          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                         Airman First Class PARKER J. MILLER
                                 United States Air Force

                                             ACM 38327

                                           05 March 2014

         Sentence adjudged 6 March 2013 by GCM convened at MacDill Air Force
         Base, Florida. Military Judge: Rodger J. Drew, Jr. (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 36 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant: Lieutenant Colonel Maria A. Fried.

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

                                                 Before

                                  ROAN, ORR, and HARNEY
                                   Appellate Military Judges

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

       On 5 March 2013, the appellant pled guilty before a military judge sitting as a
general court-martial to 26 drug related specifications. Specifically, the appellant pled
guilty to knowingly possessing, knowingly using, and wrongfully distributing multiple
intoxicating substances for the intended use of altering mood or function, prohibited by
Air Force Instruction 44-120, Military Drug Demand Reduction Program, ¶ 1.1.6
(3 January 2011), in violation of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934.
After merging two specifications, the military judge accepted the appellant’s guilty pleas
and found the appellant guilty. The military judge also found the appellant, contrary to
his plea, guilty of one specification of wrongful introduction of intoxicating substances
onto a military installation, in violation of Article 134, UCMJ. He sentenced the
appellant to a bad-conduct discharge, confinement for 42 months, and reduction to E-1.
The convening authority approved the findings and only so much of the sentence that
provided for a bad-conduct discharge, confinement for 36 months, and reduction to E-1.1

      The appellant raises two issues for our consideration: (1) Whether his sentence
was inappropriately severe, and (2) Whether he received ineffective assistance of
counsel.2

                                                 Sentence Severity

       The appellant asserts his approved sentence of 36 months of confinement is
inappropriately severe when compared to the cases of other Airmen convicted of similar
offenses. Specifically, he asserts that out of the over 500 Airmen then-recently convicted
of at least one drug charge in violation of Article 112a, UCMJ, 10 U.S.C. § 912a, less
than 10 Airmen received over 2 years of confinement. Additionally, he asks this Court to
consider his cooperation with the Air Force Office of Special Investigations and reduce
the amount of his confinement.

       We review sentence appropriateness de novo. United States v. Lane, 64 M.J. 1, 2
(C.A.A.F. 2006). Our determination is made in light of the character of the offender, the
nature and seriousness of the offenses, and the entire record of trial, in order to prevent a
miscarriage of justice. United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United
States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35 (C.A.A.F.
2007). 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. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988). We will not engage in sentence
comparison except in rare cases and only with closely related cases. United States v.
Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999).

      Given the nature of all the facts and circumstances of this case, we have no reason
to conclude the adjudged sentence is inappropriately severe for these offenses and this

1
  We note several mistakes in the court-martial order (CMO). First, the word “Methylethcathinone” was misspelled
in Specification 13 of Charge II. Second, the CMO incorrectly states the appellant wrongfully distributed
“substances” in Specifications 3-5 of Charge III, while the charge sheet alleges he wrongfully distributed “a
substance.” Third, the CMO fails to properly reflect the appellant’s initial plea of guilty to Charge I and its
Specification, and his subsequent withdraw of that plea. See Air Force Instruction (AFI) 51-201, Administration of
Military Justice, ¶ 10.4.4.3 (26 November 2003) (incorporating through Change 2, 10 July 2006) (“Where the
[record of trial] reflects an accused changed a plea during trial, show this in the initial order at the place provided for
pleas.”). Finally, during the appellant’s providence inquiry, the military judge merged Specifications 4 and 5 of
Charge II into one specification. At findings, the military judge found the appellant guilty of Specifications 1-4 and
6-10 of Charge II. The CMO incorrectly reflects that merger into an unnumbered “Specification,” of which findings
were never entered. Instead, the CMO should reflect Specification 5 being merged into Specification 4. We order
the promulgation of a corrected CMO. AFI 51-201, Administration of Military Justice, ¶ 10.10 (6 June 2013).
2
  The appellant raised this issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                            2                                                ACM 38327
offender. Any sentence relief under these circumstances would amount to clemency.
Healy, 26 M.J. at 396. Moreover, it would be improper for us to engage in sentence
comparison based upon a reference to over 500 courts-martial without any specific
showing of how those cases are related to the appellant’s case. We have given
individualized consideration to this particular appellant, the nature and seriousness of the
offenses, the appellant’s record of service, and all other matters contained in the record of
trial. In this case, when the appellant was convicted of a myriad of drug-related offenses,
including the use and possession of intoxicating substances and distribution of prohibited
substances to military members on multiple occasions, including on base, he clearly
deviated from the standards of conduct expected of Airmen. Given that the maximum
punishment for his crimes included confinement for 54 years, we find the approved
sentence was clearly within the discretion of the military judge and the convening
authority, was appropriate in this case, and was not inappropriately severe.

