### UNITED STATES NAVY

- MARINE CORPS
COURT OF CRIMINAL APPEALS WASHINGTON, D.C.

Before R.Q. WARD, J. R. MCFARLANE, K.M. MCDONALD Appellate Military Judges

UNITED STATES OF AMERICA

v.

FRANCIS L. CAPTAIN SERGEANT (E

- 5), U.S. MARINE CORPS

NMCCA 201 300137
GENERAL COURT

- MARTIAL

**Sentence Adjudged:** 11 January 2013

. **Military Judge:** CDR John Maksym, JAGC, USN

. **Convening Authority:** Commanding General

, 3d Marine Logistics Group

, Okinawa, Japan

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

USMC

. **For Appellant:** LT Carrie Theis, JAGC, USN. **For Appellee:** Capt Cory Carver, USMC

.

**2 9**  **July 2014**

**--------------------------------------------------- OPINION OF THE COURT** 

**---------------------------------------------------**

THIS OPINION DOES NO T 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 specificat ion of abusive sexual contact in violation of Article 120, Uniform Code of Military Justice. 1 The military judge sentenced the appellant to confinement for 5 years and 6 months,

1 10 U.S.C. § 920.2 reduction to pay grade E

- 1, forfeiture of all pay and allowances, a $50,000 .0 0 fine, and a dishonorable discharge. The convening authority disapproved the fine and approved the remaining sentence. In accordance with a pretrial agreement, the convening authority suspended all confinement in excess of 4

years

.

The appellant ra ises two assignments of error. First, he claims that trial defense counsel provided ineffective assistance by failing to offer evidence in extenuation and mitigation in sentencing. Second, he claims that trial defense counsel provided ineffective assista nce by conceding the appropriateness of a dishonorable discharge without the appellant’s consent. As both assignments of error address whether trial defense counsel was ineffective during sentencing, we analyze them together.

We have reviewed the record of trial, the parties’ pleadings, the appellant’s affidavit, trial defense counsel’s
declaration , and the record of the DuBay 2 hearing that we ordered. We conclude that the findings and sentence are correct
in law and fact and that no error was committed that was materially prejudicial to the substantial rights of the appellant. 3 Specifically, we find that the appellant failed to meet his burden of showing that trial defense counsel provided
ineffective assistance during the sentencing phase of the appell ant’s court

- martial.

**Background**

The a ppellant pleaded guilty at a general court

- martial to
abusive s exual contact pursuant to a pre trial agreement. In exchange for the appellant’s pleas, the convening authority agreed to dismiss additional charges o f sexual assault and suspend all confinement in excess of 48 months.

At sentencing, the Government offered the testimony of the
victim and recommended a sentence of confinement for five years, reduction to E

- 1, total forfeitures, and a dishonorable
discha rge. 4 Trial defense counsel offered only the unsworn statement of the appellant and recommended a sentence of
confinement for two years, reduction to E

- 1, and a dishonorable

2 United States v. D uBay , 37 C.M.R. 411 (C.M.A 1967).

3 Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. § § 859(a) and 866(c).

4 Record at 75.3 discharge. 5 The maximum punishment allowable was confinement for

seven years, fo rfeiture of all pay and allowances, reduction to

E

- 1, a fine, and a dishonorable discharge.

In a post

- trial affidavit, the appellant alleges that trial
defense counsel was ineffective for two reasons: (1) he failed

to call character witnesses or offer d ocumentary evidence of the appellant’s military service in extenuation and mitigation ; and ( 2) he argued for a dishonorable discharge without the appellant’s consent. W e concluded that we could not resolve
either claim without further fact

- finding and ord ered a DuBay hearing. The DuBay hearing record was authenticated and returned to this Court with the military judge’s findings of
fact and conclusions of law.

**Discussion**

A military judge’s DuBay findings of fact on an issue of
ineffective assistance of counsel are reviewed under a clearly
erroneous standard while conclusions of law and the question of prejudice are reviewed de novo

. 6 Finding no clear error, we accept the DuBay judge’s findings of fact and adopt them as our

own. 7

The Sixth Amendment to the U.S. Constitution guarantees an accused’s right to effective assistance of counsel. We analyze
claims of ineffective assistance of counsel under the test
enunciated by the Supreme Court in Strickland v. Washington

. 8
Thus, 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.” 9 We review both part s of the
Strickland test de novo

. 10

5 Id. at 78.

6 United States v. Anderson , 55 M.J. 198, 201 (C.A.A.F. 2004).

7 We note that the appellant did not object to the same judge presiding at the
DuBay hearing as his court

- martial, despite being given the opportunity to do

so. Record of DuBay Hearing at 9

- 10 and 118

- 122.

8 466 U.S. 668 (1984)

.

