This opinion is subject to administrative correction before final disposition.




                                 Before
                  TANG, LAWRENCE, and J. STEPHENS,
                        Appellate Military Judges

                          _________________________

                            UNITED STATES
                                Appellee

                                       v.

                          Neil S. BARCLAY
                 Staff Sergeant (E-6), U.S. Marine Corps
                                Appellant

                              No. 201800271

                          Decided: 29 October 2019.

   Appeal from the United States Navy-Marine Corps Trial Judiciary,
   Military Judges: Lieutenant Colonel Forrest Hoover, USMC (arraign-
   ment); Lieutenant Colonel Emily Jackson-Hall, USMC (motions and
   trial). Sentence adjudged 10 May 2018 by a general court-martial con-
   vened at Marine Corps Air Station Cherry Point, North Carolina, con-
   sisting of a military judge sitting alone. Sentence approved by the con-
   vening authority: reduction to pay-grade E-1, confinement for eight
   years, 1 and a dishonorable discharge.

   For Appellant: Zaven T. Saroyan, Esq.; and Lieutenant Clifton E.
   Morgan, III, JAGC, USN.

   For Appellee: Lieutenant George R. Lewis, JAGC, USN; and Captain
   Brian L. Farrell, USMC.



   1  The convening authority suspended confinement in excess of 24 months pursu-
ant to a pretrial agreement.
                      United States v. Barclay, No. 201800271


   Judge J. STEPHENS delivered the opinion of the Court, in which
   Senior Judge TANG and Judge LAWRENCE joined.

                              _________________________

           This opinion does not serve as binding precedent, but
                may be cited as persuasive authority under
                 NMCCA Rule of Appellate Procedure 30.2.

                              _________________________

J. STEPHENS, Judge:
   Appellant pleaded guilty to fraternization, maltreatment, and sexual
assault in violation of Articles 92, 93, and 120, Uniform Code of Military
Justice (UCMJ). 2
    Appellant asserts two assignments of error: (1) that the trial counsel
committed prosecutorial misconduct when he commented on the victim’s
unsworn statement during his sentencing argument and (2) the trial defense
counsel were ineffective because they did not advise Staff Sergeant (SSgt)
Barclay how to file an Article 138, UCMJ, complaint concerning his lack of
proper medical care while in confinement. We find no prejudicial error and
affirm.

                                   I. BACKGROUND

   Staff Sergeant Barclay took one of his female subordinates, Lance Cor-
poral (LCpl) KP out to a local bar one evening. When she drank too much, he
drove her back to his house and gave her a place to sleep. She awoke to him
having sex with her. Staff Sergeant Barclay also made an unrelated com-
mented to another junior Marine, LCpl MJ, “mmm, that ass though,” and told
her, “I make beautiful babies.”
    During his pre-sentencing hearing, LCpl KP submitted a written victim
statement, 3 and also gave an unsworn statement to the military judge. Per
Defense request, the military judge stated she would not consider any un-
charged misconduct and would only consider “any financial, social, psycholog-



   2   10 U.S.C. §§ 892, 893, 920 (2016).
   3   Prosecution Exhibit 21.




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                        United States v. Barclay, No. 201800271


ical, or medical impact on the victim” 4 directly relating to the offense for
which SSgt Barclay was found guilty. In Appellant’s pre-sentencing case, he
gave an unsworn statement to the military judge using a question and an-
swer format with his civilian trial defense counsel and also submitted an
unsworn written statement. 5
    During arguments on sentencing, the trial counsel commented, without
objection, on LCpl KP’s unsworn statement. The civilian defense counsel also
commented on her unsworn statement.
    Staff Sergeant Barclay began serving his confinement at the Regional
Brig at Marine Corps Base Camp Lejeune, North Carolina. While there, he
continued to have medical problems stemming from prior back and shoulder
injuries. He told his detailed trial defense counsel about some of his problems
and made various administrative complaints at the Brig, but never filed a
formal complaint under Article 138, UCMJ, which permits aggrieved ser-
vicemembers to file complaints of wrongs.

