U.S. v. Suarez, 86 M.J. 65

First Principles: Constitutional Matters: Generally

1. a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution; however, there is a presumption against the waiver of constitutional rights, and for a waiver to be effective, it must be clearly established that there was an intentional relinquishment of a known right or privilege

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

1. for an ineffective assistance of counsel claim, an appellant bears the burden of demonstrating that (a) defense counsel's performance was deficient, and (b) this deficient performance was prejudicial
2. when an accused alleges his counsel's deficient performance led him to accept a guilty plea rather than go to trial, an appellate court does not ask whether, had he gone to trial, the result of that trial would have been different than the result of the plea bargain; instead, the accused can show prejudice by demonstrating a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial
3. the prejudice test for ineffective assistance of counsel in the guilty plea context -- whether there is a reasonable probability that, but for counsel's errors, appellant would have pleaded not guilty -- is an objective test which an appellate court reviews de novo; and 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, 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
4. in this case, the CCA's finding that nothing in the record demonstrated appellant would not have pled guilty but for trial defense counsel's erroneous advice was clearly erroneous; furthermore, the CCA applied an incorrect prejudice standard in its prejudice analysis when it concluded that as a matter of law, there was no prejudice because appellant would not have fared better absent trial defense counsel's advice

Trial Stages: Merits: Guilty Pleas

1. an unconditional guilty plea generally waives all pretrial and trial defects that are not jurisdictional or a deprivation of due process of law

Trial Stages: Merits: Pretrial Agreements

1. in the military justice system, an accused's misunderstanding as to a material term in a plea agreement invalidates a plea

Trial Stages: Appeals: Remedies › Remand

1. because the CCA applied incorrect legal principles in addressing appellant's ineffective of counsel claim and failed to address whether there was a reasonable probability that, but for counsel's errors, appellant would not have pleaded guilty and would have insisted on going to trial, a remand for a new Article 66, UCMJ, review applying correct legal principles is required

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

1. an appellate court reviews whether an appellant has waived an issue, a question of law, de novo
2. whether a waiver of a right was knowing and intelligent is a question of law assessed under a de novo standard of review
3. the voluntariness of a waiver is also reviewed de novo; voluntariness is measured by reference to the surrounding circumstances
4. an appellate court reviews ineffective assistance of counsel claims de novo
5. for an ineffective assistance of counsel claim, an appellant bears the burden of demonstrating that (a) defense counsel's performance was deficient, and (b) this deficient performance was prejudicial
6. when an accused alleges his counsel's deficient performance led him to accept a guilty plea rather than go to trial, an appellate court does not ask whether, had he gone to trial, the result of that trial would have been different than the result of the plea bargain; instead, the accused can show prejudice by demonstrating a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial
7. the prejudice test for ineffective assistance of counsel in the guilty plea context -- whether there is a reasonable probability that, but for counsel's errors, appellant would have pleaded not guilty -- is an objective test which an appellate court reviews de novo; and 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, 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

Trial Stages: Appeals: Waiver

1. a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution; however, there is a presumption against the waiver of constitutional rights, and for a waiver to be effective, it must be clearly established that there was an intentional relinquishment of a known right or privilege
2. when an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal
3. in this case, appellant waived review of the question whether unlawful influence affected his court-martial by entering a plea agreement with a waive all waivable motions provision and affirming during his providence inquiry his understanding that the provision waived appellate review of his UCI claim
4. an unconditional guilty plea generally waives all pretrial and trial defects that are not jurisdictional or a deprivation of due process of law
5. in this case, even if appellant was erroneously advised by his trial defense counsel regarding the effect of the plea agreement on his UCI claim, he was accurately advised by the military judge during the providence inquiry and he affirmed that he understood the meaning and effect of the waiver provision and had entered into the agreement freely and voluntarily; under these circumstances, the waiver was both knowing and voluntary
6. whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake
7. in the absence of an explicit prohibition, a party may knowingly and voluntarily waive rights in a plea agreement; although the President has prohibited the waiver of certain fundamental rights in a plea agreement, the right to have proceedings free from UCI is not among them
8. appellant's contention that adjudicative UCI, that is, command interference with witnesses, judges, members, or counsel, can never be waived is rejected; unlawful command influence is generally reviewed as an accusatory (preferral, forwarding, and referral of charges) or adjudicative (interference with witnesses, judges, members, and counsel) claim; a pretrial agreement initiated by appellant waives any objection to improper interference with the preferral and referral of charges; and under the circumstances in this case, where (1) the right at stake was the right to a proceeding free from the taint of UCI surrounding appellant's apprehension and the subsequent investigation and prosecution of his case, and (2) appellant received some relief in the form of command-implemented remedial measures even before he filed his pretrial UCI motion, and after the motion was litigated, additional remedies to cure any lingering UCI were ordered, appellant waived adjudicative UCI with his unconditional guilty plea to secure the benefits of a plea agreement

Miscellaneous Matters: Command Influence: Generally

1. in this case, appellant waived review of the question whether unlawful influence affected his court-martial by entering a plea agreement with a waive all waivable motions provision and affirming during his providence inquiry his understanding that the provision waived appellate review of his UCI claim
2. in this case, even if appellant was erroneously advised by his trial defense counsel regarding the effect of the plea agreement on his UCI claim, he was accurately advised by the military judge during the providence inquiry and he affirmed that he understood the meaning and effect of the waiver provision and had entered into the agreement freely and voluntarily; under these circumstances, the waiver was both knowing and voluntary
3. in the absence of an explicit prohibition, a party may knowingly and voluntarily waive rights in a plea agreement; although the President has prohibited the waiver of certain fundamental rights in a plea agreement, the right to have proceedings free from UCI is not among them
4. appellant's contention that adjudicative UCI, that is, command interference with witnesses, judges, members, or counsel, can never be waived is rejected; unlawful command influence is generally reviewed as an accusatory (preferral, forwarding, and referral of charges) or adjudicative (interference with witnesses, judges, members, and counsel) claim; a pretrial agreement initiated by appellant waives any objection to improper interference with the preferral and referral of charges; and under the circumstances in this case, where (1) the right at stake was the right to a proceeding free from the taint of UCI surrounding appellant's apprehension and the subsequent investigation and prosecution of his case, and (2) appellant received some relief in the form of command-implemented remedial measures even before he filed his pretrial UCI motion, and after the motion was litigated, additional remedies to cure any lingering UCI were ordered, appellant waived adjudicative UCI with his unconditional guilty plea to secure the benefits of a plea agreement