U.S. v. Tippit, 65 M.J. 69

First Principles: Constitutional Matters: Right to a Speedy Trial

1. the Sixth Amendment to the Constitution provides that the accused in a criminal prosecution shall enjoy the right to a speedy trial; a four-part test has been established for assessing whether a delay amounts to a Sixth Amendment constitutional violation, requiring a balancing of the length of the delay, reasons for the delay, whether the accused demanded a speedy trial, and any prejudice to the accused from the delay; in addition to the Sixth Amendment, timely processing also is subject to assessment under the Due Process Clause of the Fifth Amendment
2. an unconditional plea of guilty which results in a finding of guilty waives any speedy trial issue as to that offense under the Sixth Amendment

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

1. members of the armed forces are entitled to the effective assistance of counsel
2. appellant failed to establish that his trial defense counsel were ineffective for failing to challenge the disposition of the initial charges filed against him, where he did not meet his initial burden of establishing a factual appellate record documenting the disposition of the charges that would permit an appellate court to ascertain the basis for his claim
3. appellant failed to establish that his trial defense counsel were ineffective for failing to advise him that an unconditional guilty plea would waive appellate consideration of his RCM 707 speedy trial claim, and of the possibility of entering a conditional guilty plea to preserve the issue, where even assuming the failure to provide such advice was deficient, he did not demonstrate that he would have prevailed on the speedy trial issue on appeal, and thus he did not show prejudice
4. appellant failed to establish that his trial defense counsel were ineffective for failing to focus the speedy trial claim on Article 10, where appellant did not demonstrate that the government failed to proceed with reasonable diligence, either with respect to the length of the delay or with respect to the reasons for the delay; accordingly, appellant failed to establish that he would have prevailed on appeal had his counsel pursued a different strategy at trial by making the speedy trial claim under Article 10, in addition to RCM 707, and thus he did not show prejudice

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the accused’s guilty pleas were not rendered improvident by his alleged mistaken belief that his RCM 707 speedy trial issue would be preserved for appeal if he entered unconditional guilty pleas, where the military judge did not have an affirmative duty under RCM 910 to instruct an accused that unconditional guilty pleas waived further review of an RCM 707 speedy trial claim

Trial Stages: Pretrial: Charges and Specifications

1. the act of withdrawing a referred charge from a court-martial under RCM 604 does not produce dismissal of the charges; when charges are withdrawn under RCM 604, they remain in effect
2. in this case, although the SJA recommended that the convening authority “withdraw” the charges and the convening authority wrote “concur,” this is not a case where the convening authority had the option of either dismissal or withdrawal; with respect to the disposition choices in his recommendation, the SJA provided the convening authority with only one option with respect to dismissal or withdrawal –- that is, dismissal –- and he used common language which has the same colloquial meaning as dismissal; the parties agreed that the charges had not been referred to a court-martial at the time of the convening authority’s action, and that the convening authority could not “withdraw” the charges from a court-martial as a matter of law under RCM 604; although use of the word “withdrawal” to implement a dismissal of charges is not recommended, the SJA’s accurate presentation of dismissal as an option and the convening authority’s decision to concur were sufficient to dismiss the charges and stop the RCM 707 speedy trial clock
3. the existence of parallel investigations of the accused by multiple agencies and the decision to await their completion to fully ascertain the number and nature of offenses constituted a legitimate reason for dismissing the charges with a view towards later re-preferral

Trial Stages: Merits: Guilty Pleas

1. the accused’s guilty pleas were not rendered improvident by his alleged mistaken belief that his RCM 707 speedy trial issue would be preserved for appeal if he entered unconditional guilty pleas, where the military judge did not have an affirmative duty under RCM 910 to instruct an accused that unconditional guilty pleas waived further review of an RCM 707 speedy trial claim

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

1. an appellate court reviews claims of ineffective assistance of counsel de novo; an appellant who alleges ineffective assistance of counsel must surmount a very high hurdle; a reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance
2. to overcome the presumption of counsel’s competence, appellant must demonstrate: (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable
3. in a guilty plea case, to satisfy the prejudice prong of the ineffective assistance of counsel test, the defense must show specifically 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
4. when challenging the performance of counsel, the defense bears the burden of establishing the truth of the factual allegations that would provide the basis for finding deficient performance; when there is a factual dispute, an appellate court determines whether further factfinding is required; if, however, the facts alleged by the defense would not result in relief under the high standard of the ineffective assistance of counsel test, an appellate court may address the claim without the necessity of resolving the factual dispute
5. an appellate court need not determine whether any of the alleged errors in counsel’s performance established constitutional deficiencies under the serious deficiency prong of the ineffective assistance of counsel test, if any such errors would not have been prejudicial under the high hurdle established by the second prong of the test
6. the decision to accept a guilty plea is reviewed for an abuse of discretion; an appellant who challenges the providency of a guilty plea must demonstrate a substantial basis in law and fact for questioning the guilty plea

