UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39794

________________________

UNITED STATES

Appellee

v.

Radell J. MITCHELL

Technical Sergeant (E-6), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary 

Decided 7 January 2021

________________________

Military Judge: Matthew P. Stoffel.

Sentence: Sentence adjudged on 15 July 2019 by GCM convened at 

Misawa Air Base, Japan. Sentence entered by military judge on 31 July 

2019: Dishonorable discharge, confinement for 26 months, and 

reduction to E-1. 

For Appellant: Captain Alexander A. Navarro, USAF.

For Appellee: Major Jessica L. Delaney, USAF; Mary Ellen Payne, 

Esquire.

Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.

Judge ANNEXSTAD delivered the opinion of the court, in which Senior 

Judge MINK and Judge KEY joined. 

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

ANNEXSTAD, Judge:

A general court-martial composed of a military judge sitting alone 

convicted Appellant, in accordance with his pleas and pursuant to a pretrial
United States v. Mitchell, No. ACM 39794

2

agreement (PTA), of one charge and specification of wrongful possession of 

child pornography in violation of Article 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 934.1 The military judge sentenced Appellant to a 

dishonorable discharge, confinement for 26 months, forfeiture of all pay and 

allowances, and reduction to the grade of E-1. In accordance with the PTA, the 

convening authority disapproved the part of the sentence extending to total 

forfeitures, but approved the remainder of the adjudged sentence.2

On appeal, Appellant raises four issues before this court: (1) whether 

Appellant is entitled to sentence-appropriateness relief due to post-trial delay, 

specifically, Appellant claims that his due process rights were violated when 

his case was not docketed with this court within 30 days of the convening 

authority’s action as required by United States v. Moreno, 63 M.J. 129, 142 

(C.A.A.F. 2006); (2) whether Appellant was denied the effective assistance of 

counsel under the Sixth Amendment3 for failing to object to the stipulation of 

fact that contained evidence of uncharged sexual misconduct; (3) whether 

Appellant was denied the effective assistance of counsel under the Sixth 

Amendment when trial defense counsel provided erroneous legal advice during 

clemency; and (4) whether Appellant’s sentence is inappropriately severe.4 We

find no error that resulted in material prejudice to Appellant’s substantial 

rights, and affirm the findings and sentence. 

I. BACKGROUND

On 15 July 2019, Appellant, a maintainer and quality assurance inspector

at Misawa Air Base, Japan, pleaded guilty to one charge and specification for 

wrongfully possessing child pornography in violation of Article 134, UCMJ. 

 1 References to the punitive articles of the Uniform Code of Military Justice (UCMJ) 

are to the Manual for Courts-Martial, United States (2016 ed.). Unless otherwise 

specified, all other references to the UCMJ and all references to the Rules for CourtsMartial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.).

2 Pursuant to the PTA the convening authority deferred the adjudged reduction in 

grade and all adjudged and mandatory forfeitures of pay and allowances from 29 July 

2019 until the date the entry of judgement (EoJ) was signed by the military judge. Also 

in accordance with the PTA, the convening authority waived all of the automatic 

forfeitures for a period of six months, release from confinement, or expiration of 

Appellant’s term of service, whichever was sooner, with the waiver commencing on the 

date the EoJ was signed by the military judge.

3 U.S. CONST. amend. VI.

4 Appellant personally raises issues (2) through (4) pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982). Since issues (2) and (3) require the same 

analysis, we consider them together.
United States v. Mitchell, No. ACM 39794

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At trial, Appellant admitted that he downloaded child pornography using 

a peer-to-peer program called “Shareaza.” Appellant stated that he began 

viewing legal, adult pornography, but eventually transitioned to viewing 

pornography with younger women and eventually children. Appellant further 

admitted that he possessed, viewed and downloaded pornography with 

children as young as seven years old having vaginal and oral sex with adult 

men. Appellant admitted that he searched for and downloaded child 

pornography on his laptop and that he possessed 62 files with “hash values”

from the National Center for Missing and Exploited Children (NCMEC), which 

indicated that the files were known depictions of exploitation involving 

identified child victims. Appellant also admitted that he possessed 100 

additional files on his laptop that contained images of child pornography and 

child erotica that were not associated with a NCMEC hash value.