                                   II. DISCUSSION

A. Prosecutorial Misconduct
    “Prosecutorial misconduct occurs when trial counsel overstep[s] the
bounds of that propriety and fairness which should characterize the conduct
of such an officer in the prosecution of a criminal offense.” 6 “Where proper
objection is entered at trial, [we] review alleged prosecutorial misconduct for
prejudicial error.” 7 Because there was no objection here, we review for plain
error, which occurs when there is an error, it is obvious, and results in mate-
rial prejudice to a substantial right. 8
    Victim unsworn statements are a relatively new development in military
justice. While the statements, either oral or written, are not traditional forms
of evidence, they are items which are allowed to be presented in pre-
sentencing. Our superior court has referred to them as “victim impact evi-



   4   Record at 119.
   5   Defense Exhibit E.
   6  United States v. Hornback, 

, 159 (C.A.A.F. 2014) (citing United
States v. Fletcher, 

, 179 (C.A.A.F. 2005)) (internal quotations omitted).
   7   

(citing 

).
   8   United States v. Powell, 

, 463-65 (C.A.A.F. 1998).




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                      United States v. Barclay, No. 201800271


dence.” 9 Congress, by enacting Article 6b, UCMJ, and the President, by
promulgating RULE FOR COURT-MARTIAL (R.C.M.) 1001A, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2016 ed.), has expressed clear intent that
such statements be heard in pre-sentencing.
   Appellant argues that an accused’s unsworn statement is “not evidence”
because it is unsworn—and items which are not evidence may not be argued
during pre-sentencing; therefore a victim’s unsworn statement is also “not
evidence” which may not be argued in pre-sentencing. This fundamentally
misunderstands the relevant case law, R.C.M. 1001A, and Article 6b, UCMJ.
    Appellant cites United States v. Breese, in which the Court of Military
Appeals held that a trial counsel did not act improperly when he argued to
the members in presentencing that all the other witnesses “took an oath to
tell the truth,” in contrast with the accused’s unsworn statement. 10 After the
defense objected, the military judge instructed the members not to draw any
adverse inferences from the accused’s lack of a sworn statement. The Breese
court stated, “The truth of the matter is that these statements are not made
under oath and, thus, the ‘unsworn statement is not evidence.’ ” 11
    Appellant urges us to believe Breese stands for the proposition that no ar-
gument may be made containing comments or references to the unsworn
statement of an accused because it is “not evidence.” This clearly misreads
Breese, which was a simple recognition that unsworn statements are “not
evidence” comparable with sworn testimony. However, unsworn statements,
despite being “not evidence” are “subject to rebuttal, [and] comment during
the Government’s closing argument” (emphasis added). 12 We believe the same
holds true for unsworn statements of victims under R.C.M. 1001A and we
find no error.

B. Ineffective Assistance of Counsel and Brig Medical Issues
   Trial defense counsel have important post-trial duties to their clients and
an accused still enjoys the right to effective post-trial assistance of counsel




   9  United States v. Hamilton, 

, 342 (C.A.A.F. 2019) (using the term
“victim impact evidence” when offered by the Government under R.C.M. 1001(b)(4)).
   10   

(C.M.A. 1981).
   11Id. at 24 (emphasis in the original) (quoting MANUAL FOR COURTS-MARTIAL,
UNITED STATES (1969 Revised ed.), Chapter XIII, ¶ 75(c)(2)).
   12   See United States v. Barrier, 

, 484 (C.A.A.F. 2005).




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                       United States v. Barclay, No. 201800271


under the Sixth Amendment to the United States Constitution. 13 These du-
ties generally pertain to clemency and the convening authority’s action. 14 We
review claims of ineffective assistance of counsel de novo 15 in determining
whether “counsel’s performance was deficient” and “resulted in prejudice.” 16
   Appellant alleges his trial defense counsel were deficient when they did
not advise him to file an Article 138 complaint or ever advise him about the
process. This failure, Appellant contends, changed the “results of the proceed-
ings.” 17 There is no duty under United States v. Strickland for a trial defense
counsel to advise a post-trial client how to file an Article 138 complaint.
Moreover, there are no “proceedings” tied to the alleged deficient performance
which we can evaluate for prejudicial effect. Thus we find no deficient per-
formance by trial defense counsel and no prejudice.
    Finding no ineffective assistance of counsel, 18 we now turn to the alleged
“cruel and unusual punishment” under the Eighth Amendment to the United
States Constitution stemming from the Brig’s actions concerning SSgt Bar-
clay’s medical treatment. We review alleged Eighth Amendment violations de
novo 19 and evaluate whether prison officials “committed an objectively, suffi-
ciently serious act or omission resulting in the denial of necessities” and “a
culpable state of mind . . . amounting to deliberate indifference to [Appel-
lant’s] health and safety.” 20
   Appellant submitted two affidavits along with other notes and medical
records. They generally show the attendant difficulties of being confined with
preexisting injuries and the frustration that can arise. From our review of



