UNITED STATES, Appellant and Cross-Appellee
v.
Brandon T. ROSE, Airman Basic
U.S. Air Force, Appellee and Cross-Appellant
No. 09-5003
Crim. App. No. 36508
United States Court of Appeals for the Armed Forces
Argued April 3, 2012
Decided May 24, 2012
RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and STUCKY, JJ., and EFFRON, S.J., joined.
Counsel
For Appellant and Cross-Appellee: Lieutenant Colonel Linell A.
Letendre (argued); Colonel Don M. Christensen and Gerald R.
Bruce, Esq. (on brief).
For Appellee and Cross-Appellant: Dwight H. Sullivan, Esq.
(argued); Major Michael S. Kerr (on brief); Major Daniel E.
Schoeni.
Amicus Curiae for Appellee: Cherlyn Walden (law student)
(argued); Danielle Purcell (law student), Brooks Holland, Esq.
(supervising attorney) (on brief) –- for Gonzaga University
School of Law.
Military Judges: David F. Brash (court-martial) and Jennifer
Whittier (DuBay hearing)
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rose, 09-5003/AF
Judge RYAN delivered the opinion of the Court.
Under Article 67(a)(2), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 867(a)(2) (2006), the Judge Advocate General
of the Air Force (TJAG) certified the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN
FINDING INEFFECTIVE ASSISTANCE OF COUNSEL IN THIS CASE.
We answer the question in the negative, albeit under different
reasoning than the United States Air Force Court of Criminal
Appeals (AFCCA). Where, as here, a defendant’s reasonable
request for information regarding sex offender registration was
“a key concern” identified to defense counsel that “went
unanswered,” and if it had been correctly answered he would not
have pleaded guilty, we hold that he received ineffective
assistance of counsel.
Moreover, in light of our decision in United States v.
Ballan, 71 M.J. 28 (C.A.A.F. 2012), we hold that it was obvious
error to omit the terminal element of Article 134, UCMJ, 10
U.S.C. § 934 (2006), from Specification 4 under Charge V, but
that there was no prejudice to Appellee’s substantial rights.1
1
On January 17, 2012, we granted the issue raised in Appellee’s
cross-petition:
WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT
FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN
UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED
STATES, AND THIS COURT’S OPINION IN UNITED STATES v.
FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
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United States v. Rose, 09-5003/AF
Therefore, we affirm the decision and order of the AFCCA setting
aside the findings of guilty to Specifications 1, 2, and 3 under
Charge V and the sentence, affirming the remaining findings of
guilty, and authorizing a rehearing.2
I. PROCEDURAL HISTORY
Consistent with his pleas, a military judge sitting as a
general court-martial convicted Appellee of attempted larceny,
disobeying an order, drunk driving, larceny, forgery,
housebreaking, indecent assault, and obstructing justice, in
violation of Articles 80, 92, 111, 121, 123, 130, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 892,
911, 921, 923, 930, 934 (2006).3 The military judge sentenced
__ M.J. __ (C.A.A.F. 2012) (order granting review).
2
Oral argument in this case was heard at Gonzaga University
School of Law, Spokane, Washington, as part of the Court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
3
The indecent assaults occurred prior to October 1, 2007, the
effective date of the amendments to the UCMJ and
Manual for Courts-Martial, United States (MCM) made by the
National Defense Authorization Act for Fiscal Year
2006, Pub. L. No. 109-163, § 552, 119 Stat. 3136, 3256-63
(2006), so they were properly charged under Article 134, UCMJ.
See MCM, Punitive Articles Applicable to Sexual Assault Offenses
Committed Prior to 1 October 2007 app. 27 at A27-2 (2008 ed.).
None of the specifications under Charge V alleged the
terminal element of Article 134, UCMJ.
3
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Appellee to a dishonorable discharge and confinement for twenty
months. The convening authority approved the sentence.
The long appellate history in this case began when Appellee
learned that he was required to register as a sex offender after
he completed his in-processing paperwork for confinement at
Scott Air Force Base. As a result of his discovery and pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
Appellee claimed, inter alia, that he received ineffective
assistance of counsel. In response to Appellee’s claim, Mr.
