UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600190

_________________________

UNITED STATES OF AMERICA

Appellee

v.

MICHAEL L. GIACINTI

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: Major Mark D. Sameit, USMC.

Convening Authority: Commanding General, 3d Marine Aircraft 

Wing, MCAS Miramar, San Diego, CA.

Staff Judge Advocate’s Recommendation: Colonel Daren K. 

Margolin, USMC.

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

For Appelle: Major Kelli A. O’Neal, USMC; Lieutenant Commander 

Jeremy R. Brooks, JAGC, USN.

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Decided 31 January 2017

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Before CAMPBELL, FULTON, and GLASER-ALLEN, 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.

_________________________

GLASER-ALLEN, Judge:

A military judge sitting as a general court-martial convicted the 

appellant, consistent with his pleas, of making a false official statement; 

several drug offenses, including possession with intent to distribute, 
United States v. Giacinti, No. 201600190

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manufacturing with intent to distribute, incapacitation for performance of 

duties through prior wrongful indulgence in drugs, introduction onto a 

military installation, six wrongful use specifications, two distribution 

specifications ; as well as a disorderly conduct specification, in violation of 

Articles 107, 112a, and 134, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 907, 912a, and 934 (2012). The military judge sentenced the 

appellant to 42 months’ confinement and a dishonorable discharge. The 

convening authority (CA) approved the sentence and, pursuant to a pretrial 

agreement (PTA), suspended all confinement in excess of 36 months. 

Although the case was submitted for appellate review without assignment 

of error, we specified the following issue: 

Did the appellant receive the effective assistance of counsel in 

his post-trial representation where detailed defense counsel 

specifically limited the appellant’s requested clemency request 

due to a misunderstanding of the CA’s clemency powers, when 

the CA was empowered to grant much broader relief under the 

law? If not, was appellant prejudiced by this deficiency? 

 Having carefully considered the record of trial and the parties’ pleadings, 

we answer the specified issue in the negative, finding no prejudice. We 

conclude the findings and the sentence are correct in law and fact and that no 

error materially prejudicial to the substantial rights of the appellant 

occurred. Arts. 59(a) and 66(c), UCMJ. 

I. BACKGROUND

The National Defense Authorization Act for Fiscal Year 20141(FY14 

NDAA) substantially changed the authority of CAs to take action on findings 

and sentences under Article 60, UCMJ. Regarding actions on findings after 

trial, CAs can no longer, except for only the most minor offenses, dismiss any 

charge or specification or change any finding of guilty to a finding of guilty to 

a lesser included offense.2 Acting on sentences, CAs can no longer 

“disapprove, commute, or suspend in whole or in part an adjudged sentence of 

confinement for more than six months or a sentence of dismissal, 

dishonorable discharge, or bad conduct discharge” outside of two exceptional 

circumstances—neither of which exists here.3

 

1 Pub. L. No. 113-66, 127 Stat. 672 (2013). 

2 Id. at 956.

3 Id. at 956-57. CAs retain the ability to act on adjudged punitive discharges 

and/or confinement in excess of six months when such action is taken pursuant to the 

terms of a PTA or following a prosecutor’s written recommendation which documents 

an accused’s substantial assistance in investigating or prosecuting other cases. 
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The changes to Article 60, UCMJ, became effective on 24 June 2014, and 

the FY15 NDAA provided clarification for courts-martial such as this one, 

which involves offenses occurring before and after that effective date: 

With respect to the findings and sentence of a court-martial 

that includes both a conviction for an offense committed before 

[24 June 2014] and a conviction for an offense committed on or 

after that effective date, the convening authority shall have the 

same authority to take action on such findings and sentence as 

was in effect on the day before such effective date[.]4

The appellant’s offenses occurred between 1 June 2014 and 30 August 2015. 

Trial defense counsel (TDC) submitted a post-trial clemency request 

which asked the CA to disapprove the appellant’s automatic reduction in 

rank or, alternatively, to suspend the reduction until the appellant’s 

discharge. The request erroneously explained: 

Broad authority to grant clemency was until recently a tool 

available for commanders to utilize as a means of displaying 

mercy or encouraging certain positive behavior in worthy cases. 

For example, a commander could limit confinement time or 

modify the type of discharge adjudicated at nearly all courtsmartial. However, recent changes in the law significantly 

circumscribe a commander’s authority to grant clemency in 

appropriate cases such as this one.

Under the new law, one of the only available means of 

providing clemency in this case would be to disapprove the 

reduction of . . . rank, or alternatively, suspend the reduction 

until he is discharged from the Marine Corps.5

The staff judge advocate’s recommendation (SJAR) correctly addressed 

the appellant’s misunderstanding of the CA’s authority in this case, noting: 

While you have some discretion in acting on the guilty findings 

or sentence, you must consider the results of trial (enclosure 

(1)), this recommendation and any addendum thereto, and any 

post-trial trial matters submitted by the defense.

Straddling Offenses Case. The accused was found guilty 

of offenses occurring both before and on or after 24 June 2014. 

 

4 Pub. L. No. 113-291, 128 Stat. 3292, 3365 (2014). 

5 Clemency Request, 27 Jan 2016, at 1-2, ¶ 6-7.
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Accordingly, you may take whatever action you deem 

appropriate on the guilty findings and/or on the sentence.6

TDC neither responded to the SJAR nor requested additional clemency in 

light of the SJAR’s correct guidance regarding the CA’s still-unfettered 

options on the findings and sentence in this straddling offenses case. The CA 

took action without granting any clemency. 

