UNITED STATES v. Radell J. MITCHELL Tech. Sergeant (E-6), U.S. A.F, ACM 39794, 2021 WL 58132 (A.F. Crim. App. Jan. 7, 2021)
AFCCA released its unanimous unpublished opinion in United States v. Mitchell, finding no error and affirming the findings and sentence.
Mitchell opinion here.
Pursuant to a pretrial agreement (PTA), TSgt Radell J. Mitchell pleaded guilty to a single charge and specification of possession of child pornography, a violation of UCMJ Article 134. The military judge sentenced Mitchell to a dishonorable discharge, 26 months’ confinement, forfeiture of all pay and allowances, and reduction in grade from E-6 to E-1. In accordance with the PTA, the convening authority disapproved the total forfeitures, but approved the remainder of the sentence.
On appeal at AFCCA, Mitchell raised four claims, based on (1) post-trial delay; ineffective assistance of counsel due to trial defense counsel’s alleged (2) failure to object to a stipulation of fact and (3) erroneous advice as to the clemency process; and (4) inappropriate severity of the sentence. Finding no error, AFCCA affirmed.
I. Factual Background
Before he pleaded guilty on 15 July 2019, Mitchell admitted at trial to downloading and viewing child pornography, including over 80 files that were known depictions of exploitation involving identified victims, and over 2,000 other files. The evidence presented at trial included Mitchell’s sworn statements to the military judge and a six-page stipulation of fact and attachments totaling 56 pages.
II. Mitchell’s Claims on Appeal
A. Post-Trial Delay
Mitchell was sentenced on the same day that he pleaded guilty, and his appeal was docketed with AFCCA on 21 October 2019. On appeal, Mitchell claiming that the three-month delay between sentencing and the docketing of his appeal negatively impacted his ability to obtain a discharge upgrade and apply for veterans’ benefits. Reviewing this due process claim de novo, AFCCA found Mitchell’s sentencing-docketing delay of 98 days less than the 150 days required under United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), to establish that a delay was facially unreasonable. In denying this claim, the court also stated that it had balanced the Barker v. Wingo factors, finding no violation of Mitchell’s due process rights, and that discretionary relief under Article 66(d)(2) was inappropriate.
B. Ineffective Assistance of Counsel
Mitchell presented two ineffective assistance claims.
First, Mitchell alleged that his trial defense counsel were ineffective in failing to object to a stipulation of fact that included an allegation of uncharged misconduct: that he exposed himself to a 13-year-old girl during a video chat. After reviewing counsel’s declarations regarding the stipulation negotiations, AFCCA noted that Mitchell had many opportunities to review the stipulations and repeatedly confirmed their accuracy, both in writing and verbally, under oath. AFCCA also observed not only that Mitchell had not demonstrated that, but for counsel’s errors, he would not have pleaded guilty, but also that the record showed the opposite: he “knowing and willingly pleaded guilty.”
Second, Mitchell alleged that his counsel erred when they advised him that the convening authority could mitigate his term of confinement in clemency proceedings. Mitchell claimed that, had he been advised correctly, he would have requested a change in his reduction in grade instead of his term of confinement. In their declarations, both trial defense counsel presented detailed accounts to demonstrate that they correctly advised Mitchell. Noting that counsel’s declarations provided reasonable explanations for their advice, AFCCA determined that Mitchell failed to establish deficient performance. It also observed that because Mitchell did not limit his clemency request to a confinement reduction and the convening authority was correctly advised, Mitchell also failed to demonstrate prejudice.
Finding that Mitchell had demonstrated neither deficient performance nor prejudice with respect to either of his ineffective assistance claims, AFCCA denied relief.
C. Sentencing Appropriateness
Reviewing the sentence de novo as required by Article 66(d)(1), AFCCA found that the final sentence was appropriate. While Mitchell sought a sentence comparison, AFCCA determined that he failed to show that any of the cases he cited were “closely related” enough to his case to require a comparison, and that such a comparison would not be helpful. Having reviewed the record, AFCCA upheld the sentence in its entirety.
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