Connors, civilian defense counsel, and Captain Logan, detailed
military defense counsel, submitted affidavits to the AFCCA.
Unable to resolve the issue based on the information from the
affidavits, the AFCCA returned the record of trial to TJAG for
referral to the convening authority for a post-trial hearing in
accordance with United States v. DuBay, 17 C.M.A. 147, 37 C.M.R.
411 (1967).
Relying on the facts developed at the DuBay hearing, the
AFCCA held that Appellee met his burden of proof to establish
ineffective assistance of counsel under both prongs of
Strickland v. Washington, 466 U.S. 668, 687 (1984) (requiring a
defendant to show deficient performance by counsel and “that the
deficient performance prejudiced the defense”). United States
v. Rose, 67 M.J. 630, 636 (A.F. Ct. Crim. App. 2009). The AFCCA
then set aside the findings of guilty as to the three indecent
4
United States v. Rose, 09-5003/AF
assault specifications (Specifications 1, 2, and 3 of Charge V)
and authorized a rehearing on the indecent assault findings and
the sentence. Id. at 638. On April 8, 2009, TJAG certified two
issues to this Court.4 Following oral argument, we set aside the
decision of the AFCCA and remanded to the lower court to obtain
an affidavit from Appellee’s original assistant military defense
counsel and to reconsider the issue of ineffective assistance of
counsel. United States v. Rose, 68 M.J. 236 (C.A.A.F. 2009)
(summary disposition).
After receiving the affidavit from Appellee’s original
trial defense counsel, the AFCCA, sitting en banc, found that it
4
Under Article 67(a)(2), UCMJ, TJAG certified the following
issues:
I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
IN DENYING THE UNITED STATES’ REQUEST THAT THE COURT ORDER
AN AFFIDAVIT FROM APPELLEE’S ORIGINAL MILITARY DEFENSE
COUNSEL.
II. WHETHER AN “IMPRESSION” LEFT BY CIVILIAN DEFENSE
COUNSEL THAT APPELLEE MAY NOT HAVE TO REGISTER AS A SEX
OFFENDER AMOUNTED TO AN AFFIRMATIVE MISREPRESENTATION AND
LED TO APPELLEE RECEIVING INEFFECTIVE ASSISTANCE OF
COUNSEL.
United States v. Rose, 67 M.J. 402 (C.A.A.F. 2009) (certificate
for review filed).
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“add[ed] nothing.”5 United States v. Rose, No. ACM 36508 (f
rev), 2010 CCA LEXIS 251, at *2, 2010 WL 4068976, at *1 (A.F.
Ct. Crim. App. June 11, 2010) (en banc). The AFCCA reconsidered
its prior decision and again held that Appellee met his burden
under both prongs of the Strickland test. 2010 CCA LEXIS 251,
at *13, 2010 WL 4068976, at *5. On July 12, 2010, TJAG filed
another certificate for review, 69 M.J. 198 (C.A.A.F. 2010), and
we again set aside the AFCCA’s decision because it acted on the
findings with respect to the indecent assault specifications but
not on the remaining findings and the sentence. United States
v. Rose, 69 M.J. 426 (C.A.A.F. 2010) (summary disposition).
Thus, we remanded the case to the lower court to complete its
review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006), as
to the remaining findings and the sentence. Id.
In response, the AFCCA issued its third opinion in this
case, and, consistent with its initial opinion finding
ineffective assistance of counsel, it once again dismissed the
indecent assault specifications, affirmed the remaining
findings, and reassessed the sentence from twenty to seventeen
months of confinement and a dishonorable discharge. United
5
In his affidavit, Mr. (formerly Captain) George stated, “With
regard to any discussions regarding sex offender registration, I
have no recollection, one way or the other, as to whether
[Airman Basic (AB)] Rose and I discussed this matter prior to AB
Rose releasing me as his [area defense counsel].” 2010 CCA
LEXIS 251, at *2, 2010 WL 4068976, at *1.
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States v. Rose, No. ACM 36508 (rem), 2011 CCA LEXIS 349, at *4,
2011 WL 6010908, at *1 (A.F. Ct. Crim. App. Mar. 9, 2011) (en
banc). The Government then filed a motion to reconsider, which
the AFCCA granted. In an unpublished order, the AFCCA noted
that the findings of guilty for the indecent assault
specifications had already been set aside in its February 2009
opinion, so it affirmed the remaining findings, set aside the
sentence, and authorized a rehearing on the indecent assault
specifications and the sentence. United States v. Rose, No. ACM
36508 (rem), slip op. at 1-2 (A.F. Ct. Crim. App. Aug. 15, 2011)
(en banc) (unpublished order).
On September 14, 2011, TJAG certified the instant issue,
asking us to consider whether the AFCCA erred in finding
ineffective assistance of counsel. Appellee then filed, and we
granted, a cross-petition seeking review in light of United
States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), of Charge V,
alleging violations of Article 134, UCMJ, where the terminal
element was omitted from the language of the specifications.
II. FACTUAL BACKGROUND
The following facts are relevant to Appellee’s decision to
plead guilty to the indecent assault specifications.6
6
For a more detailed account of the underlying offenses, see
Rose, 67 M.J. at 631-32.
7
United States v. Rose, 09-5003/AF
In 2005, Appellee was charged with committing numerous
offenses. He was initially represented during the early stages
of the investigation and at the first Article 32, UCMJ, 10
U.S.C. § 832 (2006), hearing by Captain George and Mr. Connors,
a civilian defense counsel. Appellee later released Captain
George, who was replaced by Captain Logan. The DuBay military
judge noted that Captain Logan was “a relatively new [defense
counsel] at the time” who was “very deferential to Mr. Connors’
handling of [the] case.” Before trial began, Appellee submitted
a proposed pretrial agreement in which he agreed to plead guilty
to all of the offenses except for the three indecent assault
specifications listed under Charge V as Specifications 1, 2, and
3. The convening authority rejected this proposal.
Appellee testified that he was worried about pleading
guilty to indecent assault because he did not want to register
as a sex offender, and he communicated his concern multiple
times to his defense counsel. This testimony was corroborated.
For example, a defense paralegal testified that Appellee asked
him on the telephone about sex offender registration on “two or
three occasions.” And Captain Logan testified that he recalled
Appellee telling him, “I won’t plead guilty if I have to
register as a sex offender.” Indeed, the “[o]ne thing” that
Captain Logan recalled that Appellee “made clear” –- “the one
thing from the case” that stuck out to him -- was that
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United States v. Rose, 09-5003/AF
“[Appellee] wasn’t going to plead to the indecent assaults if he
had to register as a sex offender.”
Mr. Connors viewed the alleged indecent assaults as “fairly
innocuous types of charges” that amounted to “just foolery.” He
testified that, while the issue of sex offender registration was
“raised at some point” during his discussions with Appellee,
neither he nor Captain Logan ever directly told Appellee that he
would have to register as a sex offender if he pleaded guilty.
In fact, Mr. Connors testified that he “[did not] remember a
complete dispositive answer being ever elicited from myself or
the other counsel.” Nevertheless, Mr. Connors acknowledged that
he would not have advised Appellee to plead guilty if he had
known that Appellee would have to register as a sex offender.
At no point did any defense counsel investigate the answer to
Appellee’s question regarding sex offender status.
Appellee recalled that Mr. Connors said that “he was not
sure” about sex offender registration, but that Mr. Connors did
not “see [a reason] why,” based on the allegations, it “would be
a registerable offense.” Captain Logan simply deferred to Mr.
Connors. Relying on the responses from his counsel, Appellee
believed that he would not have to register. He testified:
“The only thing I understood was that . . . I would not have to
[register];” and “the way he made it seem was I wouldn’t have to
[register] by everything that he was saying.” The DuBay
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military judge found the testimony truthful and credible, and
she concluded that Appellee’s question regarding sex offender
registration was “a key concern” that “went unanswered” in this
case. Additionally, she concluded that Appellee’s “impression
that he would not have to register” was “reasonable under the
circumstances.”
