U.S. v. Furth, 81 M.J. 114

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

1. with respect to a claim of ineffective assistance of counsel, an appellant bears the burden of demonstrating that (a) defense counsel’s performance was deficient, and (b) this deficient performance was prejudicial; and this applies in the context of cases involving guilty pleas; however, the prejudice inquiry is modified to focus on whether the ineffective performance affected the outcome of the plea process; that is, the appellant must establish prejudice by showing that there is a reasonable probability that, but for counsel’s errors, the appellant would not have pleaded guilty and would have insisted on going to trial
2. standing alone, an appellant’s post hoc assertions about how he would have pleaded but for his attorney’s deficiencies are not enough to establish prejudice; an appellate court must also look to contemporaneous evidence to substantiate an appellant’s expressed preferences; this is so because the appellant has an incentive to claim, in retrospect, that the result of the plea process would have been different regardless of whether that claim is, in fact, true
3. in order to satisfy the prejudice requirement of the test for ineffective assistance of counsel, an appellant must show that there is a reasonable probability that, but for the counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial
4. assuming that trial defense counsel performed deficiently during the plea process in erroneously advising appellant that his pending resignation request, if approved, would vacate his guilty pleas, appellant was not prejudiced where there was no reasonable probability that, but for counsel’s error, he would not otherwise have pleaded guilty to lesser offenses, thereby eliminating the possibility of a conviction of the more serious charged offenses of which the government had strong evidence, and would have instead risked conviction of offenses that had a maximum term of confinement of 12 years when the plea agreement negotiated by counsel limited any sentence to confinement to no more than 9 months; furthermore, (1) the record reflected no compelling extenuating or mitigating circumstances that would have resulted in a reduced sentence, (2) appellant understood that if he did not accept the plea offer in a timely manner, he would lose the benefit of at least some of its favorable terms, and (3) everyone in appellant’s chain of command had recommended disapproval of his resignation request
5. in this case, with respect to appellant’s ineffective assistance of counsel claim based on advice he received during the plea process, there was no need for a DuBay (17 CMA 147, 37 CMR 411 (1967)) hearing where there was no dispute about the advice he received and where the record was clear about the countervailing factors that would have prompted appellant to plead guilty even if he had received the correct legal advice from his counsel

Trial Stages: Appeals: Remedies › DuBay/Factfinding hearing

1. in this case, with respect to appellant’s ineffective assistance of counsel claim based on advice he received during the plea process, there was no need for a DuBay (17 CMA 147, 37 CMR 411 (1967)) hearing where there was no dispute about the advice he received and where the record was clear about the countervailing factors that would have prompted appellant to plead guilty even if he had received the correct legal advice from his counsel

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

1. an appellate court conducts a de novo review of ineffective assistance of counsel claims
2. with respect to a claim of ineffective assistance of counsel, an appellant bears the burden of demonstrating that (a) defense counsel’s performance was deficient, and (b) this deficient performance was prejudicial; and this applies in the context of cases involving guilty pleas; however, the prejudice inquiry is modified to focus on whether the ineffective performance affected the outcome of the plea process; that is, the appellant must establish prejudice by showing that there is a reasonable probability that, but for counsel’s errors, the appellant would not have pleaded guilty and would have insisted on going to trial
3. the prejudice test for ineffective assistance of counsel objective, which an appellate court reviews de novo
4. standing alone, an appellant’s post hoc assertions about how he would have pleaded but for his attorney’s deficiencies are not enough to establish prejudice; an appellate court must also look to contemporaneous evidence to substantiate an appellant’s expressed preferences; this is so because the appellant has an incentive to claim, in retrospect, that the result of the plea process would have been different regardless of whether that claim is, in fact, true
5. in order to satisfy the prejudice requirement of the test for ineffective assistance of counsel, an appellant must show that there is a reasonable probability that, but for the counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial
6. in order to satisfy the prejudice requirement of the test for ineffective assistance of counsel, an appellant must show that there is a reasonable probability that, but for the counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial