This opinion is subject to administrative correction before final disposition.

Before HOLIFIELD
, KIRKBY , and DALY Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.
Austin E. R ANKIN Lance Corporal (E

- 3 ), U.S. Marine Corps Appellant

No. 20 2 300100

_________________________
Decided: 12 July 2024
Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge : Adam M. King

Sentence adjudged 17 November 2022 by a general court

- martial convened at Marine Corps Base Camp Foster, Okinawa
, Japan, consisting of a military judge sitting alone

. Sentence in the Entry of Judgment : reduction to E

- 1, confinement for fifty months
, forfeiture of all pay and allowances
, and a dishonorable discharge

. For Appellant: Catherine M. C herkasky Lieutenant Commander Matthew A. Kozyra, JAGC, USN

For Appellee: Lieutenant Rachel E. Noveroske, JAGC, USNU nited States v. Rankin
, NMCCA No. 202300100 Opinion of the Court

2 _________________________
This opinion does not serve as binding precedent, but may be cited as persuasive authority under

NMCCA Ru le of App ellate Procedure 30.2.

_________________________

PER CURIAM :
A ppellant was convicted, pursuant to his pleas, of two specification s of possessing child pornography, in violation of Article 134 , Uniform Code of Military Justice (UCMJ)

. 1 In his sole assignment of error (AOE) , Appell ant asserts his trial defense counsel’s breach of their duty of confidentiality rendered his guilty plea involuntary. We find no prejudicial error and affirm.



### I. B ACKGROUND
In the spring of 2021, the Naval C riminal Investigati ve Service ( NCIS ) began investigati ng Appellant for possession of child pornography based upon two National Center for Missing and Exploited Children CyberTipline r eports. O n 20 August 2021
, NCIS executed a Command Authorizati on for Search and Seizure of A ppellant’s barracks room . A mong the items seized was a Lenovo Think pad , a search of which revealed thousands of media items later identified as child por nography. On 2 September 2021, a Search and Seizure Warrant for Appellant’s Dropbox account was issued pursuant to 18 U.S.C. § 27 03. 2 The ensuing search identified thousands of additional images of child pornography contained in a folder labe led “Gucci stuff.”On 13 July 2022, Appellant was charged with three specifications of possessi ng child pornography. The first specification stemmed from an image found on Appellant’s Gmail account, the second concerned the content found on his Lenovo Thinkpad, and the third derived from the content found i n his Dropbox account. Appellant, through his trial defense couns el, subsequently negotiated a plea agreement with the convening authority wherein Appe llant agreed to plead guilty to the second and third specifications of t he C harge. In exchange

1 10 U.S.C. § 934.

2 Dropbox is an online file hosting service.U nited States v. Rankin
, NMCCA No. 202300100 Opinion of the Court

3 for this, the convening authority agreed to conditionally withdraw and dism iss the remaining specification, to refrain from referring any additional related charges or specifications, and to limit the sentence the military judge could award based on Appellant’s plea. Absent the agreement, the maximum punishment Appellant faced fo r the charged offenses was 3 0 years’ confinement, reduction to E

- 1, a dishonorab le discharge, total forfeitures
, and a fine

. 3 But the terms of the plea agreement imposed only a minimum of three years ’ and a maximum of five years ’ confinement for each specification to which Appellant pleaded guilty
, to run concurrently. 4 The agreement also allowed for total forfeitures and required that Appellant be reduced to paygrade E

- 1 and receive a dishonorable discharge. 5
Before being questioned regarding the spec ifics of his plea and plea agreement, Appellant was placed under oath. Prior to accepting Appellant’s plea, the military judge informed Appellant that he was free to “withdraw from this plea agreement for any reason prior to [the military judge’s] acceptan ce of [Appellant’s] plea agreement.” 6 The military judge then asked A ppellant, “Do you understand your ability to withdraw from the plea agreement?” 7 Appellant responded
, “Yes, sir.” 8 The military judge additionally asked whether Appellant was “satisfied w ith [his] defense counsel’s advice concerning [the] plea agreement.” 9 Appellant again responded, “Yes, sir.” 10 Appellant next indicated he entered the plea agreement of his own free will and was not forced by anyone to make the plea agreement. 11
Later in th e colloquy , the military judge asked Appellant
, “Are you satisfied that your defense counsel’s advice is in your best interest?” 12 Appellant replied,

3 R. at 64.

4 Appellate Ex. II at 5

- 6.

