          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                              Senior Airman PATRICK D. O’NEIL
                                     United States Air Force

                                              ACM S32257

                                            26 October 2015

         Sentence adjudged 8 May 2014 by SPCM convened at Robins Air Force
         Base, Georgia. Military Judge: William C. Muldoon, Jr.

         Approved Sentence: Bad-conduct discharge and reduction to E-1.

         Appellate Counsel for the Appellant: Major Anthony D. Ortiz and Brian L.
         Mizer, Esquire.

         Appellate Counsel for the United States: Major Meredith L. Steer and
         Gerald R. Bruce, Esquire.

                                                  Before

                              MITCHELL, TELLER, and BENNETT
                                  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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



BENNETT, Judge:

      At a special court-martial, Appellant was found guilty, consistent with his pleas, to
using marijuana on divers occasions and a single use of cocaine, in violation of Article
112a, UCMJ, 10 U.S.C. § 912a. A panel of officers sentenced Appellant to a bad-
conduct discharge and reduction in rank to E-1. The convening authority approved the
adjudged sentence.

      On appeal, Appellant contends that (1) he received ineffective assistance of
counsel during the post-trial processing, (2) the prosecutor committed misconduct during
his sentencing argument by making statements that he knew to be false, and (3) his
sentence to a bad-conduct discharge is inappropriately severe. Finding no error
materially prejudicial to a substantial right of Appellant occurred, we affirm.

                                                 Background

       Appellant wrongfully used marijuana at a party in November 2013 and again at a
party in December 2013. At the December party, Appellant also wrongfully used
cocaine. During his Care inquiry,1 Appellant explained that he took more than one hit
from the marijuana cigarette he smoked at the party in November. According to
Appellant, this party was on a weekend and he was selected for a random urinalysis the
following week.2

       On at least five different occasions during his sentencing argument and in rebuttal,
the assistant trial counsel made statements inferring that Appellant used marijuana a
second time even though he knew that the random urinalysis he was subject to would
yield a positive result. Based on this inference, the assistant trial counsel argued that
Appellant “thumbed his nose at the Air Force” when he used marijuana at the December
party. On one occasion when trial defense counsel objected to this argument, the military
judge overruled but instructed the members that the argument of counsel was not
evidence, rather that it was “counsel’s perspective.”

        After trial, nothing was submitted in clemency on Appellant’s behalf. This is the
basis for Appellant’s claim of ineffective assistance of counsel. In response to the
allegation of ineffective assistance of counsel, Appellant’s trial defense counsel, Captain
(Capt) JM, and defense paralegal, Technical Sergeant (TSgt) SE, prepared declarations
attesting to the efforts they made to consult with and assist Appellant during the
clemency phase.3 Appellant did not submit an affidavit to this court.

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

                                    Ineffective Assistance of Counsel

       In advance of his court-martial, Appellant told Capt JM that his greatest concern
was being sentenced to confinement. Appellant acknowledges that Capt JM presented a
strong sentencing case. On appeal, however, he argues that the convening authority
never heard the sentencing presentation, and that, even though he did not waive

1
  United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
2
  Appellant’s first urinalysis took place on Monday, 25 November 2013. However, the fact Appellant had his first
urinalysis within 24 to 72 hours of his first marijuana use was not before the members, only that he had his first
urinalysis sometime during the week following his first use.
3
  Captain JM prepared two declarations, one dated 21 November 2014 and another dated 12 December 2014. We
chose to consider only portions of these declarations.


                                                        2                                           ACM S32257
clemency, he nevertheless lost his opportunity because Capt JM failed to submit any
matters on his behalf.

       We review claims of ineffective assistance of counsel de novo. United States v.
Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). When considering these claims, we apply the
two-part test outlined in Strickland v. Washington, 466 U.S. 668, 687 (1984). 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).

       Once a sentence is adjudged by a court-martial, an accused may submit matters for
a convening authority’s consideration prior to taking action. Rule for Courts-Martial
(R.C.M.) 1105(a). Appellant in this case was advised by Capt JM about his post-trial and
appellate rights, including the right to submit clemency, and he understood his rights.

       On 8 May 2014, Appellant received a memorandum from the 78th Air Base Wing
legal office (“8 May memorandum”) advising him, among other things, that he had 10
days to submit matters in clemency from the date he received a copy of the record of trial
or the staff judge advocate’s recommendation (SJAR), whichever date was later.
Appellant acknowledged receipt of this memorandum and that he had been counseled by
his trial defense counsel concerning his right to submit clemency. The 8 May
memorandum provided Appellant the option of choosing to waive clemency or to elect to
submit matters for the convening authority’s consideration. Appellant chose not to elect
either option. On 30 June 2014, Appellant received a copy of the record of trial. On
8 July 2014, he received a copy of the SJAR advising the convening authority to approve
Appellant’s sentence as adjudged.

       After trial, Capt JM and TSgt SE had difficulty reaching Appellant to discuss his
preferences for clemency. Between 8 and 11 July 2014, they made numerous attempts to
reach him by phone and through email but received no response. Finally, on
11 July 2014, Appellant and Capt JM spoke, and Appellant indicated that he was unsure
as to whether he wanted to submit matters in clemency. Later that day, Capt JM sent
Appellant an email advising him that he had nothing to lose by submitting matters in
clemency and that he would not receive clemency unless he asked for it. Appellant and
Capt JM conferred about clemency again on 14 July 2014, and Appellant agreed to
contact Capt JM later to let him know his desires. According to Capt JM, Appellant
believed submitting matters in clemency to “be a waste of time.”

      Appellant’s claim that he did not waive his right to submit matters in clemency is
seemingly based on the fact that he neither elected to waive nor to submit matters in


                                            3                                  ACM S32257
clemency when he acknowledged receipt of the 8 May memorandum. However,
Appellant was well aware that a failure to submit matters for clemency in a timely
manner would constitute a waiver of this opportunity. See R.C.M. 1105(d)(1). There is
no requirement that an accused submit matters in clemency, and while express waiver is
an option, the Rules for Courts-Martial do not require it. See R.C.M. 1105(d)(3). There
is overwhelming evidence that Appellant knew and understood his right to submit matters
in clemency, that he consciously chose not to submit such matters, and that he
comprehended the consequences of his decision.

       Persons convicted by courts-martial retain the right to effective representation
during 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).
“Counsel’s duty is to advise, but the final decision as to what, if anything, to submit [in
clemency] rests with the accused.” United States v. Lewis, 42 M.J. 1, 4 (C.A.A.F. 1995).

       The decision to submit matters in clemency belongs to the accused, not counsel.
Trial defense counsel must assist the accused during the post-trial phase. However, there
is no obligation for counsel to submit matters absent their client’s permission to do so,
and counsel is foreclosed from submitting matters over their client’s objection. In this
case, Appellant evinced a desire not to submit matters in clemency despite the
exhortations of his attorney. Capt JM knew that his client’s primary goal was to avoid
confinement, a goal that had been achieved. Appellant never provided Captain JM
matters to submit in clemency or authority to submit matters on his behalf. Under these
circumstances, there was nothing deficient about Capt JM’s performance. Since
Appellant has not met the first prong of the Strickland test, there is no need to determine
whether Appellant was prejudiced by the failure to submit matters in clemency.

                                 Prosecutorial Misconduct

       Appellant avers that assistant trial counsel, both through his use of a demonstrative
aid and during his sentencing argument, deliberately presented false and misleading
information to the panel. The demonstrative aid at issue is a PowerPoint slide that
displays a timeline. On appeal, Appellant objects to the slide because it lists the dates on
which he was subject to two urinalysis tests and the dates when the results of those tests
were reported to his chain of command, but does not show when Appellant was made
aware of the test results. Appellant argues that this slide is misleading because it implies,
without any factual basis, that Appellant knew he had been caught when he used
marijuana a second time and also cocaine.




                                              4                                  ACM S32257
       In addition, Appellant argues that assistant trial counsel deliberately misled the
members when he repeatedly argued that Appellant knew he would test positive for
marijuana and used it a second time regardless, or words to that effect. At trial, defense
counsel twice objected to this argument asserting that it was a misstatement of the
evidence. Those objections were overruled. However, the military judge instructed the
panel members that the argument of counsel was not evidence and that they were to make
up their own minds about the evidence in this case.

       At trial, the parties stipulated that Appellant wrongfully used marijuana on divers
occasions between 4 November 2013 and 17 December 2013, but that he was not notified
of the positive results of his first urinalysis until on or about 17 December 2013. 4 Prior to
making its sentencing argument, the Government introduced a recording of the colloquy
that took place between Appellant and the military judge during the Care inquiry. Thus,
based on Appellant’s own description of his marijuana use, the fact that his first use of
marijuana happened within a week of his first urinalysis was before the members, as was
the fact that he inhaled marijuana multiple times on that occasion.