   13 United States v. Knight, 

, 342 (C.A.A.F. 2000) (citing United States
v. Palenius 

(C.M.A. 1977)).
   14   See 

.
   15   United States v. Gutierrez, 

, 330-31 (C.A.A.F. 2008).
   16United States v. Green, 

, 361 (C.A.A.F. 2010) (citing Strickland v.
Washington, 

, 687 (1984)).
   17   Appellant’s Brief of 1 May 2019 at 16.
   18 We will assume without deciding, that in spite of failing to file an Article 138,
UCMJ, complaint, SSgt Barclay “exhausted the prisoner grievance system and peti-
tioned for relief under Article 138, UCMJ.” United States v. Lovett, 

, 216
(C.A.A.F. 2006).
   19   United States v. White, 

, 471 (C.A.A.F. 2001).
   20   

.




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                         United States v. Barclay, No. 201800271


SSgt Barclay’s affidavits and records, his maladies and the Brig’s responses
do not rise to the level of the “denial of necessities.” He has not demonstrated
his health declined during confinement or that the Brig “officials knew of and
disregarded an excessive risk to [his] health and safety.” 21 In fact, it appears
Brig officials have accommodated him as reasonably as possible under the
circumstances—including ensuring he had weekly mental health visits, 22
regular mental health medications, 23 and access to medical doctors and diag-
nostic screenings, including MRIs. 24 Treatment of military prisoners is a
serious concern and they are entitled to medical care. However, these docu-
ments do not show Brig officials ignored SSgt Barclay’s medical problems.
Therefore, we find no violations of either the Eighth Amendment or Article
55, UCMJ. 25

C. Error in Court-Martial Order
    We note the court-martial order (CMO) does not accurately reflect the
disposition of all charges and specifications. Appellant is entitled to have
court-martial records that correctly reflect the content of his proceeding. 26
The CMO accurately reflects the military judge granted the trial counsel’s
request to withdraw the language, specifications, and charges to which Ap-
pellant entered pleas of not guilty, with such language, specifications, and
charges to be dismissed without prejudice. However, the CMO fails to indi-
cate that the dismissal of the language, specifications, and charges will ripen
into dismissal with prejudice upon completion of appellate review in which
the findings and sentence have been upheld. 27 We will take appropriate ac-
tion in the decretal paragraph.

                                   III. CONCLUSION

   The supplemental CMO shall properly reflect the disposition of the ex-
cepted language from Charge II, Specification 2. Furthermore, the CMO shall


   21   

v. Brennan, 

, 837 (1994)).
   22   Appellant’s Motion to Attach, Appendix C at 74, 80.
   23   Appellant’s Affidavit of 15 Apr 2019 at 3.
   24   

   25   10 U.S.C. § 855 (2016) (cruel and unusual punishments prohibited).
   26   United States v. Crumpley, 

, 539 (N-M. Ct. Crim. App. 1998)
   27   Record at 112.




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                   United States v. Barclay, No. 201800271


also properly reflect the disposition of: Charge II, Specification 1; Charge III,
Specification 2; Charge IV and its specification; and the Additional Charge
and its specification.
    After careful consideration of the record and briefs of appellate counsel,
we have determined the approved findings and sentence are correct in law
and fact and that no error materially prejudicial to Appellant’s substantial
rights occurred. Arts. 59 and 66, UCMJ.
  The findings and sentence as approved by the convening authority are
AFFIRMED.
   Senior Judge TANG and Judge LAWRENCE concur.


                                 FOR THE COURT:




                                 RODGER A. DREW, JR.
                                 Clerk of Court




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