5 Appellate Ex. II at 5.

6 R. at 67.

7 R. at 67.

8 R. at 67.

9 R. at 83.

10 R. at 83.

11 R. at 83.

12 R. at 84.U nited States v. Rankin
, NMCCA No. 202300100 Opinion of the Court

4 “Yes, sir.” 13 The military judge then asked, “Are you pleading guilty voluntarily and of your own free will? ” 14 Again, Appellant replied, “Yes, sir.” 15 Next, the military judge asked, “Has anyone made any threat or tried in any way to force you to plead guilty?” 16 Appellant re s pond ed, “No, sir.” 17 The military judge went on to ask Appellant, “Do you understand that even though you believe you are guilty, you have the legal right to plead not guilty and to place upon the government the burden of proving your guilt beyond a reasonable doubt?” 18 Appellant responded, “Y es, sir.” 19

T he military judge subsequently accepted Appellant’s plea s

. Consistent with the plea agreement, the military judge sentenced Appellant to fifty months ’ confinement, reduction to paygrade E

- 1, total forfeitures, and a dishonorable discharge. 20 On 12 April 2023, Appellant’s case was docketed with this Court. On 7 September 2023, Appellant filed a Motion to Attach two affidavits to the record of trial : one from Appellant and an other from Appellant’s mother

. 21

13 R. at 85.

14 R. at 85.

15 R. at 85.

16 R. at 8 5.

17 R. at 85.

18 R. at 85.

19 R. at 85.

20 The military judge sentenced Appellant to fifty months’ confinement each for Specifications 2 and 3 of the Charge, to run concurrently.

21 The Court initially denied Appellant’s Motion to Attach the affidavits, as well asAppellant’s Motion to Reconsider that denial. Court Orders of 10 October 2023 (Denying Appellant’s Motion to Attach) and 24 October 2023 (Denying Appellant’s Motion for Rec onsideration). We have since revisited this matter sua sponte and granted Appellant’s Motion to Attach. Accordingly, the two affidavits are now part of the record and discussed in this opinion. As we ultimately conclude Appellant’s assignment of error is w ithout merit, we see no need to provide Appellee an opportunity to amend its Answer based on our granting the Motion to Attach. And, as we assume arguendo , notspecifically conclude, that Appellant’s trial defense counsel conduct was constitutionally defic ient, we have not requested responding affidavits from those counsel. See United States v. Melson , 66 M.J. 346 , 351 (C.A.A.F. 2008) (citing United States v. Ginn
, 43 M.J. 471 (C.A.A.F. 1996)).U nited States v. Rankin
, NMCCA No. 202300100 Opinion of the Court

5 In the first affidavit , Appellant claim s that
, on the day of hi s guilty plea, he explained to his trial de fense counsel that “ [he] no longer wanted to go through with the plea deal, and preferred to go to a trial by courts martial [sic] instead.” 22 Appellant further claim s he spent roughly “3

- 4 hours” explaining to his trial defense counsel that he no longer w ish ed to plead guilty pursuant to the agreement. Appellant describe s how his trial defense counsel repeatedlyattempted to convince him to change his mind and accept the agreement. Eventually, Appellant began receiving “text messages and call s from [his] mother asking what was going on and why [Appellant] had a lawyer calling her about something she had never heard about.” 23 Appellant states that, after receiving these messages from his mother, he was “tired of arguing with [his] attorneys” and therefore accepted the plea agreement. 24 Appellant asserts he had specifically and repeatedly told his trial defense counsel not to contact his family about his legal situation. In the second affidavit, Appellant’s mother describes how, on th e day of her

so n ’s guilty plea, sh e rec eived a call from Appellant’s trial defense counsel indicating her son was readying to accept a plea agreement for a “very serious crime.” 25 The counsel explained that her son would most likely lose a contested trial, w as facing a potential sentence of “20

