitted two declarations wherein he addresses these
two issues. In one declaration, Appellant claims that had he known about the
possibility of suppressing his cell phone text messages, he “would have insisted
on going to trial.” In the second declaration, Appellant described what he be-
lieves constituted illegal pretrial punishment. We ordered his trial defense
counsel, Captain (Capt) JL and Mr. FS, to submit affidavits in response to Ap-
pellant’s assertions. 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)).
     To establish ineffective assistance of counsel, Appellant “must demonstrate
both (1) that his counsel’s performance was deficient, and (2) that this defi-
ciency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F.
2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Under the
first prong, Appellant has the burden to show that his “counsel’s performance
fell below an objective standard of reasonableness—that counsel was not func-
tioning as counsel within the meaning of the Sixth Amendment.” United States
v. Edmond, 63 M.J. 343, 351 (C.A.A.F. 2006) (quoting United States v. Davis,
60 M.J. 469, 473 (C.A.A.F. 2005)). The question is, therefore, “did the level of
advocacy ‘fall[ ] measurably below the performance . . . [ordinarily expected] of
fallible lawyers?’” United States v. Haney, 64 M.J. 101, 106 (C.A.A.F. 2006)
(quoting United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)) (alterations in
original). Under the second prong, the deficient performance must prejudice
the accused through errors “so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007) (quoting Strickland, 466 U.S. at 687). Counsel is presumed
competent until proven otherwise. Strickland, 466 U.S. at 689.
    Additionally, in the guilty plea context, “[t]o satisfy the ‘prejudice’ require-
ment, the defendant must show that there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012) (quot-
ing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ That re-
quires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.”
Id. at 16–17 (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)). Further,
Appellant must satisfy an objective inquiry: he must show that had he been



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                    United States v. Penalosa, No. ACM 38949


advised properly, it would have been rational for him to reject the benefits of
the pretrial agreement and to plead not guilty. Id. at 17.
   1. Motion to Suppress
    Appellant first claims his counsel were ineffective by advising him to enter
into a PTA rather than litigating a motion to suppress text messages from his
cell phone and the evidence derived from those messages. Appellant speculates
that if the motion to suppress had been successful, he “would [have] at the very
least been given a shorter sentence than [he] actually received.”
    In her affidavit, Capt JL stated that she and Mr. FS, Appellant’s civilian
trial defense counsel, advised Appellant of the potential motions that could be
raised in his case, including the motion to suppress the text messages from
Appellant’s cell phone. Capt JL stated that she and Mr. FS advised Appellant
that even if the motion were successful, it “would not be case dispositive for
him because the government still had independent and substantial incriminat-
ing evidence against him that was likely to result in multiple convictions.” Capt
JL also noted that the negotiated PTA offered Appellant substantial benefit,
reducing the maximum possible confinement in Appellant’s case from 100
years to 3 years, in addition to deferring any adjudged confinement for approx-
imately one month so that Appellant could visit and attend to his mother’s
well-being prior to entering confinement. Capt JL stated that she and Mr. FS
advised Appellant to enter into the PTA because they believed it was in his
best interest to do so.
   In his affidavit, Mr. FS stated:
       Even if we suppressed some of the evidence, the government’s
       case was very strong with respect to the allegations that were
       based on the evidence found in his room and from other inde-
       pendent sources. In other words, Cadet Penalosa was told that
       he was at risk of being convicted of numerous drug offenses and
       would be facing a sentencing hearing.
       I am always careful to make it clear to my clients that they
       should not enter into a PTA unless they are doing so voluntarily
       and believe it is in their best interests to do so. With Cadet
       Penalosa specifically I felt he understood his options, including
       the benefits of being able to defer execution of any sentence to
       confinement until after Thanksgiving. It was my impression
       that the ability to help his mother after trial was a significant if
       not overriding factor that convinced him to enter the PTA.
    It is clear from Appellant’s declaration that he discussed the issue of the
seizure of the text messages from his cell phone with his trial defense counsel
prior to entering into the PTA, though Appellant now asserts he agreed to the


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                    United States v. Penalosa, No. ACM 38949


PTA because he was advised there were no defenses in his case and that “he
would have insisted on going to trial” if he had known about the possibility of
suppressing his cell phone text messages and any derivative evidence. Trial
defense counsel’s affidavits make it equally clear that they advised Appellant
of the litigation risks involved with raising such a motion and pleading not
guilty if he chose to reject the negotiated PTA, given the other evidence avail-
able in his case.
    We find it unnecessary to resolve the factual discrepancy between Appel-
lant and trial defense counsel’s assertions regarding their discussions as to the
potential of suppressing the text messages and any derivative evidence. First,
an appellant who premises a claim of ineffective assistance of counsel on the
failure to make a motion must show that there is a reasonable probability that
he would have prevailed on the motion. United States v. Jameson, 65 M.J. 160,
163–164 (C.A.A.F. 2007). We are not persuaded that there was a reasonable
probability that the suppression motion here would have succeeded. Second,
even if it had succeeded, we are not persuaded that the outcome of the trial or
the decision to plead guilty would have been different. Based on the record
before this court, it is undisputed that in light of other evidence in the case
even a successful suppression motion would not have been case dispositive.
Consequently, even assuming arguendo that trial defense counsel never dis-
cussed a non-case dispositive, potential suppression motion with Appellant,
Appellant has failed to demonstrate either deficient performance or prejudice.
   2. Article 13, UCMJ
   Appellant next contends that his trial defense counsel provided ineffective
assistance of counsel by advising him to enter into a PTA rather than litigating
a motion for alleged pretrial punishment in violation of Article 13, UCMJ.
    In her affidavit, Capt JL details the extensive steps she took to investigate
any alleged pretrial punishment of the Appellant, including information re-
ceived during pretrial discovery practice. Capt JL stated that based on her in-
vestigation, she did not believe “there was any evidence to support an intent to
punish [Appellant] prior to trial,” that there was a no “reasonable probability
of success” if they were to file such a motion, and that if such a motion were
filed and it was successful, any potential remedy would not have been nearly
as great as the benefit Appellant would receive from the favorable terms of
Appellant’s PTA.
    Again, it is Appellant’s burden to demonstrate the reasonable probability
that an Article 13 motion would have succeeded, and again, we are not per-
suaded. Second, even though Appellant’s declaration outlines the events that
he now asserts evidences an intent to punish or stigmatize him, when asked
by the military judge during the presentencing portion of the court-martial,
Appellant denied he had been punished in any way prior to trial that would

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                    United States v. Penalosa, No. ACM 38949


constitute illegal pretrial punishment under Article 13, UCMJ. Appellant thus
“contradicts a matter that is within the record of a guilty plea” yet does not
“set[ ] forth facts that would rationally explain why he would have made such
statements at trial but not upon appeal.” United States v. Ginn, 47 M.J. 236,
248 (C.A.A.F. 1997). For both reasons, Appellant’s claim of ineffective assis-
tance fails.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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