United States v. Bennett

Opinion

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS ________________________

No. ACM S32733 ________________________

UNITED STATES Appellee v. Jacob R. BENNETT Airman Basic (E-1), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 1 December 2023 ________________________

Military Judge: Brian C. Mason. Sentence: Sentence adjudged 25 May 2022 by GCM convened at Wright- Patterson Air Force Base, Ohio. Sentence entered by military judge on 27 June 2022: Bad-conduct discharge, confinement for 210 days, and a reprimand. For Appellant: Major Eshawn R. Rawlley, USAF. For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant Colonel Matthew J. Neil, USAF; Captain Jocelyn Q. Wright, USAF; Mary Ellen Payne, Esquire. Before CADOTTE, RICHARDSON, and ANNEXSTAD, Appellate Mili- tary Judges. Senior Judge CADOTTE delivered the opinion of the court, in which Senior Judge RICHARDSON and Senior Judge ANNEXSTAD joined. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ United States v. Bennett, No. ACM S32733

CADOTTE, Senior Judge: A military judge sitting as a general court-martial convicted Appellant, in accordance with his pleas and pursuant to a plea agreement, of one specifica- tion each of failing to obey a lawful order, violating a lawful general regulation, wrongful use of marijuana, wrongful use of cocaine, wrongful possession of ma- rijuana, wrongful possession of cocaine, wrongful introduction of marijuana, and wrongful introduction of cocaine, in violation of Articles 92 and 112a, Uni- form Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a.1 The military judge sentenced Appellant to a bad-conduct discharge, confinement for 210 days, and a reprimand. The convening authority took no action on the findings or sentence. Appellant raises two assignments of error: (1) whether the Government has proven Appellant was served with the record of trial; and (2) whether trial de- fense counsel were ineffective during post-trial processing when they failed to ask the convening authority to defer or waive the automatic forfeiture of Ap- pellant’s pay for his or his dependent’s benefit. We carefully considered issue (1) and find it does not warrant discussion or relief. See United States v. Guinn, 81 M.J. 195, 204 (C.A.A.F. 2021) (citing United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987)). We find no error that materially prejudiced Appellant’s substantial rights, and we affirm the findings and sentence.

I. BACKGROUND Appellant received written advice from trial defense counsel regarding his post-trial and appellate rights. That advice informed Appellant of his right to ask the convening authority to defer any adjudged and automatic forfeitures. Appellant was also advised of his right to ask the convening authority to waive any or all automatic forfeitures for the purpose of providing support for his dependents. Appellant signed on the last page of the written advice, represent- ing, “I have read and understand my post-trial rights and appellate rights, as stated above.” Trial defense counsel confirmed on the record that Appellant received this advice “orally and in writing.” The military judge asked Appellant whether he had “any questions at all” about his post-trial and appellate rights, and Appellant replied in the negative. At trial, the Government introduced a personal data sheet into evidence which documented that Appellant had two dependents. Appellant also dis- cussed his children during his oral unsworn statement and offered photo- graphs of his children.

1 Unless otherwise noted, all references in this opinion to the UCMJ are to the Manual

for Courts-Martial, United States (2019 ed.).

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On 6 June 2022, trial defense counsel submitted matters to the convening authority which did not contain a request for deferment or waiver of automatic forfeitures. Appellant did not personally submit a deferral or waiver request to the convening authority.

II. DISCUSSION A. Law The Sixth Amendment2 guarantees an accused the right to effective assis- tance 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 out in Strick- land 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 (citation omitted). We will not second-guess reason- able strategic or tactical decisions by trial defense counsel. United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009) (citation omitted). We review allega- tions of ineffective assistance de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing Mazza, 67 M.J. at 474). To determine whether the presumption of competence has been overcome, we utilize the following three-part test: (1) Are the appellant’s allegations true[, and] if so, “is there a reasonable explanation for counsel’s actions;” (2) If the allega- tions are true, did [trial] defense counsel’s level of advocacy “fall measurably below the performance . . . [ordinarily expected] of fallible lawyers;” [and] (3) If [trial] defense counsel w[ere] inef- fective, is there “a reasonable probability that, absent the er- rors,” there would have been a different result?” Id. (third alteration and omission 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) (cita- tion omitted). “[C]ourts ‘must indulge a strong presumption that counsel’s con- duct falls within the wide range of reasonable professional assistance.’” Id. (quoting Strickland, 466 U.S. at 689) (additional citation omitted). With re- spect to prejudice, a “reasonable probability” of a different result is “a proba- bility sufficient to undermine confidence in the outcome” of the trial. Id. (quot- ing Strickland, 466 U.S. at 694) (additional citation omitted).

2 U.S. CONST. amend. VI.

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B. Analysis Appellant asserts that his trial defense counsel were ineffective in failing to request deferment or waiver of automatic forfeitures. We find Appellant fails to meet his burden to show that his counsel’s performance was deficient, much less that he suffered prejudice. We see nothing in the record to support that, prior to submitting matters to the convening authority, Appellant instructed his counsel to request a de- ferment or waiver of forfeitures. Appellant has presented no evidence that his counsel’s clemency submission on his behalf was not what he wanted at the time. In a prior opinion where an appellant similarly alleged ineffective assis- tance of counsel, a panel of this court concluded: Appellant has the burden to show he directed trial defense coun- sel to submit a deferment or waiver request, who then failed to comply with his instructions. Appellant has not met that burden. Even on appeal, Appellant offers no declaration to bring infor- mation to the attention of the court. On this record, there is no basis to conclude that Appellant sought, much less wanted, or would have received relief he now claims trial defense counsel was deficient in failing to obtain. United States v. Velasquez, No. ACM 40056, 2022 CCA LEXIS 414, at *7 (A.F. Ct. Crim. App. 19 Jul. 2022) (unpub. op.), rev. denied, 83 M.J. 103 (C.A.A.F. 2022). We believe the reasoning in Velasquez applies here.

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), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court