- 40 years in prison,” and his “only real choice was to take the plea deal that was being offered at that time.” 26 She
states t his was the first she or her husband had heard of Appellant’s alleged misconduct and disciplinary proceedings

. Additional facts necessary to resolve Appellant’s AOE are discussed below.



### II. D ISCUSSION
Appellant claims that his plea was involuntary due to his trial defense counsel’s ineffective assistance . Specifically, he claims that his counsel improperly pressured him to plead guilty by “using means that violate d [their ] duty of confidentiality [owed] to him as their clien t, ” that is, by contacting his family

22 Appellant’s Mot. to Attach, App’x A at 2.

23 Appellant’s Mot. to Attach, App’x A at 2.

24 Appellant’s Mot. to Attach, App’x A at 2.

25 Appellant’s Mot. to Attach, App’x B at 1. Appellant’s mother claims the attorney revealed no other information regarding the charges.

26 Appellant’s Mot. to Attach, App ’x B at 1.U nited States v. Rankin
, NMCCA No. 202300100 Opinion of the Court

6 against his wishes

. 27 We therefore begin by examining whether Appellant’s claim of ineffective assistance has merit

.
A. Even assuming counsel’s actions constitute d deficient performance , Appellant has failed to demonstrate prejudice.

1. Standard of Review and Law
We review claims of ineffective assistance of co unsel de novo. 28 “The Supreme C ourt has set a high bar for an appellant to prevail on such a claim.” 29The appellant must show both that: (1) his counsel’s performance was deficient, that is, fell below an objective standard of reasonableness; and (2) but for his counsel’s deficient perf ormance, there is a reasonable probability that the result of the proceeding would have been different. 30To establish the first prong, an appellant must overcome a “strong presumption that counsel’s conduct falls within the wide range of reasonable profess ional assistance.” 31 This presumption “is rebutted by a showing of specificerrors made by defense counsel that were unreasonable under prevailing professional norms.” 32
Under the second prong, even when there is deficient performance, it must be so prejudicial “as to indicate a denial of a fair trial or a trial whose result is unreliable.” 33 The appellant must show that
, but for the deficient performance, there is a reasonable probability that the outcome would have been different. “A reasonable probability is a probabilit y sufficient to undermine confi dence in the outcome. That requires a substantia l, not just conceivable, likeli hood of a different resu lt.” 34

27 Appellant’s Br. at 11.

28 United States v. Akbar , 74 M.J. 364, 379 (C.A.A.F 2015).

29 Id. at 371.

30 Id. (citing Strickland v. Washington , 466 U.S. 668 (1984)).

31 Strickland , 466 U.S. at 689.

32 United States v. Davis , 60 M.J. 469, 473 (C.A.A.F. 2005) (citation omitted).

33 Id. at 473 (citation omitted).

34 Cullen v. Pinholster , 563 U.S. 170, 189 (2011) (citations omitted) (cleaned up).U nited States v. Rankin
, NMCCA No. 202300100 Opinion of the Court

7 In the con text of a guilty plea, we apply the same two

- part Strickland test,but the prejudice inquiry “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” 35 An appellant “must show that there is a reasonable probab ility that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 36

“ [E] ven if counsel's performance was deficient, [A] ppellant must also mee t the prejudice prong under Strickland .” 37 Thus, “if we conclude that any error would not have been prejudicial under the second prong of Strickland , we need not ascertain the validity of the allegations or grade the quality of counsel's
per formance under the first prong.” 38