In addition to the files on his laptop, Appellant also admitted that he 

possessed 23 files with NCMEC-positive hash values on an external hard drive

that he kept in a packing box in his closet. Appellant admitted that the hard 

drive contained 16,000 other files of pornography, with at least 2,000 image 

files of child pornography and 100 videos of child pornography.

The primary evidence at trial consisted of Appellant’s sworn statements to 

the military judge and a six-page stipulation of fact with five attachments 

totaling 56 pages. The attachments included a report of investigation (ROI) 

from the Naval Criminal Investigative Service, Appellant’s four-page written 

confession to law enforcement investigators, redacted excerpts from the Air 

Force Office of Special Investigations’ ROI, a report from the Defense Cyber 

Crime Center’s Cyber Forensic Laboratory (DC3/CFL), and a digital video disc

(DVD) with contraband material.

II. DISCUSSION

A. Post-Trial Delay

Appellant contends that he is entitled to sentence relief because his due 

process rights were violated when his case was not docketed with this court 

within 30 days of the convening authority’s action as required by Moreno. We 

disagree.

1. Additional Background

Appellant was sentenced on 15 July 2019. On 22 July 2019, Appellant 

submitted his request for clemency. The convening authority signed the 

decision on action memorandum to the military judge on 29 July 2019, and the 

military judge signed the entry of judgment on 31 July 2019. The court reporter 

certified the transcript on 19 August 2019. On 19 September 2019, a copy of 

the record of trial (ROT) was sent to Appellant. The case was subsequently 
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docketed with this court on 21 October 2019. Appellant never requested speedy

processing.

In his 14 July 2020 declaration before this court, Appellant claims that the 

delay in docketing his case with this court has negatively impacted both his 

ability to begin his efforts to administratively upgrade his discharge 

characterization and his ability to apply for veteran’s medical benefits for his 

service-related medical issues.5 Appellant claims that the delay in the outcome 

of his appeal has caused him “particularized anxiety and apprehension” 

because of his “numerous mental and physical health ailments.” Appellant 

asks this court to grant sentence relief. 

2. Law and Analysis

This court reviews de novo whether an appellant’s due process rights are 

violated because of post-trial delay. Moreno, 63 M.J. at 135 (citations omitted). 

In the absence of a due process violation, this court considers whether relief for 

excessive post-trial delay is warranted consistent with this court’s authority 

under Article 66(d)(2), UCMJ, 10 U.S.C. § 866(d)(2). See United States v. 

Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United States v. Gay, 74 M.J. 736, 

744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016). 

In Moreno, the United States Court of Appeals for the Armed Forces 

(CAAF) identified thresholds for facially unreasonable delay during three 

particular segments of the post-trial and appellate process. 63 M.J. at 141–43.

Specifically, the CAAF established a presumption of facially unreasonable 

delay where: (1) the convening authority did not take action within 120 days 

of the completion of trial, (2) the record was not docketed with the Court of 

Criminal Appeals within 30 days of the convening authority’s action, or (3) the 

Court of Criminal Appeals did not render a decision within 18 months of 

docketing. Id. at 142.

We note at the outset, Appellant’s offense occurred between on or about 21 

July 2016 and on or about 31 May 2018. The convening authority referred the 

charge and specifications to trial by general court-martial on 3 June 2019. 

Accordingly, Appellant’s court-martial was generally subject to the procedures

provided for in the 2019 version of the Manual for Courts-Martial. We also 

agree that the due process right to timely post-trial and appellate review the 

CAAF recognized and sought to safeguard in Moreno endures under the new 

post-2019 procedures. 

