United States v. Wiley

*159 Opinion of the Court

GIERKE, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of committing indecent acts on a female under the age of 16 (2 specifications) and taking indecent liberties with a female under the age of 16, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The military judge sentenced appellant to a dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to the lowest enlisted grade. In accordance with a pretrial agreement, the convening authority reduced the confinement to 6 years and disapproved the forfeitures, but approved the remainder of the adjudged sentence.

The Court of Criminal Appeals affirmed the findings in an unpublished opinion but reduced the confinement to 5 years and 6 months to cine an evidentiary error in the sentencing hearing.

Our Court granted review of the following specified issue:

WHETHER TRIAL DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL, POST-TRIAL, BY FAILING TO RESPOND TO EXTRA-RECORD, ADVERSE INFORMATION IN THE STAFF JUDGE ADVOCATE’S POST-TRIAL RECOMMENDATION, WHICH INFORMATION WAS ERRONEOUSLY PORTRAYED AS EVIDENCE ON THE MERITS.

We hold that appellant was not prejudiced by any deficiency in his counsel’s post-trial performance.

When appellant’s case was referred to trial, he was charged with rape, sodomy, committing indecent acts, and taking indecent liberties. The victim of all these offenses was his 7-year-old stepdaughter. The rape and sodomy were alleged to have occurred on divers occasions between December 26,1992, and May 31, 1994. The indecent acts and indecent liberties were alleged to have occurred on divers occasions between July 1, 1992, and May 31,1994.

Appellant pleaded guilty to committing the indecent acts and the indecent liberties occurring during a shorter period than originally charged, ie., from July 1,1992, to July 31, 1993. He pleaded not guilty to rape and sodomy, and those charges were withdrawn upon acceptance of his pleas of guilty, in accordance with a pretrial agreement.

In his post-trial recommendation to the convening authority, the staff judge advocate (SJA) erroneously summarized the evidence supporting the offenses as originally charged instead of the evidence supporting the offenses to which appellant had pleaded guilty.

The recommendation was served on defense counsel, who submitted a clemency petition but did not point out the errors in the summary of the evidence. Appellant now argues that he was prejudiced by his counsel’s ineffective post-trial representation. Even though there is no affidavit from defense counsel explaining his rationale, the Government argues that defense counsel made a “tactical decision” not to point out the SJA’s error. Answer to Final Brief at 6. The Government further argues that appellant has not been prejudiced.

An appellant is entitled to effective post-trial representation, judged by the same standard as representation at trial. United States v. MacCulloch, 40 MJ 236, 239 (CMA 1994). The standard for measuring claims of ineffective representation is a two-pronged test. First, an appellant must show that counsel’s performance was deficient. Second, an appellant must show that he was prejudiced by his counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052,2064, 80 L.Ed.2d 674 (1984). To satisfy the second prong, an appellant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. at 2067. We review issues regarding effectiveness of counsel de novo. 2 S. Childress & M. Davis, Federal Standards of Review, § 12.09, at 12-63 (2d ed.1992).

*160In appropriate cases, failure to respond to errors in the SJA’s recommendation might satisfy the first prong. See United States v. Parks, 46 MJ 114 (1996) (extent of drug use overstated). However, we need not address the first prong in this case. The Supreme Court has observed that an appellate court “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” The purpose of appellate review “is not to grade counsel’s performance.” Furthermore, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” 466 U.S. at 697, 104 S.Ct. at 2069.

We hold that appellant was not prejudiced by any deficiencies in his counsel’s performance, for three reasons. First, he received a substantial sentence reduction under his pretrial agreement. Second, the same officer referred the charges to trial, accepted appellant’s pretrial agreement, and acted on the sentence. The convening authority was thus well aware of the evidence against appellant, regardless of the guilty pleas. The SJA’s erroneous recommendation merely told the convening authority what he already knew. Cf. United States v. Parks, supra (statement in SJA’s recommendation factually incorrect and not supported by evidence). Finally, the convening authority was authorized to consider evidence of additional misconduct in deciding whether to reduce the sentence beyond what was required by the pretrial agreement. RCM 1107(b)(3)(B)(iii), Manual for Courts-Martial, United States (1995 ed.); United States v. Leal, 44 MJ 235, 237 (1996).

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

Chief Judge COX and Judges SULLIVAN and CRAWFORD concur.