U.S. v. Quick, 59 M.J. 383

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

1. the Supreme Court in Strickland established a two-prong test for ineffective assistance of counsel; first, appellant must show that counsel’s performance was deficient; and second, appellant must show that the deficient performance prejudiced the defense
2. the two-prong Strickland test must be met before there is a finding of constitutional violation; absent a showing of both deficient performance and prejudice, there is no constitutional violation under Strickland
3. the appropriate test for prejudice under Strickland is whether there is a reasonable probability that, but for counsel’s error, there would have been a different result
4. to the extent that the “reasonably likely” language in United States v. Pineda, 54 M.J. 298 (C.A.A.F. 2001) referenced by the Court of Criminal Appeals has caused uncertainty in regard to the proper standard for prejudice in cases involving concessions of punitive discharges, we take this opportunity to clarify that the Strickland test is the proper vehicle for reviewing a claim that a defense counsel provided ineffective assistance of counsel by conceding the appropriateness of a punitive discharge
5. the Court of Criminal Appeals correctly concluded that the trial defense counsel improperly conceded the appropriateness of a dishonorable discharge where the record was silent as to the wishes of his client
6. in this case, given the brutally senseless nature of the crime (to include kidnapping, rape, and robbery), there is no reasonable probability that, even if defense counsel had not conceded a dishonorable discharge and argued for 40 years confinement, there would have been a different result; under the facts, there is no reasonable probability that, absent the error, the result would have been different; therefore, appellant has failed to meet his burden to establish prejudice under the Strickland test

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

1. this Court reviews the decision of the Court of Criminal Appeals on the issue of ineffective assistance of counsel de novo as a question of law.
2. the Supreme Court in Strickland established a two-prong test for ineffective assistance of counsel; first, appellant must show that counsel’s performance was deficient; and second, appellant must show that the deficient performance prejudiced the defense
3. the burden on an appellant to show ineffective assistance of counsel is heavy because counsel is presumed to have performed in a competent, professional manner; to overcome this presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms
4. there is no particular order that must be followed in analyzing an ineffective assistance of counsel claim; a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed