U.S. v. Osheskie, 63 M.J. 432

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

1. the Strickland test governs ineffective assistance of counsel claims in cases involving guilty pleas; appellant must show not only that his counsel was deficient but also that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial
2. defense counsel must perform a reasonable investigation, or make a reasonable decision that an avenue of investigation is unnecessary
3. appellant, who was convicted of killing his infant daughter by placing her face down and smothering her in her crib, did not establish that his trial defense counsel were ineffective in failing to investigate a medically accepted child care technique called laying of the hands, a technique in which a parent applies light pressure to a child’s back in order to calm the child so that she can sleep; the decision not to investigate further was reasonably made where the amount of force and time required to kill the child, as well as the physical distress the child would have demonstrated when the accused was holding her face into the mattress, negated the need to pursue a laying of the hands theory for the child’s death; in addition, during the providence inquiry, appellant admitted to the elements of Article 118(3), UCMJ, (murder while engaging in an act inherently dangerous to another), which would have made investigation into the laying of the hands theory irrelevant because he stated that he knew that death was a probable consequence of his actions; appellant’s statements during the providence inquiry were consistent with his trial defense counsels’ affidavits, not his own
4. appellant did not establish that his trial defense counsel were ineffective in failing to advise him that he could plead guilty to a lesser-included offense such as negligent homicide or involuntary manslaughter without an agreement with the convening authority; appellant presented no evidence, other than his own statements, to prove that his trial defense counsel did not explain that he could plead guilty to a lesser included offense, and both of his trial defense counsel submitted affidavits stating that they had so advised appellant; the affidavits of defense counsels, taken in context with the record as a whole, particularly appellant’s own statements during the providence inquiry regarding his satisfaction that he had considered any possible defense arising from the circumstances, demonstrate the improbability of his assertion; in fact, the record as a whole compellingly demonstrates the improbability of appellant’s post-trial affidavit
5. in this case, appellant failed to prove either prong of the Strickland test with respect to his allegations of ineffective assistance of his trial defense counsel; his trial defense counsel were competent in their representation and there has been no showing that appellant was prejudiced by his counsels’ actions and advice; in fact, appellant’s counsel, through the pretrial agreement, saved appellant from one-third of his adjudged sentence; the record as a whole compellingly demonstrates the improbability of appellant’s post-trial affidavit

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if there has been a denial of due process because of post-trial or appellate delay, appellant is entitled to relief unless the court is convinced that the error was harmless beyond a reasonable doubt
2. where an appellate court can determine that any violation of the due process right to speedy post-trial review and appeal is harmless beyond a reasonable doubt, it need not undertake the four-factor Barker analysis prior to disposing of that post-trial or appellate delay issue

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

1. an appellate court reviews ineffective assistance of counsel claims de novo
2. the Strickland test governs ineffective assistance of counsel claims in cases involving guilty pleas; appellant must show not only that his counsel was deficient but also that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial
3. despite an appellant’s submission of an affidavit that is factually adequate on its face on an ineffective assistance of counsel claim, an appellate court can independently resolve the factual and legal issues in the case if the appellate filings and the record as a whole compellingly demonstrate the improbability of the facts
4. an appellate court reviews claims of post-trial and appellate delay using the four-factor analysis from Barker v. Wingo

Miscellaneous Matters: Speedy Trial: Post-Trial

1. in this case, even if appellant was denied his due process right to speedy review and appeal by a delay of almost five years from the date of sentence to completion of his Article 66, UCMJ, review, that error was harmless beyond a reasonable doubt and no relief is warranted