U.S. v. Cary, 62 M.J. 277

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

1. in a guilty plea case, where the primary concern of a client is on the sentence, defense counsel should give careful attention to the evidence that would be introduced during sentencing
2. assuming defense counsel was ineffective in not objecting to a personal data sheet admitted in sentencing with an incorrect reference to an Article 15, UCMJ, nonjudicial punishment, in order to meet the ineffective assistance of counsel standard, appellant must show that absent such error, there was a reasonable probability of a different result; in this case, although the error may have been plain, appellant failed to demonstrate that the military judge or the convening authority considered this entry; the absence of any reliance on the erroneous information by the prosecution or the staff judge advocate underscored the absence of any prejudice under the plain error test; because of the absence of prejudice under a plain error analysis, any deficiency here does not establish prejudice with respect to the issue of ineffective assistance of counsel, where an even higher standard of prejudice applies

Trial Stages: Sentence and Punishment: Evidence

1. an erroneous data entry to an Article 15, UCMJ, nonjudicial punishment on a personal data sheet admitted in aggravation in sentencing without objection did not meet the plain error standard where (1) the data entry only listed the numeral “1” after “Article 15,” without any reference to the nature of the offense or the type of punishment, and thus was not particularly informative; (2) the trial counsel did not introduce any record of an NJP proceeding or make mention of an NJP in his sentencing argument; (3) the military judge made no mention of an NJP; (4) the staff judge advocate’s recommendation described appellant’s prior service as “satisfactory” and did not mention an NJP; and (5) the adjudged and approved sentence was considerably less than the jurisdictional maximum; although this error may have been plain, appellant failed to demonstrate that the military judge or the convening authority considered this entry; the absence of any reliance on the erroneous information by the prosecution or the staff judge advocate underscored the absence of any prejudice under the plain error test

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in the absence of defense objection to a personal data sheet admitted in sentencing with an incorrect reference to an Article 15, UCMJ, nonjudicial punishment, an appellate court proceeds under the plain error standard; it must determine whether there was error, whether it was plain, and whether it materially prejudiced a substantial right of the accused

Miscellaneous Matters: Nonjudicial Punishment (Article 15): Generally

1. a commander has considerable discretion in deciding whether an offense is a minor offense subject to punishment under Article 15, UCMJ; nonjudicial punishment can be used to cover a wide variety of offenses, ranging from an incidental infraction during initial training to a significant dereliction by a member of a command’s permanent party