In accordance with Mr. Connors’s recommendation, Appellee
entered into a pretrial agreement and agreed to plead guilty to
all of the charges. Relevant to Appellee’s cross-petition, the
military judge listed and defined both clauses of the terminal
element for each Article 134, UCMJ, specification during the
plea colloquy. The military judge had Appellee describe the
underlying facts and explain why his conduct was service
discrediting or prejudicial to good order and discipline for
each specification. Ultimately, the military judge found the
pleas to be provident, and he accepted them.
III. DISCUSSION
A. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, “an
appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted
in prejudice.” United States v. Green, 68 M.J. 360, 361
(C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687). The
Strickland test applies in the context of guilty pleas where an
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United States v. Rose, 09-5003/AF
appellant challenges the plea based on ineffective assistance of
counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). And the
Supreme Court recently reaffirmed that the entry of a guilty
plea is a critical stage of the litigation, where a criminal
defendant is entitled to effective assistance of counsel.
Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012); Lafler v.
Cooper, 132 S. Ct. 1376, 1384 (2012); Padilla v. Kentucky, 130
S. Ct. 1473, 1480-81 (2010) (noting that a defendant is entitled
to “‘the effective assistance of competent counsel’” before
deciding to plead guilty (quoting McMann v. Richardson, 397 U.S.
759, 771 (1970))); cf. United States v. St. Blanc, 70 M.J. 424,
428 (C.A.A.F. 2012).
Ineffective assistance of counsel claims involve mixed
questions of law and fact: “[t]his Court reviews factual
findings under a clearly erroneous standard, but looks at the
questions of deficient performance and prejudice de novo.”
United States v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008).
With respect to the first prong, whether counsel’s performance
was deficient, courts “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689; see also
Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (“Even under
de novo review, the standard for judging counsel’s
representation is a most deferential one.”). With regard to the
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second prong, an appellant in a guilty plea case establishes
prejudice by showing that, but for counsel’s deficient
performance, there is a “‘reasonable probability’” that “‘he
would not have pleaded guilty and would have insisted on going
to trial.’” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F.
2007) (quoting United States v. Alves, 53 M.J. 286, 289
(C.A.A.F. 2000)); see also Hill, 474 U.S. at 59.
In order to establish deficient performance, Appellee must
establish that counsel’s “representation amounted to
incompetence under ‘prevailing professional norms.’”
Harrington, 131 S. Ct. at 788 (quoting Strickland, 466 U.S. at
690). While we indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance, there are nevertheless “important guides” by which
we must measure that conduct, one of which is the Rules of
Professional Conduct. Frye, 132 S. Ct. at 1408 (“Though the
standard for counsel’s performance is not determined solely by
reference to codified standards of professional practice, these
standards can be important guides.”).
Under the American Bar Association (ABA) Model Rule of
Professional Conduct 1.4 and the Air Force (AF) Rule of
Professional Conduct 1.4 (2005), an attorney has a duty to
“promptly comply with reasonable requests for information.”
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In this case, it is undisputed that Appellee requested
information from his defense counsel asking whether he would
have to register as a sex offender if he pleaded guilty to the
indecent assault offenses, and that, at a minimum, his attorney
never complied with his request for information. Further, the
DuBay military judge found as fact that Appellee raised the
issue of registering as a sex offender as “a key concern” with
his counsel. And, tellingly, Mr. Connors acknowledged that he
would not have advised Appellee to plead guilty if he had known
that Appellee would have to register as a sex offender, but
never undertook to investigate the actual answer to the question
posed by Appellee. Yet while Mr. Connors never investigated or
correctly answered the question that was his client’s key
concern, he nonetheless advised Appellee to plead guilty.
While counsel’s failure to answer a specific request for
information violates the duty to “promptly comply with
reasonable requests for information” under the ABA Model Rules
of Prof’l Conduct R. 1.4 and the AF Rule of Prof’l Conduct 1.4,
not every failure to answer a client’s question will rise to the
level of deficient performance under the stringent Strickland
standard. However, based on the facts of this case, it did. We
hold that counsel’s failure to comply with a reasonable request
for information about sex offender registration amounted to
deficient performance where counsel knew that this was a “key
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United States v. Rose, 09-5003/AF
concern,” and where, had the request been investigated and
answered, even counsel acknowledges that his advice would have
been different.
