U.S. v. Rose, 71 M.J. 138

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

1. to establish ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice
2. the Strickland ineffective assistance of counsel test applies in the context of guilty pleas where an appellant challenges the plea based on ineffective assistance of counsel
3. the entry of a guilty plea is a critical stage of the litigation, where a criminal defendant is entitled to effective assistance of counsel
4. in determining whether a counsel’s performance was deficient in a claim of ineffective assistance of counsel, appellate courts must indulge a strong presumption that the counsel’s conduct falls within the wide range of reasonable professional assistance
5. in determining whether there was prejudice in a claim of ineffective assistance of counsel, an appellant in a guilty plea case establishes prejudice by showing that, but for counsel’s deficient performance, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial
6. in order to establish deficient performance in a claim of ineffective assistance of counsel, an appellant must establish that counsel’s representation amounted to incompetence under prevailing professional norms
7. while a defense counsel’s failure to answer a specific request for information by his client violates the duty to promptly comply with reasonable requests for information under the Rules of Professional, not every failure to answer a client’s question will rise to the level of deficient performance under the stringent Strickland ineffective assistance of counsel standard
8. defense counsel’s failure to comply with a reasonable request for information about sex offender registration by his client amounted to deficient performance where counsel knew that this was a key concern, and where, had the request been investigated and answered, even counsel acknowledges that his advice to his client to plead guilty to indecent assault offenses would have been different
9. the accused was prejudiced by his defense counsel’s failure to provide him with accurate advice regarding sex offender registration because he would not have pleaded guilty to the indecent assault offenses if he had known that he would have to register as a sex offender; the accused requested the information from his counsel on several occasions before he made the decision to plead guilty, he did not agree to plead guilty to the offenses in his first proposed pretrial agreement, he made clear to his counsel that the sex offender registration information was important to him, and he was nonetheless advised to plead guilty
10. where an accused’s reasonable request for information regarding sex offender registration was a key concern identified to defense counsel that went unanswered, and if it had been correctly answered, he would not have pleaded guilty, the accused received ineffective assistance of counsel because he has demonstrated both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice

Core Criminal Law Subjects: Crimes: Art. 134 - Obstructing Justice Pre-2019 offenses

1. a specification alleging obstruction of justice as a violation of Article 134, UCMJ, but failing to allege the terminal element of that offense, was erroneous but not prejudicial to the accused’s substantial rights, where during the guilty plea colloquy, the military judge listed and defined clauses 1 and 2 of the terminal element for the accused, and the accused described his actions and explained why his conduct was service discrediting and prejudicial to good order and discipline; thus, the record unambiguously reflects that the accused knew under what clauses he was pleading guilty and clearly understood the nature of the prohibited conduct as being in violation of clauses 1 and 2 of Article 134

Trial Stages: Merits: Guilty Pleas

1. the entry of a guilty plea is a critical stage of the litigation, where a criminal defendant is entitled to effective assistance of counsel

Trial Stages: Appeals: Harmless / Prejudicial Error

1. a specification alleging obstruction of justice as a violation of Article 134, UCMJ, but failing to allege the terminal element of that offense, was erroneous but not prejudicial to the accused’s substantial rights, where during the guilty plea colloquy, the military judge listed and defined clauses 1 and 2 of the terminal element for the accused, and the accused described his actions and explained why his conduct was service discrediting and prejudicial to good order and discipline; thus, the record unambiguously reflects that the accused knew under what clauses he was pleading guilty and clearly understood the nature of the prohibited conduct as being in violation of clauses 1 and 2 of Article 134

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when defects in a specification are raised for the first time on appeal because of intervening changes in the law, an appellate court tests for plain error and will only dismiss the specification if there is prejudice

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

1. to establish ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice
2. the Strickland ineffective assistance of counsel test applies in the context of guilty pleas where an appellant challenges the plea based on ineffective assistance of counsel
3. ineffective assistance of counsel claims involve mixed questions of law and fact; an appellate court reviews factual findings under a clearly erroneous standard, but looks at the questions of deficient performance and prejudice de novo
4. in determining whether a counsel’s performance was deficient in a claim of ineffective assistance of counsel, appellate courts must indulge a strong presumption that the counsel’s conduct falls within the wide range of reasonable professional assistance
5. in determining whether there was prejudice in a claim of ineffective assistance of counsel, an appellant in a guilty plea case establishes prejudice by showing that, but for counsel’s deficient performance, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial
6. in order to establish deficient performance in a claim of ineffective assistance of counsel, an appellant must establish that counsel’s representation amounted to incompetence under prevailing professional norms
7. while an appellate court indulges a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, there are nevertheless important guides by which it must measure that conduct, one of which is the Rules of Professional Conduct
8. when defects in a specification are raised for the first time on appeal because of intervening changes in the law, an appellate court tests for plain error and will only dismiss the specification if there is prejudice