Opinion of the Court
During Dеcember of 1990, appellant was tried by a general court-martial composed of officer and enlisted members at Scott Air Force Base, Illinois. Contrary to his pleas, he was found guilty of involuntary manslaughter of his infant daughter, in violation of Article 119, Uniform Code of Military Justice, 10 USC § 919. On December 7, 1990, he was sentenced to a bad-conduct discharge, hard labоr without confinement for 90 days, and reduction to E-3. On February 11, 1991, the convening authority approved the adjudged sentence. On October 7, 1992, the Court of Military Review affirmed the findings of guilty and the sentence in an unpublished opinion.
This Court, on August 18, 1993, granted review оn the following question of law raised by appellate defense counsel:
*150 WHETHER APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS CIVILIAN COUNSEL’S UNILATERAL DECISION TQ WAIVE SUBMITTING POST-TRIAL MATTERS TO THE CONVENING AUTHORITY.
We hold that appellant was not dеnied effective assistance of counsel. Any error by civilian counsel in waiving appellant’s right to submit post-trial mattеrs to the convening authority has not been shown by appellant to be prejudicial. United States v. DeGrocco,
The Court of Military Review found the fоllowing facts concerning the granted issue:
Appellant’s civilian defense counsel indicated he would be respоnsible for post-trial matters. In receipting for the Staff Judge Advocate’s Recommendation, appellant indicated he intended to submit matters to the convening authority. The record of trial was served on appellant and after over 10 days elapsed without any submissions from appellant or his civilian counsel, a call was placed to his сivilian defense counsel to determine whether they desired a further delay of final action. Based upon a conversation with the civilian defense counsel, an additional day’s delay was approved. Final action was takеn by the convening authority after the 10-day time period for submissions and after the extra day’s delay provided to appellant’s civilian counsel. Appellate defense counsel assert the action by the civilian defense cоunsel waiving submissions was unilateral and not the decision of appellant. Appellant’s failure to submit matters to the cоnvening authority within 10 days of the service of the record upon him constituted a waiver of this right. Attempting to avoid this waiver rule by blaming civilian defense counsel’s after-the-fact efforts- is without merit. We find the convening authority’s final action on this case was timely. United States v. Shaw,30 MJ 1033 (AFCMR 1990); United States v. Euring,27 MJ 843 (ACMR 1989); RCM 1105(c)(1), 1105(d)(1).
Unpub. op. at 2.
Appellate government counsel filed a statement with this Court from civilian defense counsel on January 12, 1994, stаting:
COMES NOW Eric Rathbone, and states that the following is true:
Several days after the trial ended, Mr. and Mrs. Pierce, my secretary, and I hаd dinner together. At that time, Mr. Pierce indicated he was satisfied with the results of the trial and that he did not wish to proceed with аny further action. Following our dinner, Mr. Pierce changed residency and after several attempts to contact him including leaving messages with his wife I received no response and eventually gave up trying.
Appellant defense counsеl subsequently filed letters and other documents from appellant, his wife, and brother disputing the representations of Mr. Rathbone.
Appellant’s claim of ineffective assistance of counsel is based on the Sixth Amendment and Article 27(b), UCMJ, 10 USC § 827(b). He assеrts that civilian counsel’s failure to “present a petition for clemency and other favorable sentencing matters to the convening authority” (Final Brief at 4) after he (appellant) earlier indicated an intent to do so was unrеasonable professional conduct for an attorney. Moreover, he argues that such conduct should be presumed prejudicial because it denied him his best hope of securing sentence relief, i.e., clemency action by his convening authority. United States v. Moseley,
A finding of ineffective assistance of counsel requires a showing of deficient professional conduct and a showing that such conduct prejudiced appellant. See Strickland v. Washington,
Nevertheless, it is uncontroverted that appellant was represented by counsel after his trial and that counsеl was served with the post-trial recommendation. Cf. United States v. Moseley, supra at 485 (failure to serve defense counsel with post-trial recommendation deprived accused of counsel). In these circumstances we have normally required a showing of prejudice before granting relief based on a premature convening authority action. United States v. Johnson,
We finally note that there is no offer of proof, even at this late stage of the proceedings, as to the particular nature of the materials that appellant or сounsel would or could have submitted to the convening authority. United States v. Robertson,
The decision of the United States Air Force Court of Military Review is affirmed.