U.S. v. Alves, 53 M.J. 286

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. to overcome the presumption that defense counsel is competent, an appellant must demonstrate: (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) that the deficient performance prejudices the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable
2. the two-part test for ineffective assistance of counsel applies to guilty pleas and to sentencing hearings that may have been undermined by ineffective assistance of counsel
3. counsel’s performance was deficient because he failed to interview any witnesses or conduct any investigation prior to advising appellant to plead guilty where: (1) there was a finite number of witnesses; (2) the incident involved alcohol; and (3) appellant was unable to remember critical moments of the offense
4. although counsel’s performance was deficient because he failed to interview any witnesses or conduct any investigation prior to advising appellant to plead guilty, appellant failed to show there was a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial
5. counsel was deficient during sentencing because he failed to explore the potential for introducing good-military-character character evidence; without interviewing the potential witnesses, counsel was not in a position to make a tactical decision as to whether the witnesses would or would not have been valuable character witnesses
6. normally, ineffective assistance of counsel at the sentencing phase is prejudicial and requires a new sentencing hearing because the record does not contain the evidence that an effective counsel would have presented
7. where new counsel interviewed pertinent witnesses and made a post-trial presentation to the convening authority that resulted in substantial sentence relief, the convening authority adequately addressed any prejudice appellant may have suffered as a result of his counsel’s deficient performance during the sentencing phase of trial

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. judicial scrutiny of a claim of ineffective assistance of counsel is highly deferential and should not be colored by the distorting effects of hindsight
2. to overcome the presumption that defense counsel is competent, an appellant must demonstrate: (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) that the deficient performance prejudices the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable
3. where appellant has pleaded guilty at trial, the prejudice prong of the test for ineffective assistance of counsel requires that appellant show specifically that there is a probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial