UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman CLINTON T. PICKERING

United States Air Force

ACM 38248

15 May 2014

Sentence adjudged 8 November 2012 by GCM convened at Ellsworth Air 

Force Base, South Dakota. Military Judge: Rodger A. Drew.

Approved Sentence: Bad-conduct discharge, confinement for 6 months, 

forfeiture of all pay and allowances, and reduction to E-1.

Appellate Counsel for the Appellant: Captain Christopher D. James.

Appellate Counsel for the United States: Gerald R. Bruce, Esquire;

Lieutenant Colonel C. Taylor Smith; Major Daniel J. Breen; and 

Captain Matthew J. Neil.

Before

HECKER, MITCHELL, and WEBER

Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before final release.

HECKER, Judge:

A general court-martial composed of officer members convicted the appellant, 

contrary to his pleas, of aggravated sexual assault, in violation of Article 120, UCMJ, 

10 U.S.C. § 920. The members sentenced him to a bad-conduct discharge, confinement 

for 6 months, forfeiture of all pay and allowances, and reduction to E-1. The convening 

authority approved the sentence as adjudged.

The appellant raises two issues on appeal: (1) whether his trial defense counsel 

were ineffective when they allowed him to concede his guilt during his unsworn 
2 ACM 38248

statement; and (2) whether the military judge erred by failing to give a defense-requested 

instruction on sex offender registration.

1

 Finding no error that materially prejudices a 

substantial right of the appellant, we affirm.

Ineffective Assistance of Counsel

Following a litigated trial, the appellant was convicted of digitally penetrating a 

female airman while she was substantially incapable of declining participating in that

sexual act. The appellant argues his trial defense counsel were ineffective by allowing 

him to concede guilt in his unsworn statement. In that statement, the appellant said:

Members, I stand before you filled with shame and humiliation. I 

am so sorry that I hurt my friend [the victim]. I thought the world of her 

and I still do. Her friendship meant more to me than I can possibly tell you.

. . . .

. . . [O]ne night, for reasons that I still can’t understand, I let myself 

touch her inappropriately. Though my motivation was mainly curiosity, I 

know that I was violating the boundaries of our relationship, and she has 

every right to be mad at me. When we talked about what I had done, I said 

that I was sorry. In my heart, I hope that she could forgive me, and I could 

make up for what I have done by being a good friend and respecting her 

boundaries from then on. 

Claims of ineffective assistance of counsel are reviewed by this court de novo, 

applying the two-pronged test the Supreme Court set forth in Strickland v. Washington, 

466 U.S. 668, 687 (1984). See United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). 

Under Strickland, an appellant must demonstrate:

(1) a deficiency in counsel’s performance that is so serious that counsel was 

not functioning as the counsel guaranteed the defendant by the Sixth 

Amendment; and (2) that the deficient performance prejudiced the defense 

through errors so serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable.

Tippit, 65 M.J. at 76 (quoting United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 

1997)) (internal quotation marks omitted). 

 

1 The appellant also raised a third issue regarding the completeness of his record of trial based on a missing 

document, but that issue is now moot as the missing document was submitted to this Court during the appellate 

review process.
3 ACM 38248

The deficiency prong requires an appellant show the performance of counsel fell 

below an objective standard of reasonableness, according to the prevailing standards of 

the profession. Strickland, 466 U.S. at 688. The prejudice prong requires a “reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694.

In conducting this analysis, appellate courts “indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance.” 

Id. at 689. We “‘will not second-guess the strategic or tactical decisions made at trial by 

defense counsel.’” United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001) 

(quoting United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993)).

The appellant cites to United States v. Wean, 45 M.J. 461 (C.A.A.F. 1997), in 

contending that his trial defense counsel were deficient for allowing him to concede his 

guilt in sentencing. In that case, our superior court discussed concessions of guilt by 

defense counsel during sentencing arguments:

[I]n general, when an accused has consistently denied guilt, a functional 

defense counsel should not concede an accused’s guilt during sentencing, 

not only because this can serve to anger the panel members, but also 

because defense counsel may be able to argue for reconsideration of the 

findings before announcement of the sentence.

