UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201600253

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UNITED STATES OF AMERICA

Appellee

v.

MICHAEL K. STANTON

Lance Corporal (E-3), U.S. Marine Corps

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Elizabeth A. Harvey, USMC.

For Appellant: Captain Bree A. Ermentrout, JAGC, USN.

For Appellee: Major Kelli A. Oneil, USMC; Lieutenant Commander 

Jeremy R. Brooks, JAGC, USN.

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Decided 17 November 2016

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Before CAMPBELL, RUGH, and HUTCHISON, 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 special court-martial convicted the appellant, 

consistent with his pleas, of one specification of absenting himself without 

authority from his unit, and two specifications of wrongful use of drugs in 

violation of Articles 86 and 112a, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 886 and 912a.

1 The military judge sentenced the appellant to 64 

 

1 The sole specification of Charge II alleged the appellant wrongfully used cocaine 

on or about 28 December 2015. Separate specifications under the Additional Charge

alleged he wrongfully used cocaine and wrongfully used 3,4-methylenedoxymethamphetamine, a schedule I controlled substance, on or about 31 January 2016.
2

days’ confinement and a bad-conduct discharge. The convening authority 

(CA) approved the sentence as adjudged.2 

In his sole assignment of error, the appellant contends that he received 

ineffective assistance of counsel when his detailed defense counsel requested 

relief outside the authority of the CA to grant. We disagree, find no error 

materially prejudicial to the appellant’s substantial rights, and affirm the 

findings and sentence. 

I. BACKGROUND

On 28 December 2015, the appellant submitted a urine sample that tested 

positive for cocaine. On 30 January 2016, in the Gaslamp district of San 

Diego, he was arrested by civilian authorities on suspicion of being under the 

influence of a controlled substance. En route to the police station, the 

appellant lost consciousness and was taken to Balboa Naval Hospital. 

Consequently, he missed a 0830 muster on 31 January 2016. Upon returning 

to his unit, the appellant provided another urine sample that tested positive 

for both cocaine and 3, 4-methylenedioxy-methamphetamine. 

Trial defense counsel submitted a post-trial clemency request pursuant to 

RULES FOR COURTS-MARTIAL 1105 and 1106, MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2012 ed.), asking that the CA disapprove the bad-conduct 

discharge. 

II. DISCUSSION

The National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 

113-66, 127 Stat. 672 (2013), amended Article 60(c)(4), UCMJ, reducing the 

CA’s ability to effect sentences in cases involving most offenses committed on 

or after 24 June 2014. As a result, the CA could not grant the request to 

disapprove the bad-conduct discharge. United States v. Kruse, __ M.J. __, No. 

201600101, 2016 CCA LEXIS 650, at *8-10 (N-M. Ct. Crim. App. 3 Nov 2016) 

(holding such an action by the CA to be ultra vires).

The Sixth Amendment right to effective assistance of counsel at courtsmartial is a fundamental right of service members. United States v. Knight, 

53 M.J. 340, 342 (C.A.A.F. 2000) (citing United States v. Palenius, 2 M.J. 86 

(C.M.A. 1977)). That right extends to post-trial proceedings. United States v. 

Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). Ineffective assistance of counsel 

involves a mixed question of law and fact. United States v. Anderson, 55 M.J. 

 

As an unreasonable multiplication of charges, the military judge merged for findings 

the two specifications of the Additional Charge into a single specification.

2 The pretrial agreement in the case required the CA to suspend any confinement 

in excess of 60 days; since the appellant had already served 64 days in pretrial 

confinement by the date of his trial, the PTA had no affect.
3

198, 201 (C.A.A.F. 2001). The ultimate determinations of whether defense 

counsel were deficient and whether the deficiency was prejudicial are 

reviewed de novo. Id.; United States v. McClain, 50 M.J. 483, 487 (C.A.A.F. 

1999).

We apply the two-prong test set forth by the Supreme Court in Strickland 

v. Washington, 466 U.S. 668, 687 (1984) to determine whether counsel 

rendered ineffective representation. “The burden on each prong rests with the 

appellant challenging his counsel’s performance.” United States v. Davis, 60 

M.J. 469, 473 (C.A.A.F. 2005). The first prong requires the appellant to show

that counsel’s performance fell below an objective standard of reasonableness,

indicating that counsel was not functioning as counsel within the meaning of 

the Sixth Amendment. United States v. Terlep, 57 M.J. 344, 349 (C.A.A.F. 

2002). Our review of counsel’s performance is highly deferential and is

buttressed by a strong presumption that counsel provided adequate 

representation. United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004). 

The second prong requires a showing of prejudice resulting from counsel’s 

deficient performance. Strickland, 466 U.S. at 687. With regards to post-trial 

claims of ineffective assistance of counsel, courts must give an 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 this case, we need not determine whether trial defense counsel’s 

performance was so deficient as to render him ineffective because we 

conclude the appellant has not made a “colorable showing of possible 

prejudice.”3 Id. The appellant has not articulated any specific prejudice that 

resulted from the request for unauthorized relief and has submitted no 

evidence indicating how his trial defense counsel’s clemency submission 

contrasted with his wishes.4 Likewise, the appellant fails to adequately 

describe what the CA “might have done to structure an alternative form of 

clemency.” United States v. Capers, 62 M.J. 268, 270 (C.A.A.F. 2005).

 

3 See United States v. Datavs, 71 M.J. 420, 424-25 (C.A.A.F. 2012) (noting that 

courts are not required to determine whether counsel’s performance was deficient 

before first examining whether the appellant suffered any prejudice).

4 See e.g., United States v. Starling, 58 M.J. 620, 622-23 (N-M. Ct. Crim. App. 

2003) (finding that bare allegations of inadequate representation are not entertained 

by courts without submission of an affidavit showing how counsel acted contrary to 

appellant’s wishes); United States v. Pierce, 40 M.J. 149, 151 (C.M.A. 1994) (finding 

that vague or general intimations with regards to what the appellant would have 

submitted to the CA is insufficient to show prejudice).
4

This is particularly significant given the approved sentence in this case. 

The adjudged sentence included only the bad-conduct discharge and “time 

served.”5 With no post-trial confinement, the appellant endured no automatic 

forfeiture of pay pursuant to Article 58b, UCMJ. In fact, the only 

punishment the CA could have acted upon was the appellant’s automatic 

reduction in grade imposed pursuant to Article 58a, UCMJ.6 But the 

appellant has provided no evidence to suggest that he desired any relief from 

the automatic reduction in grade or, alternatively, that he was improperly 

advised regarding any potential clemency. Absent such evidence, and given 

the appellant’s sentence, we conclude there is no colorable showing of possible 

prejudice.

III. CONCLUSION

The findings and the sentence as approved by the CA are affirmed.

 

5 The appellant was awarded 64 days confinement, but he was credited with 64 

days of pretrial confinement from 31 January 2016 to 4 April 2016.

6 We note that the appellant specifically cites trial defense counsel’s failure to 

request that the CA take action on modifying the confinement time as evidence of 

prejudice. Appellant’s Brief of 6 Sep 2016 at 5. While we are mindful that the CA had

the authority to disapprove the appellant’s adjudged confinement even though it had 

already been served, we find no possible prejudice to the appellant given the illusory 

nature of such clemency.

 For the Court 

 R.H. TROIDL 

 Clerk of Court