 5 Since the issue was raised in the record but was not fully resolvable by those 

materials, the affidavits submitted by the Government and Appellant were considered 

consistent with United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020).
United States v. Mitchell, No. ACM 39794

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As we recently noted in United States v. Livak, ___ M.J. ___, No. ACM 

S32617, 2020 CCA LEXIS 315, at *6–7 (A.F. Ct. Crim. App. 14 Sep. 2020)

(citation omitted), “the specific requirement in Moreno which called for 

docketing to occur within 30 days of action no longer helps us determine a 

facially unreasonable delay under the new procedural rules,” but the aggregate 

standard threshold established by the majority in Moreno of 150 days from 

Appellant’s sentence to docketing is still applicable in determining a facially 

unreasonable delay. “This 150-day threshold appropriately protects an 

appellant’s due process right to timely post-trial and appellate review and is 

consistent with our superior court’s holding in Moreno.” Id. at *7. 

In the case before us, the entire period from the end of Appellant’s trial to 

docketing with this court took 98 days. Since this is well under the 150-day 

threshold discussed above, we conclude no facially unreasonable delay 

occurred.

Assuming arguendo that there was a facially unreasonable delay from 

convening authority action to docketing, we will assess whether there was a 

due process violation. In conducting our analysis, we have considered the four 

factors set forth in Barker v. Wingo, 407 U.S. 514, 530–32 (1972): (1) the length 

of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the 

right to timely review and appeal; and (4) prejudice. “[These] four factors are 

balanced, with no single factor being required to find that post-trial delay 

constitutes a due process violation.” Moreno, 63 M.J. at 136 (citing Barker, 407 

U.S. at 533) (additional citation omitted). Additionally, where an appellant has 

not shown prejudice from the delay, we cannot find a due process violation 

unless the delay is so egregious as to “adversely affect the public’s perception 

of the fairness and integrity of the military justice system.” United States v. 

Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). After balancing the Barker factors, 

we find no prejudice and no violation of Appellant’s due process rights.

Recognizing our authority under Article 66(d)(2), UCMJ, we have also 

considered whether relief for excessive post-trial delay is appropriate even in 

the absence of a due process violation. See United States v. Tardif, 57 M.J. 219, 

225 (C.A.A.F. 2002). After considering the factors enumerated in United States 

v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 

2016), we conclude it is not.

B. Ineffective Assistance of Counsel

1. Additional Background

Appellate personally raises two grounds for ineffective assistance of trial 

defense counsel in that Appellant’s trial defense counsel: (1) failed to object to 

the stipulation of fact that contained some material related to uncharged 

sexual misconduct; and (2) provided erroneous legal advice during clemency. 
United States v. Mitchell, No. ACM 39794

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On 7 August 2020, our court ordered both of Appellant’s trial defense 

counsel, Mr. WK and Captain (Capt) MM, to provide responsive declarations. 

We have considered whether a post-trial evidentiary hearing is required to 

resolve any factual disputes between Appellant’s assertions and his trial 

defense team’s assertions. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 

1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967). We find a 

hearing unnecessary to resolve Appellant’s claims.

2. Law

The Sixth Amendment guarantees an accused the right to effective 

assistance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). 

In assessing the effectiveness of counsel, we apply the standard set forth in 

Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the 

presumption of competence announced in United States v. Cronic, 466 U.S. 

648, 658 (1984). See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 

M.J. 312, 315 (C.A.A.F. 2000)). We review allegations of ineffective assistance 

de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United 

States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)). 

We utilize the following three-part test to determine whether the 

presumption of competence has been overcome:

1. Are appellant’s allegations true; if so, “is there a reasonable 

explanation for counsel’s actions”?

2. If the allegations are true, did defense counsel’s level of 

advocacy “fall measurably below the performance . . . [ordinarily 

expected] of fallible lawyers”?

3. If defense counsel was ineffective, is there “a reasonable 

probability that, absent the errors,” there would have been a 

different result?

Id. (alterations in original) (quoting United States v. Polk, 32 M.J. 150, 153 

(C.M.A. 1991)). The burden is on the appellant to demonstrate both deficient 

performance and prejudice. United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 

2012) (citation omitted).

 The United States Supreme Court has defined the prejudice element of an 

ineffective assistance of counsel claim as

focus[ing] on the question whether counsel’s performance 

renders the result of the trial unreliable or the proceedings 

fundamentally unfair. Unreliability or unfairness does not 

result if the ineffectiveness of counsel does not deprive the 

defendant of a substantive or procedural right to which the law 

entitles him.
United States v. Mitchell, No. ACM 39794

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Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citations omitted). 