2. Analysis The present facts raise several questions : Was contacting Appellant’s family a bre ach of confidentiality within th e meaning of applicable professional responsibility rules? And, if so
, did the violation amount to constitutionally deficient performance ?
We need not re solve these questions here, as we start and end our analysis with Strickland ’s second prong. 39 A ssuming arguendo the answer is “yes” to both questions , we reach the same conclusion: that Appellant has not met his burden of showing that, but for his trial de fense counsel’s action, it was reasonably probable that he would have pleaded not guilty. It is simply not reasonable to believe Appellant ’s claim given
, inter alia
, the amount and nature of the evidence against him. In addition to his detailed confession, the Government found thousands of images of child pornography on Appellant’s Thinkpad and online accounts. Along with these disturbing images , many of which he kept in a folder labeled “Gucci Stuff, were found Appellant’s equally disturbin g sea rch terms .” 40 Based on the charged offenses, Appellant faced a max imum of 30 years’ confinement

. In light of this, Appellant’s plea agreement provided him significant protections

. We simply cannot see as

35 Hill v. Lockhart , 474 U.S. 52, 59 (1985).

36 Id. ; see also United States v. Alves , 53 M.J. 286, 289 (C.A.A.F. 2000).

37 Alves , 53 M.J. at 289.

38 United States v. Saintaude , 61 M.J. 175, 179

- 80 (C.A.A.F. 2005).

39 For purposes of our analysis, we will assume Appellant’s allegations to be true. It is not necessary for us to

-- and we do not

-- reach a conclusion regarding whether trialdefense counsel’s actions violated client confidentiality or other professional responsibility rules.

40 Pros. Ex. 1 at 2.U nited States v. Rankin
, NMCCA No. 202300100 Opinion of the Court

8 reasonably probable that Appellant would have f oregon e these benefits but for the phone call Appella nt’s counsel made to his mother

.
B. Appellant’s guilty plea was voluntary. Appellant’s brief combine s elements of ineffective assistance of his counsel and voluntariness of his plea s . Having concluded that Appell ant’s claim failson the first basis, we next examine his claim on the second: Did counsel’s contacting Appellant’s family, along with pressuring him to accept the plea agreement and plead guilty, somehow overco me Appellant’s will and render his plea invol untary? A ppellant states he felt he had no other choice but to accept the plea agreement and plead guilty

. But the record clearly shows otherwise

.

1. Standard of Review and Law

T he voluntariness of a guilty plea is a question of law, and one that we review de novo. 41 “A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue imp roper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).” 42

2. Analysis First, Appellant ’s cla im that he wanted to go to trial but was forced by his

cou nsel to plead guilty is directly contradicted by his responses to the military judge ’ s thorough questions during the Care inquiry. 43 Under oath before a neutral judge
, Appellant stated

— twice

— that he was satisfied with his counsel’s advice. He affirmed his understanding that he was free to withdraw from the plea agreement. He stated that he was neither threatened n or o therwise forced to enter into the plea agreement and that he did so of his own free w ill. He indicated he understood the meaning of his pleas, including the rights he gave up by pleading guilty. And he unequivocally told the military judge he was pleading guilty voluntarily and of his own free will.

41 Marshall v. Lonberger , 459 U.S. 422 (1983).

42 Brady v. United States , 397 U.S. 742, 75 5 (1970) (citation and internal quotation marks omitted).

43 United States v. Care
, 18 C.M.A. 535, 40 C.M.R. 247 ( 1969).U nited States v. Rankin
, NMCCA No. 202300100 Opinion of the Court

9 Second, Appellant makes no claim of ignorance, confusion, or mistake that would somehow reconcile his in

- court answers with his present claim of involuntariness . When Appellant answered the military judge’s questions, he was fully aware of all the facts he now claims rendered his plea involuntary

. Against this testimony we have only Appellant’s sworn affidavit

— made more than nine months after trial . We have no trouble concluding his claim of involuntariness is without merit.



### III. C ONCLUSION

After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial t o Appellant ’s substantial rights occurred. 44
T he findings and sentence are A FFIRMED

.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

44 Articles 59 & 66, UCMJ

.