UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201600116

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UNITED STATES OF AMERICA

Appellee

v.

JOSHUA J. GARCIA

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 Leon J. Francis, USMC.

For Appellant: Major Jason L. Morris, USMCR.

For Appellee: Lieutenant Commander Justin C. Henderson, JAGC, 

U.S. Navy; Lieutenant James M. Belforti, JAGC, USN.

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Decided 15 December 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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HUTCHISON, Judge:

A military judge sitting as a special court-martial convicted the appellant, 

consistent with his pleas, of one specification of failing to obey a lawful 

general order,1 one specification of abusive sexual contact, and one 

specification of assault consummated by battery in violation of Articles 92, 

120, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 

920, and 928. The military judge sentenced the appellant to 12 months’

 

1 Marine Corps Order 1700.22F at ¶ 4.a.(1)(g)1 (3 Dec 2009), by wrongfully 

consuming alcohol while under the age of 21.
United States v. Garcia, No. 201600116

2

confinement, reduction to pay grade E-1, and a bad-conduct discharge. The 

convening authority (CA) approved the sentence as adjudged. 

Upon review, we specified one issue: whether the appellant received the 

effective assistance of counsel in his post-trial representation when detailed 

defense counsel requested relief outside the authority of the CA to grant. 

After considering the pleadings and an affidavit from trial defense counsel, 

we affirm the findings and sentence. 

I. BACKGROUND

The appellant, Lance Corporal (LCpl) JS, and two other Marines spent 

the evening of 13 March 2015 and early morning hours of 14 March 2015 at a

club in Pearl Harbor. Both before and during his time at the club, the 

appellant—only 20 years old at the time—consumed beer and hard liquor. 

While at the club, the appellant repeatedly made sexual advances towards 

LCpl JS. LCpl JS responded several times that “she was not interested in 

[him] sexually.”2 Eventually, LCpl JS asked the other two Marines to 

intervene in order to prevent the appellant from continuing to bother her. 

Upon returning to the barracks onboard Marine Corps Base Hawaii, and 

despite his earlier failed attempts to court LCpl JS, the appellant made his 

way to LCpl JS’s room, knocked on the door and then barged his way in when 

she answered. Once inside LCpl JS’s room, and despite her repeated 

protestations for him to stop and to leave, the appellant kissed LCpl JS on 

the neck and fondled her inner thigh, groin and genitalia.3 

The appellant pleaded guilty pursuant to a pretrial agreement, which 

provided, in part, that both a punitive discharge and any confinement “[m]ay 

be approved as adjudged.”4 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 suspend “confinement in excess of 9 months” and “that the [b]ad[-c]onduct 

[d]ischarge be disapproved.”5

II. DISCUSSION

The National Defense Authorization Act for Fiscal Year 20146 amended 

Article 60(c)(4), UCMJ, and restricted the CA’s authority to modify sentences 

 

2 Record at 22. 

3 Id.

4 Appellate Exhibit 3 at 1.

5 Clemency Request of 18 Feb 16 at 1.

6 Pub. L. No. 113-66, 127 Stat. 672 (2013).
United States v. Garcia, No. 201600116

3

for all but the most minor offenses committed on or after 24 June 2014. 

Specifically, the changes to Article 60(c)(4), UCMJ, prohibit CAs from 

“disapprov[ing], commut[ing], or suspend[ing] 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” unless certain exceptions 

(which are not relevant to this case) exist.7 As a result, in this case the CA’s

discretion to modify the appellant’s adjudged sentence was limited to action 

on the reduction in pay grade.8 The CA could also defer the automatic 

forfeiture of pay imposed pursuant to Article 58b, UCMJ. The CA could not, 

however, suspend confinement or disapprove the bad-conduct discharge as 

requested. 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 right to effective assistance of counsel at courts-martial is guaranteed 

by the Sixth Amendment and by Article 27, UCMJ, 10 U.S.C. § 827. United 

States v. Hicks, 47 M.J. 90, 92 (C.A.A.F. 1997). That right extends to posttrial proceedings. United States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). 

Indeed, “[o]ne of counsel’s fundamental duties after trial is to consider and 

submit, if appropriate, a petition for clemency to the convening authority on 

his client’s behalf.” United States v. Cobe, 41 M.J. 654, 655 (N-M. Ct. Crim. 