“Defense counsel do not perform deficiently when they make a strategic 

decision to accept a risk or forego a potential benefit, where it is objectively 

reasonable to do so.” Datavs, 71 M.J. at 424 (citing Gooch, 69 M.J. at 362–63) 

(additional citation omitted). In reviewing the decisions and actions of trial 

defense counsel, this court does not second-guess strategic or tactical decisions. 

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

omitted). It is only in those limited circumstances where a purported 

“strategic” or “deliberate” decision is unreasonable or based on inadequate 

investigation that it can provide the foundation for a finding of ineffective 

assistance. See United States v. Davis, 60 M.J. 469, 474 (C.A.A.F. 2005).

When an appellant alleges ineffective assistance of counsel after pleading 

guilty at trial, an appellant must show “a reasonable probability that, but for 

counsel’s errors, he would not have pleaded guilty and would have insisted on 

going to trial.” United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012) (quoting

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

In the context of post-trial processing, an appellant must make “some 

colorable showing of possible prejudice.” United States v. Lee, 52 M.J. 51, 53 

(C.A.A.F. 1999) (citing United States v. Wheelus, 49 M.J. 284, 289 (C.A.A.F. 

1998)). An appellant must demonstrate prejudice by more than “sheer

speculation.” United States v. Brown, 54 M.J. 289, 293 (C.A.A.F. 2003).

3. Analysis

We find each of the claims of ineffective assistance of counsel to be without 

merit.

a. Failure to Object to the Stipulation of Fact

Appellant’s first contention is that his trial defense counsel were ineffective 

by failing to object to the stipulation of fact. Appellant claims that the DC3/CFL

report, which was attached to the stipulation of fact, contained evidence of 

uncharged misconduct, specifically that Appellant had exposed his penis to a 

13-year-old girl during a video chat.6 In his declaration, Appellant states that 

he was assured by his trial defense counsel that information relating to the

“indecent exposure allegation would not be presented at trial.” Appellant now 

asserts that had he realized that some information was contained in an 

attachment to the stipulation of fact, he would not have signed the document.

Appellant does not state in his declaration that he would have withdrawn from 

the PTA and not pleaded guilty. Appellant also does not deny he was afforded 

 6 The Charge and Specification concerning Appellant’s alleged indecent exposure of his 

genitalia to a 13-year-old girl, an alleged violation of Article 120c, UCMJ, 10 U.S.C. § 

920c, was dismissed prior to the referral of charges on 3 June 2019. 
United States v. Mitchell, No. ACM 39794

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the opportunity to review the stipulation of fact and its attachments before he 

signed the document.

Both of Appellant’s trial defense counsel provided declarations on this 

issue. As addressed by both counsel, the process of negotiating the stipulation 

of fact was complex. They explained that in order for Appellant to keep the 

benefit of the PTA, he was required to enter into a reasonable stipulation of 

fact. They explained that their primary focus was to limit the number of images 

presented to the military judge, highlight mitigating factors such as 

Appellant’s cooperation with investigators, and minimize the inclusion of 

damaging facts. Capt MM stated that he argued against the inclusion of the 

DC3/CFL report as an attachment to the stipulation of fact, but felt that in 

order to maintain the benefit of the PTA, it was not unreasonably harmful that

the DC3/CFL report was included as an attachment. Both counsel stated that 

Appellant was provided an opportunity to review the stipulation of fact and its 

attachments the night before trial and that he had as much time as he needed 

to review them. Both counsel stated that Appellant had a number of concerns 

regarding the stipulation of fact, but the concerns were largely based on his 

desire to have the quantity of legal pornography he possessed included in the 

stipulation. Mr. WK attached an email to his declaration that he sent to trial 

counsel in the case that demonstrates Appellant’s primary concern at the time 

of trial was including mitigating evidence in the stipulation of fact. Both trial 

defense counsel also provided that Appellant never objected to the inclusion of 

the DC3/CFL report as an attachment.

At trial, Appellant was again provided the opportunity to review the 

stipulation of fact, including all of the attachments. The military judge, sua 

sponte, took a recess to give Appellant additional time to review the stipulation 

of fact and its attachments. Appellant then confirmed to the military judge that 

he had reviewed the stipulation of fact, including the attachments, and that 

everything in the stipulation of fact was true. The military judge specifically 

asked Appellant “[i]s there anything in the stipulation that you do not wish to 

admit is true?” Appellant answered “No, Your Honor.” Trial defense counsel

was then asked if they had any objections to the stipulation of fact and replied 

“No, Your Honor.”

We find that Appellant has failed to meet his burden of showing deficient 

performance. The declarations and attachments submitted by trial defense 

counsel indicate that they made reasonable tactical decisions in the negotiation 

of both the PTA and the stipulation of fact, including the decision on what 

documents would be attached to the stipulation of fact. They did so as part of 

extensive negotiations in which they managed to limit the number of highly 

prejudicial images the military judge would view, and also ensured that 

significant mitigating evidence was included in the stipulation of fact. This 
United States v. Mitchell, No. ACM 39794

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court will not second guess reasonable tactical decisions by defense counsel.

There are reasonable explanations for defense counsel’s actions and advice, 

and their individual and combined level of advocacy on Appellant’s behalf was 

not “measurably below the performance ordinarily expected of fallible 

lawyers.” Polk, 32 M.J. at 153.

Furthermore, Appellant has not demonstrated that there were any false 

communications between himself and his trial defense counsel. Appellant, on 

the record, stated to the military judge that he was satisfied with his defense 

counsel’s advice and with his defense counsel. Furthermore, Appellant was 

provided at least two extended opportunities to review the stipulation of fact 

and its attachments and never expressed any concern. There is nothing in the 

record that demonstrates that Appellant did not have time to review the 

stipulation of fact or that he had any objection to the document or its 

attachments. To the contrary, Appellant told the military judge that he had 

enough time to review the stipulation and its attachments and he wished to 

admit it was true. Finally, we see no evidence in the record to suggest a 

reasonable probability that, but for defense counsel’s errors, Appellant would 

not have pleaded guilty and would have insisted on going to trial. In fact, the 

record demonstrates the opposite—that Appellant knowingly and willingly 

pleaded guilty at trial in order to receive the benefits of his PTA.

Even if we were to find that trial defense counsel were ineffective, 

Appellant has failed to meet his burden to demonstrate prejudice. Appellant 

claims on appeal that had this information regarding his alleged indecent 

exposure not been attached to the stipulation of fact, his sentence would have 

been less severe. We disagree and note that nothing in the record supports this 

argument. It is a “well-established rule that military judges are presumed to 

know the law and to follow it absent clear evidence to the contrary.” United 

States v. Hukill, 76 M.J. 219, 221 (C.A.A.F. 2017). In this case, Appellant was 

sentenced by a military judge, and has offered no evidence to rebut the 

presumption. Appellant has presented no evidence that the military judge 

abdicated his role or that he inappropriately sentenced Appellant on the basis 

of a charge for which he was not convicted. Moreover, trial counsel did not 

argue that Appellant should be sentenced based on the conduct in the 

dismissed charge; in fact, trial counsel did not mention the DC3/CFL report at 

all during sentencing. Finally, other than being referenced in the DC3/CFL 

report, the indecent exposure allegation was not referenced in the body of the 

stipulation, discussed during the providence inquiry, or otherwise raised 

during the sentencing proceedings. We conclude that Appellant has failed to 

demonstrate that there would have been a different result. 
United States v. Mitchell, No. ACM 39794

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b. Incorrect Legal Advice Regarding Clemency

Appellant next contends that his defense counsel erred when they advised 

him that the convening authority had the power to mitigate his term of 

confinement in clemency. Appellant claims that had he been advised correctly,

he would not have asked the convening authority to reduce his adjudged 

confinement to 12 months and instead would have made a different request for 

relief, specifically a change in his reduction in grade.

