U.S. v. Captain, 75 M.J. 99

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

1. to prevail on an ineffective assistance claim, appellant bears the burden of proving that the performance of defense counsel was deficient and that he was prejudiced by the error
2. while defense counsel is not prohibited from advocating for an accused’s wishes in favor of a particular punishment to the exclusion of others, counsel may not ask a court-martial to impose a punitive discharge when the accused’s wishes are to the contrary; thus, where defense counsel concedes the appropriateness of a punitive discharge, even as a tactical step to accomplish mitigation of other elements of a possible sentence, counsel must make a record that such advocacy is pursuant to the accused’s wishes
3. in this case, where appellant claimed ineffective assistance of his trial defense counsel in sentencing because his counsel failed to offer evidence in extenuation and mitigation at sentencing and erroneously conceded the appropriateness of a dishonorable discharge without his consent, appellant failed to establish the prejudice prong of ineffective assistance of counsel where (1) the potential sentencing witnesses had anemic prospective value, (2) the military judge did in fact consider appellant’s military awards and decorations and combat zone deployments despite the lack of documentary evidence, and (3) the DuBay record sufficiently documented that trial defense counsel secured appellant’s consent to argue for a punitive discharge in an attempt to reduce the confinement period adjudged; under these circumstances, where the trial defense counsel had also negotiated a PTA that capped confinement at four years, where the maximum was seven years and five years was adjudged, it was not reasonably probable that the failure in presenting sentencing evidence or in the sentencing request for a punitive discharge would have impacted the sentence adjudged

Military Justice Personnel: Convening Authority: Action

1. where a punitive discharge had been adjudged at trial, where the pretrial agreement provided for approval of any punitive discharge as adjudged, where appellant did not seek disapproval of the punitive discharge in his clemency submission, where the convening authority failed to explicitly state his approval or disapproval of the punitive discharge in his action as required by RCM 1107(d)(1), but noted that the punitive discharge would be executed after final judgment, the convening authority’s action was ambiguous and it was necessary to return the record for corrective action pursuant to RCM 1107(g)

Trial Stages: Initial Review: Action

1. where a punitive discharge had been adjudged at trial, where the pretrial agreement provided for approval of any punitive discharge as adjudged, where appellant did not seek disapproval of the punitive discharge in his clemency submission, where the convening authority failed to explicitly state his approval or disapproval of the punitive discharge in his action as required by RCM 1107(d)(1), but noted that the punitive discharge would be executed after final judgment, the convening authority’s action was ambiguous and it was necessary to return the record for corrective action pursuant to RCM 1107(g)

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a court of criminal appeals may act only with respect to the findings and sentence as approved by the convening authority

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

1. an appellate court reviews claims of ineffective assistance of counsel de novo, giving substantial deference to a military judge’s findings of fact unless they are clearly erroneous
2. to prevail on an ineffective assistance claim, appellant bears the burden of proving that the performance of defense counsel was deficient and that he was prejudiced by the error; with respect to deficiency prong, courts indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; as to the prejudice prong, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different; in this case, the prejudice analysis requires that the appellate court determine whether there was a reasonable probability that, but for the alleged errors, the adjudged sentence would have been less than that provided in the pretrial agreement
3. an appellate court need not apply the two pronged ineffective assistance of counsel test in any particular order; rather, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed
4. whether a convening authority has met the requirements of RCM 1107 in taking his action, as a question of law, is reviewed de novo