       Because there was no objection at trial to the display of the demonstrative aid, we
review this issue under a plain error analysis. See United States v. Cary, 62 M.J. 277,
278 (C.A.A.F. 2006). Therefore, Appellant must show (1) that error occurred; (2) that it
was plain, clear, or obvious; and (3) that it materially prejudiced a substantial right.
United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008). Even though the
demonstrative aid is not evidence, merely an aid used by the assistant trial counsel during
his sentencing presentation, the analysis is the same. See United States v. Palazzo, 372
Fed. Appx. 445, 452–453 (5th Cir. 2010); United States v. Diaz, ACM 33125, slip. op. at
7 (A.F. Ct. Crim. App. 15 September 2000) (failing to object to the members’
impermissible viewing of a demonstrative aid resulted in a review for plain error).

       None of the information contained in the slide at issue is false or misleading.
Thus, the military judge committed no error in permitting assistant trial counsel to use
this exhibit and refer to it during his sentencing argument. Because there was no error,
plain or otherwise, there is no need for us to determine whether a substantial right of
Appellant was materially prejudiced.

       Whether argument is improper is a question of law we review de novo. United
States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (citing United States v. Pope, 69 M.J.
328, 334 (C.A.A.F. 2011)).

                 Any aggravating circumstances “directly relating to or
                 resulting from the offenses of which the accused has been
4
 On 17 December 2013, as a result of the initial positive urinalysis and in accordance with his wing’s re-inspection
policy, Appellant was required to submit to a second urinalysis. Appellant tested positive for marijuana, above the
Department of Defense cut-off, both times.


                                                         5                                            ACM S32257
              found guilty” can constitute aggravation evidence. R.C.M.
              1001(b)(4). In arguing that such circumstances exist and
              should be considered by the sentencing authority in
              aggravation, a trial counsel is constrained by the well-
              established principle that they “may strike hard blows,” but
              they are “not at liberty to strike foul ones.” Berger v. United
              States, 295 U.S. 78, 88 (1935); United States v. Toro, 37 M.J.
              313, 318 (C.M.A. 1993); United States v. Doctor, 21 C.M.R.
              252, 259 (C.M.A. 1956). Thus, trial counsel is limited to the
              evidence of record and “such fair inferences as may be drawn
              therefrom.” United States v. White, 36 M.J. 306, 308 (C.M.A.
              1993) (quoting United States v. Nelson, 1 M.J. 235, 239–40,
              (C.M.A. 1975)). See also United States v. Johnson, 31
              C.M.R. 188 (C.M.A. 1962).

United States v. Bobby, 61 M.J. 750, 755 (A.F. Ct. Crim. App. 2005).

       Regardless of when Appellant was actually made aware of his positive test results,
the Government introduced enough evidence to reasonably infer that Appellant knew he
would test positive for marijuana use at his first urinalysis. Based on the evidence before
the members, it was fair for the trial counsel to argue that Appellant wrongfully used
marijuana a second time (and cocaine) even though he knew he had been caught after his
prior use of marijuana.

       Moreover, the military judge provided an adequate instruction. Our superior court
has held that when a trial counsel makes an improper argument the appropriate remedy
frequently is a curative instruction. See United States v. Jenkins, 54 M.J. 12, 20
(C.A.A.F. 2000) (“Court members are presumed to follow the military judge’s
instructions . . . . [A]n improper argument can often be cured by an appropriate limiting
instruction.” (citation omitted)). The military judge’s instruction served as an appropriate
reminder that the members should be the ultimate deciders of the facts in this case. See
United States v. Clifton, 15 M.J. 26, 29–30 (C.M.A. 1983) (“It is axiomatic that a court-
martial must render its verdict solely on the basis of the evidence presented at trial. A
corollary to this principle is, as the judge instructed, that counsel’s arguments are not
evidence.” (citation omitted)). Even though we find that the assistant trial counsel did not
make an improper argument, any confusion caused by his argument would have been
resolved by the military judge’s instruction.

                                     Sentence Severity

       Finally, Appellant asserts that his sentence was too severe. 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,


                                             6                                   ACM S32257
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
offenses, the appellant’s record of service, and all matters contained in the record of
trial.” United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006); see also
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982).

       We have considered this particular appellant, the nature and seriousness of his
offense, his record of service, all matters contained in the record of trial, and his
arguments on appeal. We note, in particular, that Appellant could have received up to a
year in confinement, but, consistent with his wishes and his trial defense counsel’s
argument, was spared from having to spend any time in jail. We find Appellant’s
approved sentence is appropriate.

                                                    Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred.5 Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



                    FOR THE COURT


                    STEVEN LUCAS
                    Clerk of the Court




5
    The court-martial order (CMO) does not include pleas or findings for Specification 2. We order a corrected CMO.


                                                          7                                           ACM S32257