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).

In evaluating claims of post-trial 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 demonstrating a 

“colorable showing of prejudice,” appellants 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).

Courts are not required, however, to determine whether counsel’s 

performance was deficient before first examining whether the appellant 

suffered any prejudice. Datavs, 71 M.J. at 424-25. “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. “Where there is error 

in post-trial processing and ‘some colorable showing of possible prejudice’ 

thereby, this court must either provide meaningful relief or remand for new 

post-trial processing.” United States v. Roller, 75 M.J. 659, 661 (N-M. Ct. 

Crim. App. 2016) (quoting Wheelus, 49 M.J. at 289 (additional citation 

omitted)). 

 

6 SJAR of 8 April 2016 at 1-2, ¶ 1, 11.
United States v. Giacinti, No. 201600190

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Even assuming arguendo that TDC’s performance was deficient, given his 

misstatement of the law, the appellant here fails to demonstrate a colorable 

showing of possible prejudice. 

This case differs from others recently involving prejudicial error and 

requiring new post-trial action. For example, in United States v. Bannister, 

No. 201600056, 2016 CCA LEXIS 686, unpublished op. (N-M. Ct. 

Crim, App. 30 Nov 2016), and United States v. Addison, 75 M.J. 405 

(C.A.A.F. 2016), the TDC, as here, misunderstood the Article 60, UCMJ, 

changes and incorrectly believed the CA had restricted clemency authority. 

But in both cases, the clemency submission misstating the limits of the CA’s 

authority was submitted after the SJAR. In Bannister, though the SJAR had 

“correctly advised the CA that ‘action on the guilty findings or sentence is a 

matter within your discretion,’” there was no SJAR addendum to inform the 

CA of the TDC’s misstatements. 2016 CCA LEXIS 686 at *5-6. In 

Addison, although there was an SJAR addendum, it nonetheless failed to 

correct the TDC’s misstatement in the clemency request. United States v. 

Addison, No. S32287, 2016 CCA LEXIS 288, at *3-5, unpublished op., (A.F. 

Ct. Crim. App. 6 May 2016), rev’d, 75 M.J. 405 (C.A.A.F. 2016). Thus, in both 

Bannister and Addison, the CA was left with uncorrected statements of his 

post-trial authority before taking action, resulting in deficient TDC 

performance or a colorable showing of possible prejudice remedied by 

appellate court orders for new post-trial processing. 

Here, an accurate SJAR followed the inaccurate clemency request. It 

properly advised that this is a straddling offenses case and that the CA 

retained complete authority to take “whatever action [he] deemed 

appropriate on the guilty findings and/or on the sentence.”7 Therefore, since it 

corrected the TDC’s misstatement of the law and properly informed the CA of 

his full range of clemency authority, we conclude the appellant has not made 

a colorable showing of possible prejudice.8 Further, the appellant has not 

 

7 Id. at 1, ¶ 11.

8 See, e.g., United States v. Garcia, No. 20160116, 2016 CCA LEXIS 714, 

unpublished op. (N-M. Ct. Crim. App. 15 Dec 2016) (finding that the TDC 

requested clemency outside the CA’s authority as a tactical decision to preserve the 

appellant’s rights should the Article 60, UCMJ, amendments be successfully 

challenged); United States v. Mitcham, No. 201600173, 2016 CCA LEXIS 675, at *4-5

unpublished op. (N-M. Ct. Crim. App. 29 Nov 2016) (per curiam) (finding no 

colorable showing of possible prejudice where the CA’s action acknowledged the 

discrepancy between the SJAR’s correct explanation of his limited clemency powers 

and the TDC’s erroneous request for clemency outside of his authority to grant, and 

the CA noted that he would not have granted the requested clemency even if he had 

the authority to do so); and United States v. Bell, No. 201600066, 2016 CCA LEXIS 

608, unpublished op., (N-M. Ct. Crim. App. 20 Oct 2016) (per curiam) (finding no 
United States v. Giacinti, No. 201600190

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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.9 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). Indeed, at the time of his action, the CA knew the TDC had 

asked for suspension of the appellant’s reduction in rank, possessed the 

correct advice from his SJA that he retained unfettered authority on findings 

and sentence, and yet granted no clemency at all. The appellant has 

submitted no evidence that the CA would have been more lenient or done 

something different, had the TDC made a different or more expansive 

request.10 

III. CONCLUSION

Accordingly, the findings and sentence are approved. 

Senior Judge CAMPBELL and Judge FULTON concur. 

For the Court

R.H. TROIDL

Clerk of Court 

 

“colorable showing” of “possibl[e] prejudice[]” where the TDC requested clemency 

outside the CA’s authority, but the appellant did not raise ineffective assistance of 

counsel (citing United States v. Conrad, No. 201600142, 2016 CCA LEXIS 535, at *2-

3 unpublished op. (N-M. Ct. Crim. App. 8 Sep 2016) (per curiam))..

9 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 

“seriously 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 convening authority are insufficient to 

show prejudice).

10 See United States v. Hoye, No. S31538, 2009 CCA LEXIS 122, *5-6, 

unpublished op. (A. F. Ct. Crim. App. 7 Apr 2009) (per curiam) (finding that “there 

has simply been no showing that absent alleged deficient conduct there is a 

reasonable probability that the approved sentence would have been different,” where 

the CA was “ostensibly aware” of Hoye’s desired sentence reduction, had already 

separately considered the materials that Hoye would have submitted to the CA in a 

clemency petition, and had already denied Hoye’s requested clemency).