App. 1994) (citations omitted).

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) (citation and internal quotation 

marks omitted). However, we “must indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional 

assistance[.]” 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 of “not functioning as the counsel 

guaranteed . . . by the Sixth Amendment” and (2) that the deficient 

performance prejudiced the defense. United States v. Tippit, 65 M.J. 69, 76 

(C.A.A.F. 2007) (citations and internal quotation marks omitted). “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).

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). 

 

7 Id. at 956-57.

8 The CA was also prohibited from disapproving the findings. See Art. 60(c)(3), 

UCMJ.
United States v. Garcia, No. 201600116

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Moreover, “[w]e do not measure deficiency based on the success of a trial 

defense counsel’s strategy, but instead examine whether counsel made an 

objectively reasonable choice in strategy from the available alternatives.” 

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

internal quotation marks omitted). “[S]trategic choices made by trial defense 

counsel are ‘virtually unchallengeable’ after thorough investigation of the law 

and the facts relevant to the plausible options.” Id. at 371 (quoting 

Strickland, 466 U.S. at 690-91).

Consequently, “bare allegations” of “inadequate representation for failure 

to exercise . . . post-trial rights” are not “seriously entertained” by this court, 

“without the submission of an affidavit by the appellant stating how counsel’s 

inaction contrasted with his wishes.” United States v. Starling, 58 M.J. 620, 

622-23 (N-M. Ct. Crim. App. 2003). Where trial defense counsel, by contrast,

submits an affidavit, and “[t]he factual assertions in the affidavit provide a 

‘reasonable explanation for counsel’s actions,’” this heavily “weighs against 

the appellant overcoming the presumption of competence” of counsel. United 

States v. Wilkerson, No. 201200438, 2013 CCA LEXIS 367, at *7, unpublished 

op. (N-M. Ct. Crim. App. 30 April 2013) (per curiam) (quoting United States v. 

Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000)).

Here, the appellant asserts that trial defense counsel’s performance was 

“constitutionally deficient” for “fail[ing] to request sentence relief the CA had 

the power to grant.”9 However, the appellant did not submit an affidavit 

stating how trial defense counsel’s submission violated his wishes, if at all. 

By contrast, trial defense counsel’s affidavit provided context to the clemency 

request and explained the “tactical decision to focus [the] request for 

clemency on allowing for meaningful relief should the new Article 60 ever be 

successfully challenged.”10 Trial defense counsel noted that after much 

discussion within the world-wide defense community, there was consensus 

that Article 60, UCMJ, might be susceptible to appellate challenges. As a 

result, defense counsel were reportedly encouraged to seek clemency even 

when it was not authorized in order to “preserve the issue for appeal and 

signal [the defense bar’s] opposition to the modifications to Article 60,”

UCMJ.11 More importantly, trial defense counsel asserts–without 

contradiction from the appellant–that he fully discussed this strategy with 

 

9 Appellant’s Brief of 23 Sep 2016 at 4.

10 Appellee’s Motion to Attach of 2 Nov 2016, Trial Defense Counsel’s Affidavit at 

¶ 6 (emphasis added).

11 Id. at ¶ 7.
United States v. Garcia, No. 201600116

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the appellant and received the appellant’s approval prior to submitting the

clemency request to the CA.12

“[W]e cannot say [trial defense counsel’s] path here was objectively 

unreasonable, particularly when there is no indication that it was 

inconsistent with the appellant’s wishes.” United States v. Ouillette, No. 

201600075, 2016 CCA LEXIS 481, at *9 unpublished op. (N-M. Ct. Crim. 

App. 16 Aug 2016). Therefore, we conclude that the appellant has failed to

demonstrate that his counsel’s performance was deficient, and we need not 

reach the issue of whether appellant’s rights were prejudiced.

III. CONCLUSION

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

supplemental promulgating order will reflect that the appellant was 

arraigned and tried on 30 November 2015, vice 11 December 2015. United 

States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).

Senior Judge CAMPBELL and Judge RUGH concur.

 

12 Id. at ¶ 10. Trial defense counsel explained that the appellant expressed no 

interest in avoiding automatic forfeitures or restoring his rank, but was, instead, 

focused on avoiding the punitive discharge.

 For the Court 

 R.H. TROIDL 

 Clerk of Court