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

                           No. 201700186
                       _________________________

                UNITED STATES OF AMERICA
                               Appellee
                                   v.

                      SETH M. BRUMFIELD
         Air Traffic Controller Third Class (E-4), U.S. Navy
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

 Military Judge: Captain Bethany L. Payton-O’Brien, JAGC, USN.
  Convening Authority: Commander, Navy Region Southwest, San
                            Diego, CA.
 Staff Judge Advocate’s Recommendation: Captain Donald C. King,
                           JAGC, USN.
 For Appellant: Lieutenant Commander Derek C. Hampton, JAGC,
                               USN.
 For Appellee: Captain Sean M. Monks, USMC; Lieutenant Megan
                       Marinos, JAGC, USN.
                     _________________________

                      Decided 28 December 2017
                       _________________________

Before H UTCHISON , F ULTON , and S AYEGH , 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.
                     _________________________


   PER CURIAM:
   A military judge sitting as a general court-martial convicted the
appellant, consistent with his pleas, of viewing and distributing child
pornography in violation of Article 134, Uniform Code of Military Justice
                    United States v. Brumfield, No. 201700186


(UCMJ), 10 U.S.C. § 934. The military judge sentenced the appellant to 52
months’ confinement, reduction to pay grade E-1, total forfeiture of pay and
allowances, and a dishonorable discharge. The convening authority (CA)
approved the sentence and, pursuant to a pretrial agreement, suspended all
confinement in excess of 42 months.
    In a single assignment of error, the appellant avers that he was denied
the effective assistance of counsel after trial when his trial defense counsel
(TDC) requested relief beyond the CA’s clemency powers. Having carefully
considered the record of trial and the parties’ pleadings, we conclude the
findings and the sentence are correct in law and fact and find no error
materially prejudicial to the substantial rights of the appellant. Arts. 59(a)
and 66(c), UCMJ.
                                    I. BACKGROUND
    The TDC submitted a post-trial clemency request that asked the CA to
suspend the adjudged and automatic reduction to pay grade E-1 “until
appellate review is completed[,]” and to defer “automatic forfeitures . . . until
the post-trial process is complete.”1 In an addendum to his recommendation,
the CA’s staff judge advocate (SJA) advised the CA that the appellant’s
“request to defer automatic total forfeitures until the post-trial process is
complete” was outside the scope of the CA’s authority, since the “post-trial
process is not considered complete until appellate review.”2 In his action, the
CA noted that even if he were authorized to grant the requested clemency, he
“would not have exercised that authority in this case.”3
                                    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).

   1   Clemency Request of 8 Apr 2017 at 1, ¶ 2.
   2   Addendum to the SJA’s Recommendation of 2 Jun 2017 at 1, ¶ 2.
   3   CA’s Action of 2 Jun 2017.

                                           2
                    United States v. Brumfield, No. 201700186


    In evaluating claims of post-trial ineffective assistance of counsel, we give
the 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 possible prejudice,” the appellant 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).
    Turning first to the deficient performance prong of Strickland, we are not
convinced the TDC’s request to defer automatic forfeitures “until the post-
trial process is complete” was a request for clemency outside the scope of the
CA’s authority. Read in conjunction with the TDC’s other requested
clemency—suspension of adjudged and automatic reduction to E-1 “until
appellate review is completed”4—it becomes apparent that the TDC was
asking that the deferral of automatic forfeitures be for some period of time
distinct from that associated with the completion of appellate review. As the
SJA correctly notes, any deferment of automatic forfeitures ends when the
CA takes his action.5 Given the ambiguous and undefined term “post-trial
processing,” one plausible reading of the TDC’s request is that it simply asks
the CA to defer the imposition of automatic forfeiture of pay until he takes
action—a request well within the CA’s authority.6
    Regardless, in this case we need not determine whether the TDC’s
performance was deficient. “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. Here, even assuming arguendo
deficient performance, the appellant fails to demonstrate prejudice. The
appellant has not 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. Likewise, the appellant fails
to adequately describe what the CA “might have done to structure an
alternative form of clemency.” Capers, 62 M.J. at 270. Indeed, the CA stated
unequivocally in his action that even if he had the authority, he would not
grant the appellant’s requested clemency. Therefore, even if the TDC’s

   4   Clemency Request at 1, ¶ 2 (emphasis added).
   5 See RULE FOR COURTS-MARTIAL 1101(c)(6), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2016 ed.).
   6  Notably, even given this reading the appellant’s request would have been
ineffectual since it did not request that the adjudged forfeiture of all pay and
allowances be likewise deferred.

                                          3
                United States v. Brumfield, No. 201700186


performance was deficient, we conclude there is no colorable showing of
possible prejudice.
                            III. CONCLUSION
   The findings and sentence are affirmed.
                                     For the Court



                                     R.H. TROIDL
                                     Clerk of Court




                                     4