Id. at 464. At the time of the Wean trial, members were allowed to reconsider findings of 

guilty at any time before announcement of the sentence. Id. at 464 n.4. Currently, and at 

the time of this court-martial, Rule for Courts-Martial 924 allows members to reconsider 

findings only before they are announced in open court. See also Analysis of Rules for 

Courts-Martial, Manual for Courts-Martial, United States, A21-71 (2012 ed.). With this 

change, the rationale that lead to the Wean decision is weakened, as is the appellant’s 

argument.

Furthermore, declarations prepared by the appellant’s two trial defense counsel in 

response to an order from this Court provide sound tactical reasons for the approach 

taken by the appellant during his unsworn statement, which was designed to convey his 

genuine remorse for what had occurred between him and the victim. This tactical 

decision was definitely reasonable as the Government had introduced evidence in 

findings that the appellant had confessed on three occasions to engaging in the charged 

sexual activity. Given this, we find the appellant has failed to meet his burden of 

demonstrating his trial defense counsel’s conduct was deficient. Furthermore, he has 

failed to demonstrate any prejudice.
4 ACM 38248

Instruction on Sex Offender Registration

At trial, defense counsel asked the military judge to take judicial notice of the 

federal sex offender registration requirement and to instruct the panel that the appellant 

faces “certain mandatory consequences” based on his conviction, namely that the 

Air Force will report his conviction to any state in which he works, resides, or attends 

school, and that federal law requires each state to make the appellant’s name, address,

and employment status publicly available. The proposed instruction further stated that 

sex offender registration is not one of the punishments available to the panel but the panel 

“may consider this fact in arriving at an appropriate sentence.” The military judge 

declined to give the instruction, noting that it was unclear how a state would implement 

the offender registration requirement. The military judge further noted that the appellate 

courts have not required such an instruction and that such courts were better postured to 

create a uniform instruction if one was to be required.

In his unsworn statement, the appellant stated, “Please bear in mind that I am 

going to have to register as a sex offender which will have devastating effects on my 

future.” In response, the military judge instructed the members:

The accused’s unsworn statement included the accused’s personal 

thoughts about the fact that he will have to register as a sex offender. An 

unsworn statement is a proper means to bring information to your attention, 

and you must give it appropriate consideration. Your deliberations should 

focus on an appropriate sentence for the accused for the offense of which 

[he] stands convicted. 

Federal law and military regulations do require, as a result of a 

court-martial for Aggravated Sexual Assault, that the accused’s conviction 

be reported to civilian authorities. Various state and local laws use this 

information in a variety of ways. Your duty is not to speculate on the 

collateral actions that others may take as a result of the accused’s 

conviction. Rather, your duty is to adjudge an appropriate sentence for the 

accused that you regard as fair and just when it is imposed and not one 

whose fairness depends upon actions that others may or may not take.

In his sentencing argument, trial defense counsel told the members to consider the 

sex offender registration and to consider how that was going to affect the appellant for 

the rest of his life. In response, trial counsel argued that sex offender registration was not 

a punishment but instead was a consequence of the actions the appellant took on the night 

in question.

We review a military judge’s sentencing instructions for an abuse of discretion. 

United States v. Barrier, 61 M.J. 482, 485 (C.A.A.F. 2005). In this context, a military 
5 ACM 38248

judge abuses his discretion when the instructions are based on an erroneous view of the 

law or are not tailored to the case’s facts and circumstances. United States v. Duncan, 

53 M.J. 494, 499 (C.A.A.F. 2000); United States v. Greaves, 46 M.J. 133, 139 (C.A.A.F. 

1997). 

Since the filing of the parties’ briefs in this case, the Court of Appeals for the 

Armed Forces has issued an opinion which requires rejection of the appellant’s argument. 

In United States v. Talkington, 73 M.J. 212, 216-17 (C.A.A.F. 2014), our superior court 

held that sex offender registration is a collateral consequence of the conviction alone, as 

it has no causal relationship to the sentence imposed for the offense. Thus, while an 

accused is permitted to raise this collateral consequence in his unsworn statement, the 

military judge may instruct the members essentially to disregard this collateral 

consequence as they deliberate on an appropriate sentence for an accused. Id.; Barrier, 

61 M.J. at 485-86; United States v. Tschip, 58 M.J. 275, 277 (C.A.A.F. 2003). In light of 

this holding, the military judge’s refusal to give the defense-requested instruction was not 

an abuse of discretion, and the instruction he did provide to the panel was in accordance 

with the holding in Talkington.

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. 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