UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

MATTHEW T. ENGLER

LANCE CORPORAL (E-3), U.S. MARINE CORPS

NMCCA 201300365

GENERAL COURT-MARTIAL

Sentence Adjudged: 20 May 2013.

Military Judge: CDR Marcus N. Fulton, JAGC, USN.

Convening Authority: Commanding General, 3d Marine 

Logistics Group, Okinawa, Japan.

Staff Judge Advocate's Recommendation: LtCol P.D. Sanchez, 

USMC.

For Appellant: Capt David Peters, USMC.

For Appellee: Maj Paul Ervasti, USMC; CDR Keith B. Lofland, 

JAGC, USN.

31 July 2014

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OPINION OF THE COURT 

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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, pursuant to his pleas, of one 

specification of unauthorized absence, two specifications of 

violating a lawful general order, two specifications of wrongful 

drug use, one specification of drug possession, and forty-three 

specifications of larceny, in violation of Articles 86, 92, 
2

112a, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 

886, 892, 912a, and 921. The military judge sentenced the 

appellant to confinement for 102 months, forfeiture of all pay 

and allowances, reduction to pay grade E-1, and a dishonorable 

discharge. The convening authority (CA) approved the sentence 

as adjudged and, except for that part of the sentence extending 

to a dishonorable discharge, ordered it executed. Pursuant to a 

pretrial agreement, the CA suspended all confinement in excess 

of 5 years.

The appellant’s assignment of error is two-fold: (1) That 

civilian defense counsel’s (CDC’s) failure to submit clemency 

matters in a timely manner denied the appellant his Sixth 

Amendment right to effective assistance of counsel and Fifth 

Amendment right to due process of law during post-trial 

processing; and (2) that the CA’s issuance of a supplemental 

action after appellate review had commenced demonstrated a 

disregard for the law and should preclude the CA from acting on 

the matter if a new action is directed. 

After carefully considering the record of trial and the 

submissions of the parties, we conclude that the findings and 

sentence are correct in law and fact and that no error 

materially prejudicial to the substantial rights of the 

appellant was committed. Arts. 59(a) and 66(c), UCMJ.

Background

At the conclusion of his court-martial, the appellant 

designated his CDC to receive both his copy of the record of 

trial and staff judge advocate’s recommendation (SJAR). In the 

23 August 2013 SJAR, the CA’s staff judge advocate (SJA) noted 

that no post-trial matters had been received from the appellant, 

despite the SJA twice contacting the CDC to remind him of his 

client’s right to submit such matters. No RULE FOR COURTS-MARTIAL

1105, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) matters or 

R.C.M. 1106(f)(4) comments were received before the CA took 

action on the case on 4 September 2013.
3

Civilian defense counsel ultimately submitted clemency 

matters on 30 October 2013.1

 By this time, the appellant’s case 

had been docketed with this court for more than a month. 

Despite this, the CA issued Supplemental General Court-Martial 

Order No. 6-2013 on 16 November 2013, in which he stated that he 

considered the additional matters but denied clemency. On 19 

December 2013, this court granted appellate defense counsel’s 

motion to append this supplemental order to the record of trial. 

Ineffective Assistance of Counsel

Where ineffective assistance of counsel is claimed, 

“questions of deficient performance and prejudice” are reviewed 

de novo. United States v. Gutierrez, 66 M.J. 329, 330-31 

(C.A.A.F. 2008) (citation omitted). This court analyzes such 

claims using the two-part test outlined in Strickland v. 

Washington, 466 U.S. 668 (1984): (1) Whether counsel’s 

performance fell below an objective standard of reasonableness, 

and (2) if so, whether, but for the deficiency, the result would 

have been different. United States v. Paxton, 64 M.J. 484, 488 

(C.A.A.F. 2007). 

Counsel is presumed to have performed in a competent, 

professional manner. To overcome this presumption, an appellant 

must show specific defects in counsel's performance that were 

“‘unreasonable under prevailing professional norms.’” United 

States v. Quick, 59 M. J. 383, 386 (C.A.A.F. 2004) (quoting 

United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001)). 

The present record contains no explanation for CDC’s failure to 

submit post-trial matters in a timely manner, leaving this Court 

to wonder what could justify the CDC’s two-month delay. 

However, “‘a court need not determine whether counsel's 

performance was deficient before examining the prejudice

suffered by the defendant. . . . If it is easier to dispose of 

an ineffectiveness claim on the ground of lack of sufficient 

prejudice, which we expect will often be so, that course should 

be followed.’” United States v. Datavs, 71 M.J. 420, 424-25 

(C.A.A.F. 2012) (quoting Strickland, 466 U.S. at 697). 

Accordingly, we turn first to the issue of prejudice.

 

1 This submission is not attached to the record of trial and neither party 

filed a Motion to Attach the document. The only mention of the 30 October 

2013 clemency request is contained in Supplemental General Court-Martial 

Order No. 6-2013 signed by the CA on 16 November 2013.
4

“[I]f counsel who has the legal responsibility to protect 

the accused’s post-trial interests is present . . . any error 

that occurs in connection with that counsel’s performance . . . 

appropriately can be tested for prejudice.” United States v. 

Hickok, 45 M.J. 142, 145 (C.A.A.F. 1996) (citations omitted). 

Had CDC submitted no clemency request at all, this court would 

be left to speculate whether any R.C.M. 1105 matters would have 

persuaded the CA to grant clemency. 

In the present case, however, we need not speculate; 

indeed, we conclusively know that the CA, after considering all 

materials provided by the CDC, would have declined to grant 

relief in clemency. While the 16 November 2013 action is a 

legal nullity, in that R.C.M. 1107(f)(2) precludes further 

action by the CA once a case is forwarded for review, this does 

not mean that the document is wholly without value. This 

purported second action, denying relief, strongly indicates what 

the CA would have done had the CDC submitted post-trial matters 

in a timely manner.

It is the appellant’s burden to prove that, but for the 

alleged deficiency in the CDC’s delinquent clemency submission, 

the results in his case would have been different. Given the 

evidence provided by the second CA’s action, the appellant has 

not met this burden.

 Precluding the CA from Further Action

Since the court is not ordering a new CA’s Action, this 

assignment of error is moot.

Conclusion

The findings and the sentence as approved by the CA are 

affirmed.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court