To prevail on his claim of ineffective assistance of
counsel, Appellee must also demonstrate prejudice. In the
context of a guilty plea, the prejudice question is whether
“there is a reasonable probability that, but for counsel’s
errors, [the defendant] would not have pleaded guilty and would
have insisted on going to trial.”7 Hill, 474 U.S. at 59; Tippit,
65 M.J. at 76. Here, the DuBay military judge’s findings
resolve the question of prejudice. It is undisputed that
Appellee’s defense counsel failed to provide him with accurate
advice regarding sex offender registration even though he
requested it before he made the decision to plead guilty. The
DuBay military judge found Appellee’s testimony to be
“truthful[] and credibl[e]” –- he would not have pleaded guilty
7
The Government argues that, because Appellee has “not
registered as a sex offender in any state” since his conviction,
he cannot show prejudice under the second prong of Strickland.
Even though it is unclear from the record whether Appellee has
registered, the test for prejudice is not whether he has
registered, but rather whether there is a reasonable probability
that he would not have pleaded guilty and insisted on going to
trial but for counsel’s deficient performance. See Hill, 474
U.S. at 59; Tippit, 65 M.J. at 76. In this case the record is
clear on that point.
14
United States v. Rose, 09-5003/AF
“if he had to register as a sex offender.”8 This finding of fact
is not clearly erroneous in a context where Appellee requested
information regarding sex offender status on several occasions,
did not agree to plead guilty to the indecent assault charges in
his first proposed pretrial agreement, made clear to his counsel
that the information was important to him, and was nonetheless
advised to plead guilty.
Based on the facts of this case, we hold that Appellee has
established ineffective assistance of counsel because he has
“demonstrate[d] both (1) that his counsel’s performance was
deficient, and (2) that this deficiency resulted in prejudice.”
Green, 68 M.J. at 361.
B. Failure to Allege Article 134, UCMJ, Terminal Element
Appellee’s court-martial was in 2005. Specification 4
under Charge V, alleging obstruction of justice as a violation
of Article 134, UCMJ, was “legally sufficient at the time of
trial and [is] problematic today only because of intervening
changes in the law.” See Ballan, 71 M.J. at 34 n.4. When
defects in a specification are raised for the first time on
appeal because of intervening changes in the law, we test for
8
The Government contends that Appellee “was willing to enter
into a quite favorable pretrial agreement (PTA) and plead guilty
to the indecent assaults knowing that his sex offender
registration question had gone unanswered.” However, the
findings of fact from the DuBay hearing do not support this
argument, as in context it is obvious that Appellee thought that
he would not have to register.
15
United States v. Rose, 09-5003/AF
plain error and will only dismiss the specification if there is
prejudice. Id. at 34. In this case, we find error but no
prejudice. See id. at 34-36.
During the plea colloquy, the military judge listed and
defined clauses 1 and 2 of the terminal element for
Specification 4 under Charge V, and Appellee described his
actions and explained why his conduct was service discrediting
and prejudicial to good order and discipline. Thus, the record
unambiguously reflects that Appellee “knew under what clause[s]
he was pleading guilty and clearly understood the nature of the
prohibited conduct as being in violation of clause[s 1 and] 2,
Article 134.” Id. at 35 (quotation marks and citations
omitted). As a result, there was no prejudice to Appellee’s
substantial rights.
IV. CONCLUSION
The certified question is answered in the negative. Under
the granted issue, we hold that there was error but no prejudice
to Appellee’s substantial rights. We affirm the decision and
order of the United States Air Force Court of Criminal Appeals,
setting aside the findings of guilty to Specifications 1, 2, and
3 under Charge V and the sentence, affirming the remaining
findings of guilty, and authorizing a rehearing. The record of
trial is returned to the Judge Advocate General of the Air Force
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for remand to an appropriate convening authority for further
proceedings.
17