UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class JUAN M. M. SILVA

United States Air Force

ACM S32316

2 August 2016

Sentence adjudged 19 February 2015 by SP CM convened at Travis Air Force
Base, California

. Military Judge: Matthew P. Stoffel (sitting alone)

.

Approved sentence: Bad

- conduct discharge

, confinement for 60 days,

forfeiture of $1,000 .00 pay per month for 5 months

, and reduction to E

- 1

.

Appellate Counsel for Appellant: Lieutenant Colonel Joy L. Primoli and Major Lauren A. Shure.

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

.

Before

SANTORO

, BROWN

, and SPERANZA 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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.

SANTORO , Judge:

A mil itary judge sitting as a special court

- martial convicted Appellant, pursuant to his plea s
, of violating a lawful general regulation and exceeding authorized access to a

computer system, in violation of Article s 92 and 134

, UCMJ, 10 U.S.C. §§ 892, 934

. 1 The military judge sentenced Appellant to a bad

- conduct discharge, confinement for 5 months, forfeitures of $1,000 .00 pay per month for 5 months, and reduction to E

- 1. The convening authority reduced the confinement to 60 days

, but approved the remainder of the sentence

1 The Article 134, UCMJ, 10 U.S.C. § 934

, violation assimilated 18 U.S.C. § 1030 as a crime or offense not capital.2 ACM S32316 in accordance with a pretrial agreement

. 2 Pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), Appellant asserts that his counsel was ineffective and that his sentence is inappropriately severe. W e disagree and affirm.

Background

Angered at having received non

- judicial punishment under Article 15, UCMJ, 10 U.S.C. § 815, Appellant went into his commander’s office while the commander was not

present

. He located the commander’s access credentials for the Defense Finance and Accounting Ser vice myPay website and used them to log onto the website pretending to be

the commander. Once inside the myPay website, Appellant changed the commander’s allotment to the Thrift Savings Program from 6% of base pay to 92% of base pay, which resulted in his commander’s receiving only $637.92 in base pay for two months. Additionally, Appellant changed the commander’s myPay password , accessed the commander’s electronic leave and earnings statement s , and had access to h is bank account information and Social Security number.

Additional facts nece ssary to resolve the assignment s of error are included below.

Effectiveness of Counsel

Appellant argues that his trial defense counsel was ineffective by persuading him to enter into a pretrial agreement and not explor ing potential mental health defenses. 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) )

.

To establish inef fective assistance of counsel, “ an appellant must demons trate both (1) that his counsel’ s performance was deficient, and (2) that this defici ency 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)). Under the first prong, the appellant h as the burden

to show that his “counsel’ s performance fell below an objective standard of

reasonableness

— that counsel was not functioning as counsel within the meaning o f the

Sixth Amendment.” United States v. Edmond , 63 M.J. 343, 351 (C.A.A.F. 2006) ( quoting

United States v. Davis , 60 M.J. 469, 473 (C.A.A.F. 2005)). The question is

, therefore

, “ did the level of advocacy ‘ fall[] measurably below the performance . . . [ordin arily expected] of fallible lawyers?’” United States v. Haney , 64 M.J. 101, 106 (C.A.A.F. 2006) ( quoting

United States v. Polk , 32 M.J. 150, 153 (C.M. A. 1991)) (alterations in original). Under the second prong, the deficient performance must prejudic e the accused through errors “ so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” United

2 The court

- martial order , staff judge advocate review, and action incorrectly state Appellant’s rank as Senior Airman when his rank was actually Airman First Class at the time of trial. These clerical errors d o not prejudice Appellant’s substantial rights.3 ACM S32316 States v. Tippit , 65 M.J. 69, 76 (C.A.A.F. 2007) ( quoting Strickland , 466 U.S. at 687). Counsel is presumed competent until proven otherwise. Strickland , 466 U.S. at 689.

Additionally, in the guilty plea context, “[t]o satisfy the ‘ prejudice ’ requirement, the

defendant must show that there is a reasonable pr obability that, but for counsel’ s errors, he would not have pleaded guilty and would have insisted on going to trial. ” United States v. Bradley , 71 M.J. 13, 16 (C.A.A.F. 201 2 ) ( quoting Hil l v. Lockhart , 474 U.S. 52, 59 (1985)).

“‘ 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 Culle n v. Pinholster , 563 U.S. 170, 189 (2011)). Further, Appellant must satisfy an objective inquiry : he must show had he been advised properly,

that it would have been rational for him to reject the benefits of the pretrial agreement and to plead not guilty. Id

. at 17.

In an affidavit submitted with his assignment of error, Appellant claims that he committed the offenses when he was experiencing severe symptoms of an unidentified

mental condition. 3 He asserts that his attorney told him that utilizing that information was not “a viable option” but did recommend that he speak to a “mental board” to determine

whether he could stand trial. Appellant states “using [his] mental condition as a defense was not fully explored” and asks that the “medical board . . . be reconsidered.”

