(dissenting):
The standard for ineffective assistance of counsel established by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), involves a two-part test. The first part requires a showing that the performance of counsel fell below an objective standard of reasonableness. The second part requires proof of prejudice. United States v. Scott, 24 MJ 186,188 (CMA 1987).
Defense counsel’s performance clearly was deficient under the first prong of Strickland. Defense counsel owes a continuing duty to zealously represent his client during the post-trial stages of a case that lead to appellate review. United States v. Palenius, 2 MJ 86 (CMA 1977). Effective assistance of counsel is especially important at that point because it represents an accused’s last, best chance for a reduction in sentence. See United States v. Howard, 47 MJ 104 (1997); United States v. Jones, 36 MJ 438, 439 (CMA 1993). Appellant was denied that assistance when his counsel failed to correct substantial, prejudicial errors in the staff judge advocate (SJA)’s post-trial recommendation to the convening authority.
After repeatedly requesting extensions of the deadline for submission of appellant’s clemency petition, see RCM 1105(e)(1), Manual for Courts-Martial, United States (1994 ed.), defense counsel submitted a clemency petition that was unremarkable, save in one respect — it failed to correct serious error in the SJA’s post-trial recommendation. See RCM 1106(f)(4).
Under a pretrial agreement, appellant was convicted of two specifications of committing indecent acts on a female under the age of 16 and one specification of taking indecent liberties with the same girl (his stepdaughter), in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. Other allegations of rape and forcible sodomy of the same victim on “divers occasions” over a period of Vh years were withdrawn by the Government when appellant’s pleas were accepted.
In a section headed, “Synopsis and Sufficiency of the Evidence," however, the SJA’s post-trial recommendation discussed all the initial charges in the case, not just the ultimate findings of the court-martial. The recommendation implied to the convening authority that the “evidence” depicted “about ten” distinct offenses of rape or forcible sod*161omy, even though appellant’s convictions at his court-martial were limited to two specifications of committing indecent acts and one of taking indecent liberties. The SJA’s recommendation contained a dramatic overstatement of the evidence actually presented at trial, both in terms of the quantity and the quality of the crimes of which appellant actually was convicted. There was no tactical reason for defense counsel to permit such misinformation to reach the convening authority.
I agree with the majority that, in an appropriate case, it is permissible to avoid a decision on the first prong of Strickland if an appellant cannot demonstrate prejudice. In this case, the majority’s opinion regarding lack of prejudice is unpersuasive.
First, although appellant’s sentence was reduced from 8 years to 6 years, that reduction was a result of his pretrial agreement, not a post-trial action by the convening authority. The convening authority’s post-trial action, taken after receiving unrebutted erroneous advice from his SJA, left appellant with a substantial 6-year sentence to confinement.
Second, a pretrial agreement does not nullify clemency proceedings. The fact that the convening authority was aware of the charges pending prior to the court-martial does not excuse a post-trial recommendation that inappropriately draws attention to charges that were not resolved against appellant at trial and that implies conviction thereon.
Third, I disagree with the majority’s reliance on speculation that the “convening authority was thus well aware of the evidence against appellant” because he had referred all of the charges to trial and had entered into the pretrial agreement. 47 MJ at 160. The primary duty of a convening authority is to command a military unit, not to serve as a judicial official. The statutory requirement for an SJA to prepare a formal written recommendation reflects recognition that busy commanders need assistance in summarizing and focusing the issues in cases presented to them for action. In this case, the summary was inaccurate and unfocused. The withdrawn charges were untried and untested. Such misinformation can make a significant difference in how a convening authority determines whether a sentence is appropriate.
Although the convening authority is authorized to consider evidence of misconduct beyond that which has been tried and found true, the convening authority should not be misled as to evidence actually presented at trial. The SJA prejudicially erred by including the section in question, and appellant depended upon his counsel to correct both the error and the prejudice. Yet, counsel was silent in that regard. The second part of the Strickland test for ineffective assistance of counsel is met by this clear demonstration of prejudice.
Both the convening authority and appellant deserve a minimum standard of competence throughout the post-trial proceedings, and that minimum was not met by defense counsel in this ease. I would require a new SJA’s recommendation and convening authority’s action in this ease.