United States v. Golden-Franklin, 201600303

Appellant pleaded guilty at a general court-martial to sexual assault; sentence: 42 months confinement, reduction to E-1, dishonorable discharge; CA approved sentence but, per a pretrial agreement, suspended confinement in excess of 18 months.
Trial defense counsel submitted a clemency request asking the convening authority (CA) to disapprove all confinement over 12 months, citing Article 60, UCMJ, as authority to disapprove/commute/suspend confinement up to six months.
The SJA recommended approval of the sentence as adjudged and to execute consistent with the pretrial agreement; an SJA addendum did not correct defense counsel’s Article 60 statement.
The CA considered the submissions, denied the clemency request, and approved the sentence as adjudged.
Appellate court reviewed whether post-trial counsel rendered ineffective assistance by requesting relief the CA no longer had authority to grant under amended Article 60, UCMJ, and whether any such error prejudiced the appellant.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether post-trial counsel was ineffective for requesting clemency the CA lacked authority to grant	Counsel asked CA to disapprove confinement >12 months citing Article 60 authority	CA/SJA implicitly argued Article 60 limits prevented granting that relief; CA denied request	Counsel’s request misapplied Article 60, but appellate court found no colorable showing of prejudice; no relief granted
Whether appellant was materially prejudiced by counsel’s unauthorized clemency request	Appellant argued counsel’s error could have affected CA action	Appellee argued appellant showed no specific prejudice or contrary wishes	No material prejudice shown; ineffective-assistance claim fails
Whether the CA’s action was lawful despite defense counsel’s incorrect clemency theory	Implicit: CA might have been influenced by submission	CA maintained discretion and considered record, pretrial agreement, and SJA recommendations	CA’s approval affirmed as within authority; action lawful
Whether appellant should have received alternative clemency (e.g., rank reduction relief)	Appellant suggested potential alternative clemency could exist	Government noted limited CA discretion and lack of evidence appellant desired or was advised about alternatives	Appellant failed to identify what CA might have done; no prejudice shown

Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
United States v. Scott, 24 M.J. 186 (C.M.A. 1987) (right to effective assistance of counsel under Article 27)
United States v. Cornett, 47 M.J. 128 (C.A.A.F. 1997) (post-trial effective assistance extends beyond trial)
United States v. Datavs, 71 M.J. 420 (C.A.A.F. 2012) (de novo review of performance and prejudice elements)
United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007) (presumption counsel’s conduct is reasonable)
United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998) (standard for showing colorable prejudice in post-trial ineffective-assistance claims)
United States v. Kruse, 75 M.J. 971 (N-M. Ct. Crim. App. 2016) (CA action disapproving confinement beyond Article 60 limits is ultra vires)
United States v. Capers, 62 M.J. 268 (C.A.A.F. 2005) (appellant must describe what CA might have done to provide clemency)
United States v. Starling, 58 M.J. 620 (N-M. Ct. Crim. App. 2003) (bare allegations of inadequate representation insufficient without affidavit)
United States v. Pierce, 40 M.J. 149 (C.M.A. 1994) (vague assertions about what appellant would have submitted to CA are insufficient)