Miscellaneous Matters: Speedy Trial: Rule for Courts-Martial 707

1. the regulatory speedy trial standard set forth in RCM 707 requires that an accused be brought to trial within 120 days of preferral of charges, imposition of restraint, or entry onto active duty, whichever is earliest; an accused is brought to trial within the meaning of the Rule at arraignment; if charges are dismissed, the clock stops and a new 120-day period begins upon re-preferral of charges
2. under RCM 707(e), an unconditional plea of guilty which results in a finding of guilty waives any speedy trial issue as to that offense under the Rule; in this case, appellant’s unconditional guilty plea waived his speedy trial rights under RCM 707
3. in this case, although the SJA recommended that the convening authority “withdraw” the charges and the convening authority wrote “concur,” this is not a case where the convening authority had the option of either dismissal or withdrawal; with respect to the disposition choices in his recommendation, the SJA provided the convening authority with only one option with respect to dismissal or withdrawal -- that is, dismissal -- and he used common language which has the same colloquial meaning as dismissal; the parties agreed that the charges had not been referred to a court-martial at the time of the convening authority’s action, and that the convening authority could not “withdraw” the charges from a court-martial as a matter of law under RCM 604; although use of the word “withdrawal” to implement a dismissal of charges is not recommended, the SJA’s accurate presentation of dismissal as an option and the convening authority’s decision to concur were sufficient to dismiss the charges and stop the RCM 707 speedy trial clock
4. once charges are dismissed, absent a subterfuge, the speedy-trial clock is restarted

Miscellaneous Matters: Speedy Trial: Article 10

1. the statutory speedy trial standard, Article 10, UCMJ, provides that when any person subject to the UCMJ is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him; Article 10 provides a more exacting speedy trial standard than the Sixth Amendment; the standard under Article 10 for assessing the government’s actions is not constant motion, but reasonable diligence in bringing the charges to trial; although Article 10 establishes a more stringent standard than the Sixth Amendment, the four-part test for assessing whether a delay amounts to a Sixth Amendment constitutional violation is relied on to evaluate Article 10 claims, requiring a balancing of the length of the delay, reasons for the delay, whether appellant demanded a speedy trial, and any prejudice to appellant from the delay
2. Article 10 provides a narrow exception to the normal rule that a speedy trial motion is waived by an unconditional guilty plea; a servicemember who enters an unconditional guilty plea may appeal a speedy trial claim under Article 10 only if the accused has invoked Article 10 at trial by filing and litigating an Article 10 motion at trial
3. in this case, where appellant did not make a motion under Article 10 at trial and did not litigate the speedy trial motion he did make under Article 10, any issue with respect to Article 10 was waived by his unconditional guilty plea
4. Article 10 requires the government to act with reasonable diligence to bring charges to trial when an accused is under arrest or confinement, or under certain forms of restriction; the protections of Article 10 are broader than RCM 707; the test under Article 10 is whether the government has acted with reasonable diligence; four factors applicable to the litigation of speedy trial claims under the Sixth Amendment are taken in account in assessing whether the government has acted with reasonable diligence: (1) length of the delay; (2) the reasons for the delay; (3) whether appellant made a demand for a speedy trial; and (4) prejudice to appellant

Miscellaneous Matters: Speedy Trial: Sixth Amendment Right to a Speedy Trial

1. the Sixth Amendment to the Constitution provides that the accused in a criminal prosecution shall enjoy the right to a speedy trial; a four-part test has been established for assessing whether a delay amounts to a Sixth Amendment constitutional violation, requiring a balancing of the length of the delay, reasons for the delay, whether the accused demanded a speedy trial, and any prejudice to the accused from the delay; in addition to the Sixth Amendment, timely processing also is subject to assessment under the Due Process Clause of the Fifth Amendment
2. an unconditional plea of guilty which results in a finding of guilty waives any speedy trial issue as to that offense under the Sixth Amendment; in this case, appellant’s unconditional guilty pleas waived his speedy trial rights under the Sixth Amendment