          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                             Senior Airman SAMUEL J. WHEELER
                                     United States Air Force

                                              ACM S32266

                                           17 December 2015

         Sentence adjudged 4 September 2014 by SPCM convened at Laughlin Air
         Force Base, Texas. Military Judge: Shelly W. Schools (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 2 months,
         and reduction to E-1.

         Appellate Counsel for Appellant: Lieutenant Colonel Joy L. Primoli.

         Appellate Counsel for the United States: Major Mary Ellen Payne; Major
         Roberto Ramirez; and Gerald R. Bruce, Esquire.

                                                  Before

                             ALLRED, TELLER, and ZIMMERMAN
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



ALLRED, Chief Judge:

      At a special court-martial composed of military judge alone, Appellant was
convicted, consistent with his pleas, of wrongfully using cocaine, ecstasy, and psilocybin
mushrooms in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The court sentenced
Appellant to a bad-conduct discharge, confinement for 3 months, and reduction to E-1.
In accordance with a pretrial agreement (PTA), the convening authority approved 2
months of confinement and the remaining sentence as adjudged.
       Before us, Appellant argues: (1) his trial defense counsel provided ineffective
assistance by pressuring him to agree to a PTA, and (2) his sentence is inappropriately
severe. Finding no error prejudicial to the substantial rights of Appellant, we affirm.

                                          Background

       Sometime between 1 October 2013 and 30 November 2013, Appellant attended a
party in San Antonio, Texas. At that party, he and two other Air Force members ate
psilocybin mushrooms.

      On the evening of 14 December 2013, Appellant attended a party at the home of
an Air Force member in Del Rio, Texas. Twice that evening Appellant went into a
bedroom and snorted cocaine through a rolled dollar bill. On the first occasion,
Appellant and the service member hosting the party used cocaine together. On the
second occasion, a civilian joined Appellant and the host in snorting cocaine.

      During March 2014, Appellant used 3,4-methylenedioxymethamphetamine,
commonly known as “ecstasy” or “molly,” at a concert on South Padre Island, Texas.
Another Air Force member and a civilian used this drug with Appellant.

          Additional facts necessary to resolve the assigned errors are included below.

                               Ineffective Assistance of Counsel

       Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant
claims his trial defense counsel provided ineffective assistance by coercing him to enter
his PTA with the convening authority.

        The Sixth Amendment1 guarantees the accused the “right to the effective
assistance of counsel.”        United States v. Cronic, 466 U.S. 648, 654 (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)) (internal quotation
marks omitted). We review such claims de novo under the standards and two-prong test
set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).
United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010); United States v. Mazza, 67
M.J. 470, 474 (C.A.A.F. 2009). “In 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.” Green, 68 M.J. at 361. The
deficiency prong requires the appellant to show his counsel’s performance fell below an
objective standard of reasonableness according to the prevailing standards of the
profession. Strickland, 466 U.S. at 688. The prejudice prong requires the appellant to
show a “reasonable probability that, but for counsel’s unprofessional errors, the result of

1
    U.S. CONST. amend. VI.


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the proceeding would have been different.” Id. at 694. In doing so, the appellant “must
surmount a very high hurdle.” United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F.
1997) (citing Strickland, 466 U.S. at 689). This is because counsel is presumed
competent in the performance of his or her representational duties. United States v.
Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001).

        In the guilty plea context, the second prong of the Strickland test is modified to
focus on whether the “ineffective performance affected the outcome of the plea process.”
United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2011) (quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985)) (internal quotation marks omitted). “[T]o satisfy the ‘prejudice’
requirement, 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.” Id. (quoting Hill 474 U.S. at 59) (alteration in original) (internal quotation marks
omitted). “‘A reasonable probability is a probability sufficient to undermine confidence
in the outcome.’ That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a
different result.” Id. at 16–17 (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1403
(2011)). The appellant must satisfy an objective inquiry—“he must show that if he had
been advised properly, then it would have been rational for him not to plead guilty.” Id.
at 17.

        Appellant contends that he agreed to enter a PTA only “out of fear.” He claims
his trial defense counsel, Captain (Capt) AK, manipulated him into believing that he
could avoid “immense consequences” only by accepting a PTA. Appellant claims Capt
AK never discussed with him the possibility of fighting the charges nor any strategy for
doing so. Appellant claims that another Airman, who faced more damning government
evidence and charges similar to his own, was acquitted of all charges—implying thereby
that he too might have been found not guilty had he not entered his PTA.

        Contradicting Appellant’s claims is an affidavit from Capt AK. Capt AK agrees
that, ultimately, he did advise Appellant that a PTA would be in his best interest. Capt
AK declares, however, that he fully advised Appellant of his right to plead not guilty,
along with the potential success, risks, and benefits of litigation. Capt AK notes that he
negotiated a PTA reducing Appellant’s potential confinement from twelve months to just
two months. Capt AK states that he did not pressure Appellant. According to Capt AK,
he advised Appellant that he was willing to litigate the case. Capt AK declares that
Appellant not only entered his PTA voluntarily, but indeed strongly desired to plead
guilty, because he wanted to “do the right thing and be honest about his offenses,” and
because he especially hoped to limit potential confinement.

       Also contradicting Appellant’s claim that Capt AK coerced him to enter his PTA
is his own testimony at trial. During his providence inquiry, Appellant declared under
oath that:



                                             3                                   ACM S32266
      (1) He entered his PTA of his own free will, and no one made any attempt to force
      or coerce him to do so;

      (2) His trial defense counsel fully advised him of the nature of the charges against
      him and the possibility of defending against them, any defenses which might
      apply, and the effect of the guilty plea he offered to make;

      (3) He fully understood his defense counsel’s advice and the meaning, effect, and
      consequences of his guilty plea; and

      (4) He was satisfied with his defense counsel’s advice concerning this PTA.

       Carefully reviewing the record in this case, we do not find that Capt AK’s
performance fell below an objective standard of reasonableness according to the
prevailing standards of the profession. Finding no deficiency in the performance of trial
defense counsel, we reject this assignment of error.

                                Sentence Appropriateness

       Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant
argues that his sentence, which includes a bad-conduct discharge, is inappropriately
severe.

       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) (citing United States v. Snelling, 14 M.J. 267, 268
(C.M.A. 1982)). 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).

       Appellant argues that his career has been stellar and that his sentence “bears no
reasonable relationship to the offenses for which he was convicted.” We disagree. We
have given individualized consideration to this particular appellant, to the nature and
seriousness of the offenses, to Appellant’s record of service, and to all other matters in
the record of trial. We find the approved sentence to be correct in law and fact and
determine that, on the basis of the entire record, it should be approved.




                                             4                                  ACM S32266
                                         Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence
are AFFIRMED.




             FOR THE COURT



             LEAH M. CALAHAN
             Deputy Clerk of the Court




                                             5                                 ACM S32266