                             Ineffective Assistance of Counsel

       In his second assignment of error, the appellant contends his trial defense counsel
was ineffective because he advised the appellant to reject a pretrial agreement (PTA) that
would have resulted in a more favorable sentence than the one the military judge
adjudged. In the months prior to his court-martial, the appellant and his counsel
discussed an offer of a PTA from the Government that would limit his confinement to
18 months in exchange for a plea of guilty to the offenses. Because his approved
sentence included 36 months of confinement, he asks this Court to reassess his sentence.

       We review claims of ineffective assistance of counsel de novo. United States v.
Sales, 56 M.J. 255, 258 (C.A.A.F. 2002). Service members have a fundamental right to
the effective assistance of counsel at trial by courts-martial, United States v. Davis,
60 M.J. 469, 473 (C.A.A.F. 2005), including that assistance provided at a guilty plea.
United States v. Rose, 71 M.J. 138, 143 (C.A.A.F. 2012) (citing Missouri v. Frye,
___ U.S. ___, 132 S. Ct. 1399, 1405 (2012)). To establish ineffective assistance of
counsel, the 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 v. Washington, 466 U.S. 668, 687
(1984); United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)). The appellant must
establish the “representation amounted to incompetence under ‘prevailing professional
norms.’” Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (quoting Strickland,
466 U.S. at 690). In evaluating counsel’s performance under the first prong, we “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance” and “the performance inquiry must be whether
counsel’s assistance was reasonable considering all the circumstances.” Strickland,
466 U.S. at 689, 688.




                                             3                                    ACM 38327
        Here, the appellant and his trial defense counsel acknowledge the appellant
rejected the Government’s offer for a PTA with an 18 month confinement cap. However,
they have different, but similar versions of the rationale behind the appellant’s decision to
reject the offer.

       The appellant claims he rejected the PTA offer based upon his attorney’s advice,
which was given during several conversations about the offer. His declaration states trial
defense counsel told him the Government’s offer was “preposterous,” and he believed the
appellant would receive less than 18 months of confinement at trial. The appellant claims
he told his trial defense counsel that if the Government would not go down on the amount
of confinement, he would take what he could get. However, after his trial defense
counsel told him there was no chance of getting more than 1 year of confinement, he
agreed to not take the deal.

        In a declaration submitted pursuant to this Court’s order, trial defense counsel
described multiple conversations with the appellant about the overwhelming evidence
against the appellant and the possibility of entering into a PTA with an 18 month cap, and
advising the appellant about that PTA. He acknowledged telling the appellant that an
18 month cap was not a good deal as he thought they would do better by pleading guilty
without a PTA. He also stated he told the appellant, “although he could get more than
18 months [of] confinement, I didn’t believe it likely.” He further explained to the
appellant that the military judge might consider the guilty plea without a PTA as a
mitigating factor during sentencing. Trial defense counsel approached the Government
about a better deal, but those discussions proved unsuccessful. After considering the pros
and cons of accepting the PTA with an 18 month confinement cap, the appellant decided
to reject the offer.

       Although there are slight factual differences between the two declarations, we
need not order an evidentiary hearing because this legal issue can be resolved based on
the “appellate filings and the record.” United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997). They “compellingly demonstrate” that the appellant chose to reject the offer of a
PTA based on the advice he received from his trial defense counsel. Id.

       Although we find the appellant’s description of his trial defense counsel’s advice
generally to be accurate, there are reasonable explanations for trial defense counsel’s
advice and his level of advocacy on the appellant’s behalf was not “measurably below the
performance ordinarily expected of fallible lawyers.” United States v. Polk, 32 M.J. 150,
153 (C.M.A. 1991) (citations omitted) (alterations and internal quotation marks omitted).
Given the appellant’s vacillation and reluctance to accept a PTA that included
confinement for more than 12 months, trial defense counsel advised the appellant to plead
guilty to most of the specifications without a PTA in an effort to receive a lesser
sentence. Although this strategy proved unsuccessful, it was reasonable at the time and
under the circumstances, and was consistent with the appellant’s desires. Therefore, we


                                              4                                   ACM 38327
will not second guess this strategic decision. See United States v. Morgan, 37 M.J. 407,
410 (C.M.A. 1993). In short, the appellant’s trial defense counsel was not ineffective.

                                       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, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and sentence are

                                      AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                            5                                   ACM 38327