Both trial defense counsel, in their declarations, assert that they advised 

Appellant that the convening authority was not able to grant clemency for his 

sentence to confinement. Capt MM explained that, despite his advice, 

Appellant was “emotional” about the length of confinement and desired to 

request a reduction in confinement despite his advice that the convening 

authority could not grant such a request. Capt MM stated, “[i]n my judgment 

given [Appellant’s] emotional state, it was beneficial for [him] to feel like he 

had done everything he could to get what he desired. In short, it was better to 

ask than to regret not asking.” For this reason, Capt MM stated that he 

included in Appellant’s clemency request a plea that Appellant’s sentence be 

“lowered to 12 months.” Additionally, Capt MM stated that he “also included a 

catch-all request that [Appellant] be shown ‘whatever leniency’ the [c]onvening

[a]uthority could give.” Finally, Capt MM provided that after Appellant 

reviewed the draft clemency request, Appellant “thanked [him] profusely and 

said it was more than he had hoped for.”

Appellant has failed to meet his burden of demonstrating deficient 

performance in this case. The declarations submitted by trial defense counsel 

indicate that there are reasonable explanations for defense counsel’s actions 

and advice. Furthermore, we are not persuaded that their individual and 

combined level of advocacy on Appellant’s behalf was “measurably below the 

performance ordinarily expected of fallible lawyers.” Polk, 32 M.J. at 153.

Appellant’s defense counsel made a reasonable decision to include in the 

clemency request both a plea for reduced confinement and “whatever leniency”

the convening authority could grant. We will not second guess reasonable 

tactical decisions. Appellant has not demonstrated that his request foreclosed 

the possibility of other relief that the convening authority could grant.

Again, even if we were to find that trial defense counsel were ineffective, 

Appellant has also failed to meet his burden to demonstrate that there would 

have been a different result. Appellant states that he was prejudiced in that 

had he been made aware that the convening authority could not grant relief to 

mitigate his term of confinement, he would have requested different relief. We 

are not persuaded by Appellant’s argument.
United States v. Mitchell, No. ACM 39794

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First, the fact that Appellant did not limit his clemency request to only 

mitigating his term of confinement cuts against his argument on appeal. In 

addition to asking the convening authority to mitigate his confinement, 

Appellant specifically asked the convening authority to “grant whatever 

leniency” he could. This left open the option for other forms of relief, as opposed 

to his personal request to mitigate his confinement. Second, Appellant’s trial 

defense counsel also submitted a separate memorandum requesting 

deferment, reduction of the sentence, and waiver—in accordance with the 

PTA—and the convening authority provided the requested action. This 

demonstrates the convening authority’s willingness to consider all forms of 

clemency. Third, we note that Appellant’s trial defense counsel did not request 

a reduction in Appellant’s sentence to confinement in their memorandum, 

instead asking for “leniency” in general. This fact supports their declarations 

that they knew the convening authority could not grant such a request and 

that they sought to broaden the clemency request to reach actions the 

convening authority could permissibly take.

Finally, there is no evidence in the record that the convening authority was 

improperly advised in this case. In fact, Appellant’s clemency request did not 

reference any law or limitations on the convening authority’s ability to grant 

clemency. We rely on the “presumption of regularity” for the convening 

authority’s exercise of his responsibilities on clemency. See United States v. 

Wise, 20 C.M.R. 188, 194 (C.M.A. 1955). Here, the convening authority’s

decision on action demonstrated that the convening authority took appropriate 

action on the sentence, as required by the PTA and Article 60, UCMJ, 10 U.S.C. 

§ 860. He consulted with his staff judge advocate, and considered all of the 

matters submitted by Appellant. There is no basis to infer that he was unaware 

that he had the ability to mitigate Appellant’s reduction in grade, given his 

appropriate exercise of all other responsibilities. Moreover, Appellant has 

presented no argument for prejudice beyond a speculative comment that “there 

is a possibility that the convening authority could have reduced or commuted 

the reduction in rank.” We find this to be “sheer speculation,” see Brown, 54 

M.J. at 293, particularly in light of the specific clemency request and the 

convening authority’s subsequent actions. Appellant has failed to demonstrate 

prejudice and therefore is not entitled to relief.

C. Sentence Appropriateness

Appellant contends his sentence is inappropriately severe in light of his 

record of service and asks this court to engage in a comparative sentence 

review.7 We disagree and find Appellant’s sentence appropriate. 

 7 To the extent that Appellant asks this court to consider matters not presented during 

the presentencing hearing or in his clemency to the convening authority, those matters
United States v. Mitchell, No. ACM 39794

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This court “may affirm only . . . the sentence or such part or amount of the 

sentence, as it finds correct in law and fact and determines, on the basis of the 

entire record, should be approved.” Article 66(d)(1), UCMJ, 10 U.S.C. 

§ 866(d)(1). We review sentence appropriateness de novo, employing “a 

sweeping Congressional mandate to ensure ‘a fair and just punishment for 

every accused.’” United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005)

(citations omitted). We are tasked with ensuring Appellant receives the right 

amount of punishment for his offenses. See United States v. Barker, 28 M.J. 

121, 122 (C.M.A. 1989). 

In determining whether a sentence is appropriate, we consider the 

“particular appellant, the nature and seriousness of the offense, the appellant’s 

record of service, and all matters contained in the record of trial.” United States 

v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009). We have a great deal 

of discretion in determining whether a particular sentence is appropriate, but 

we are not authorized to engage in exercises of clemency. United States v. 

Healy, 26 M.J. 394, 395–96 (C.M.A. 1988).

A sentence comparison is required if Appellant can demonstrate that (1)

the cited cases are “closely related” to his case, and (2) the sentences are “highly 

disparate.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). Cases are 

“closely related” when they include “coactors involved in a common crime, 

servicemembers involved in a common or parallel scheme, or some other direct 

nexus between the servicemembers whose sentences are sought to be 

compared.” Id.

In the present case, Appellant has failed to demonstrate that the six cases 

cited in his Grostefon brief are “closely related” to his case. Appellant has not 

presented any evidence that the other cases he cited involve co-actors, common 

schemes, or any direct nexus to his case. Additionally, Appellant has not 

provided any information as to the unique facts and circumstances of these 

cases or any mitigating or extenuating factors which might have been present 

in those cases. Therefore, we find that a sentence comparison is neither 

required nor helpful.

After conducting a review of the entire record, we find that the adjudged 

and approved sentence is appropriate. In reaching this conclusion, we 

considered Appellant’s unsworn statement, his enlisted performance reports, 

the defense exhibits submitted at trial, and all the matters submitted by 

Appellant during clemency. We also considered the facts of the offense to which 

Appellant pleaded guilty and all other properly admitted matters. Appellant 

faced a maximum sentence that included confinement for ten years and a 

 

may not be considered by this court in assessing sentence appropriateness. See Jessie, 

79 M.J. at 444.
United States v. Mitchell, No. ACM 39794

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dishonorable discharge. Appellant’s PTA limited the maximum term of 

confinement to 30 months and explicitly stated that the punitive discharge 

could “be approved as adjudged.” The fact that Appellant knowingly and 

voluntarily entered into an agreement with the convening authority which 

allowed for 30 months of confinement and a dishonorable discharge to be 

adjudged and approved undercuts his assertion on appeal that his sentence is 

inappropriately severe. We find Appellant’s approved sentence of a 

dishonorable discharge, confinement for 26 months, and reduction to the grade 

of E-1 is appropriate for the crime he committed.

III. CONCLUSION

The findings and sentence as entered are correct in law and fact, and no 

error materially prejudicial to Appellant’s substantial rights occurred. Articles 

59(a) and 66(d), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(d). 

Accordingly, the findings and sentence are AFFIRMED.8

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

 8 We note the Statement of Trial Results in this case failed to include the command 

that convened the court-martial as required by R.C.M. 1101(a)(3). Appellant has made 

no claim of prejudice, and we find none. See United States v. Moody-Neukom, No. ACM 

S32594, 2019 CCA LEXIS 521, at *2–3 (A.F. Ct. Crim. App. 16 Dec. 2019) (per curiam) 

(unpub. op.).