United States v. Private JACOB B. POWELL, ARMY 20150775

Background

Appellant (Pvt. Jacob B. Powell) pleaded guilty at a general court-martial to two specifications of sexual abuse of a child (offenses committed April 2014) and was sentenced to a bad-conduct discharge, 12 months confinement, and reduction to E-1; the convening authority approved confinement of 10 months per a pretrial agreement.
In January 2016 defense counsel submitted R.C.M. 1105 clemency matters but erroneously told the convening authority that the 2014 NDAA changes to Article 60, UCMJ barred any early-release/clemency for confinement beyond six months. Appellant therefore did not expressly request a sentence reduction below the 10-month PTA term.
The Staff Judge Advocate (SJAR and addendum) correctly advised the convening authority that, because the offenses occurred in April 2014, Article 60 limitations did not apply and the convening authority retained discretion to disapprove, commute, or suspend any part of the adjudged sentence.
The convening authority denied appellant’s requests for deferral/waiver of reduction in grade and forfeitures and approved the sentence consistent with the pretrial agreement.
Appellant claimed ineffective assistance of counsel in the post-trial phase, arguing counsel’s misstatement of Article 60 deprived him of a possible sentence reduction that would have allowed him to attend the birth of his child.
The Army Court reviewed the ineffective-assistance claim de novo and applied Strickland and post-trial ineffective-assistance precedents requiring a showing of "some colorable showing of possible prejudice."

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defense counsel’s erroneous statement about Article 60 constituted deficient performance in post-trial matters	Counsel misstated convening authority’s clemency power by saying Article 60 barred any relief; this was deficient	Counsel erred, but SJAR/Addendum provided correct legal advice to the convening authority; counsel nonetheless submitted clemency matters	Court: counsel was deficient in misstating Article 60
Whether appellant showed prejudice from counsel’s error (i.e., clemency would likely have been different)	But for the error, convening authority might have disapproved/commuted confinement so appellant could attend birth of child	No reasonable probability or colorable showing that convening authority would have reduced sentence—SJA correctly advised CA and CA denied other clemency requests	Court: appellant failed to show colorable prejudice; no relief granted
Whether failure to submit a specific sentence-reduction request on top of submitted materials amounted to denial of post-trial effective assistance	Appellant contends advancement of his specific reduction request could have altered outcome	Record contained pregnancy/ultrasound and other clemency materials; CA expressly denied requested deferrals/waivers after correct legal advice	Court: no per se violation; here no reasonable likelihood CA would have granted greater clemency

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance: deficient performance and prejudice)
United States v. Captain, 75 M.J. 99 (C.A.A.F. 2016) (post-trial ineffective-assistance standard and review)
United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001) (effective assistance extends to post-trial proceedings)
United States v. Lee, 52 M.J. 51 (C.A.A.F. 1999) (post-trial prejudice requires some colorable showing)
United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998) (post-trial ineffective-assistance prejudice standard)
United States v. Rosenthal, 62 M.J. 261 (C.A.A.F. 2005) (application of colorable-showing requirement)
United States v. Lowe, 58 M.J. 261 (C.A.A.F. 2003) (no per se rule; must show potential to alter CA action)
United States v. Brown, 54 M.J. 289 (C.A.A.F. 2000) (speculation insufficient to show prejudice)
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (matters personally raised by appellant on appeal)