9 United States v. Green , 68 M.J. 360, 361

- 62 (C.A.A.F. 2010) (citing
Strickland , 466 U.S. at 687 ) (additional citation omitted)

.

10 United States v. Gutierrez , 66 M.J. 329, 330

- 31 (C.A.A.F. 2008).4 For the first part of th e Strickland test, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance

. . . . ” 11 The appellant “bears the burden of establishing the truth of the factual allegations that would pro vide the basis for finding deficient performance.” 12 At the sentencing phase, trial defense counsel may be ineffective “ when counsel either fails to investigate adequately the possibility of evidence that would be of value to the accused in presenting a ca se in extenuation and mitigation or, having discovered such evidence, neglects to
introduce that evidence before the court

- martial.” 13

Here, after adequate investigation into the matter, trial defense counsel made a tactical decision not to call any of th e potential character witnesses that the appellant suggested. 14
The tactical reasoning behind this decision was to avoid opening the door to potentially damaging evidence that the Government could offer in rebuttal. This tactical reasoning was reasonable and, a s such, we agree with the conclusion of the DuBay judge
that trial defense counsel was not deficient in failing to call sentencing witnesses.

T rial defense counsel also decided not to offer any military records documenting the appellant’s combat dep loyments. Trial defense counsel again expressed concern that offering such evidence would do more harm than good by opening the door for rebuttal by the Government. With the benefit of hindsight, this tactical reasoning is questionable since it is unlike ly that the Government could have effectively rebutted official military documentation of the appellant’s deployment history

. However

, while the trial defense counsel’s tactical reasons may have been questionable, based on the record before us we cannot s ay that

t he decision was outside “ the wide range of reasonable professional assistance.” 15 The right to effective assistance of counsel does not entitle an accused to perfect assistance of

11 466 U.S. at 689.

12 United States v. Tippit , 65 M.J. 69, 76 (C.A.A.F. 2007) (citation omitted).

13 United States v. Alves , 53 M.J. 286 , 2 89 (C.A.A.F. 2000) (quoting United

States v. Boone , 49 M.J. 187, 196 (C.A.A.F. 1998)) (internal quotation marks omitted).

14 Record of Du B ay Hearing at 127

- 30.

15 Strickland

, 466 U.S. at 689.5 counsel. A mere disagreement over trial tactics does not rise

to t he level of a Sixth Amendment violation. 16

Finally

, the appellant claims that trial defense counsel provided ineffective assistance of counsel by conceding the appropriateness of a dishonorable discharge without his client’s

consent. It is well

- establish ed that an accused may request a punitive discharge in lieu of confinement , or to mitigate the length of confinement. Thus, a defense counsel is permitted to advocate on behalf of his client for such punishment. However,
“when defense counsel does seek a punitive discharge

. . . - even as a tactical step to accomplish mitigation of other elements of a possible sentence

- counsel must make a record that such advocacy is pursuant to the accused’s wishes.” 17 In short, the law requires that there be “an adequa te record of appellant’s desire that a punitive discharge be actually imposed.” 18

Here, t rial defense counsel admitted in his post

- trial
declaration that he failed to make an adequate record of the fact that the appellant had consented to his arguing for a dishonorable discharge. But he maintained in his declaration and in his testimony at the DuBay hearing that he had fully discussed the matter with the appellant before trial, and that the appellant had agreed with the tactic of requesting a
dishonorable discharge in the hope of receiving less
confinement. 19 Trial defense counsel testified at the Du B ay hearing that the appellant’s overriding concern was “to serve
the least amount of confinement that he could serve.” 20 At the

Du B ay hearing the appellant ag reed that he told his trial
defense counsel that he wanted to avoid incarceration. The military judge found trial defense counsel credible on this point. 21 We agree and conclude that despite counsel’s failure to

16 We note that the military judge was aware of the appellant’s combat deployments, and took them into account during sentencing. DuBay Hearing Findings of Fact and Conclusions of Law at 13

- 14

.

17 United States v. Dresen , 40 M.J. 462, 465 (C.M.A. 1994) (citations omitted).

18 United States v. Pineda , 54 M.J. 298, 301 ( C.A.A.F. 2001) (citation omitted)

.

19 DuBay Hearing Findings of Fact and Conclusions of Law at 1 1 and Record of

Du B ay Hearing at 124.

20 Record of Du B ay Hearing at 124.

21 DuBay Hearing Findings of Fact and Conclusions of Law at 14.6 memorialize a record of this understanding, we find no deficient performance that implicate d the appellant’s Sixth Amendment right to counsel.

Having determined that the appellant did not meet his burden to show that trial defense counsel’s performance was
deficient within the meaning of Stricklan d , we do not reach the second part of the Strickland analysis.

**Conclusion**

We affirm the findings and sentence as approved by the convening authority.

For the Court

R.H. TROIDL
Clerk of Court