We are able to resolve this assignment of error without requiring the submission of

an affidavit from trial defense couns el. See United States v. Ginn , 47 M.J. 236, 241

– 43 (C.A.A.F. 1997) ( requiring n o additional factfinding when Appellant’s affidavit fails to

support a claim). Contrary to the assignment of error drafted by counsel, Appellant does not claim he was persuaded to enter into a pretrial agreement. Absent any evidence supporting that portion of hi s claim, we conclude that he failed to meet his burden to

establish eith er Strickland prong on that issue

.

Appellant’s mental health was thoroughly considered both before and during trial. The “medical board” Appellant refers to in his affidavit was a sanity board convened pursuant to Rule for Court s

- Martial (R.C.M.) 706. T he board was composed of two psychologists supervised by a psychiatrist. In the “short report” issued pursuant to R.C.M. 706(c)(3)(A) and considered by the military judge, the board found that Appellant understood the nature and seriousness of the charges against him and was able to understand the proceedings and cooperate fully in his defense. The board also found that at the time of the offenses, Appellant did not lack substantial capacity to appreciate the criminality of his conduct or to conform his b ehavior to the requirements of the law.

At trial, the military judge discussed the board’s findings both with trial defense counsel and Appellant. The military judge twice correctly advised Appellant about the

3 The Record of T rial suggests that this was bi polar disorder, although that is not stated in Appellant’s affidavit.4 ACM S32316 defense of lack of mental responsibility. Appellant told the military judge, under oath, that he had discussed that issue and potential defense with his counsel and told the military judge that he did not want to assert that defense. Appellant further stated that when he submitted his offer for p retrial agreement, he was not s uffering from the effects of bi polar disorder and understood the meaning and effect of a guilty plea. Significantly, the military judge sua sponte recessed the court overnight so Appellant could consider the issue and

consul t with counsel. Appellant does not contest the military judge’s factual findings that nothing occurred at trial th at would contradict the presumption of Appellant’s competence.

Appellant has failed to meet his burden to establish that his counsel’s perf ormance was deficient. To the extent that Appellant belatedly challenges the conclusions of the R.C.M. 706 board, that issue was waived by his guilty plea, R.C.M. 910(j), and there is no factual assertion before us that Appellant involuntarily pled or was coerced into pleading guilty.

Sentence Appropriateness

Appellant alleges that a bad

- conduct discharge is in appropriately severe for the

offenses of which he was convicted. We review sentence appropriateness de novo. United

States v. Lane , 64 M.J. 1, 2 ( C.A.A.F. 2006); United States v. Baier , 60 M.J. 382, 383

– 8 5 ( C.A.A.F. 2005). 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 taking into account Appellant , the nature and

seriousness of his offense, his rec ord of service, and all matters in side the record of trial. 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).

While we have a great deal of discretion in determining whether a par ticular sentence is appropriate, we are not authorized to engage in exercises of clemency. United States v. Lacy , 50 M.J. 286, 288 (C.A.A.F. 1999); United States v. Healy , 26 M.J. 394,

395

– 96 (C.M.A. 1988).

The maximum authorized sentence was the jurisd ictional limit of the court

- martial: reduction in rank to the lowest enlisted grade, forfeiture of two

- thirds pay per month for 12 months, confinement for 12 months

, and a bad

- conduct discharge

. Appellant negotiated a pretrial agreement limiting confinement to 60 days and permitting a bad

- conduct discharge. The approved sentence of a confinement for 60 days and a bad

- conduct discharge was clearly within the discretion of the convening authority.

We have given individualized consideration to this Appellant, his conduct, his military career and accomplishments, and the other relevant matters within the record of

trial. Although the Defense Finance and Accounting Service was able to restore5 ACM S32316 Appell ant’s commander’s pay distribution, Appellant’s acts caused significant emotional

stress to the commander and the commander’s wife. Upwards of 40 hours of both the commander’s and his wife’s time were required to rectify the error. Credit

- and Social

Sec urity number

- monitoring services will now be required to protect against identity theft. Finally, the motive behind the crime

— retaliation for imposition of military discipline

— demonstrates significant prejudice to good order and discipline within the unit. Appellant

also has an extensive disciplinary history which includes non

- judicial punishment, a vacation of a suspended punishment , letters of reprimand, and a letter of counseling.

While we have considered his medical diagnosis and the effects of a bad

- conduct discharge on his future treatment, we nevertheless conclude that the approved sentence (and one which Appellant himself negotiated and accepted ) is not inappropriately severe.

Conclusion

The 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 sentence are AFFIRMED

.

FOR THE COURT

LAQUITTA J. SMITH Appellate Paralegal Specialist