UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201700186

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UNITED STATES OF AMERICA

Appellee

v.

SETH M. BRUMFIELD

Air Traffic Controller Third Class (E-4), U.S. Navy

Appellant

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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.

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Decided 28 December 2017

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Before HUTCHISON, FULTON, and SAYEGH, Appellate Military Judges

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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.

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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

2

(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.
United States v. Brumfield, No. 201700186

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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 posttrial 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.
United States v. Brumfield, No. 201700186

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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