United States v. Lee

52 M.J. 51, 1999 CAAF LEXIS 1255, 1999 WL 770156

Opinions

Judge GIERKE

delivered the opinion of the Court.

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of attempted distribution of cocaine, conspiracy to commit larceny, dereliction of duty, wrongful distribution of cocaine, and larceny, in violation of Articles 80, 81, 92, 112a, and 121, Uniform Code of Military Justice, 10 USC §§ 880, 881, 892, 912a, and 921, respectively. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 10 months, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

This Court granted review of the following issue:

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT WHEN HIS DEFENSE COUNSEL ESSENTIALLY CONCEDED DURING CLEMENCY THAT HIS CLIENT SHOULD RECEIVE A BAD-CONDUCT DISCHARGE.

For the reasons set out below, we affirm.

Appellant pleaded guilty in accordance with a pretrial agreement in which the convening authority agreed to disapprove any confinement in excess of 16 months, but could approve any punitive discharge that was adjudged. In a stipulation of fact, appellant admitted destroying his motorcycle in order to defraud his insurance company, conspiracy with another airman to defraud an insurance company by hiding the other airman’s motorcycle, attempting to obtain cocaine in order to sell it, selling cocaine, and failing to register several weapons.

In a post-trial request for clemency, appellant, his father (a retired U.S. Army Sergeant Major), his wife, his mother, and his sister all asked the convening authority to disapprove the dishonorable discharge and approve a general discharge. As part of the same clemency package, appellant’s defense counsel asked that the convening authority commute the dishonorable discharge to a bad-conduct discharge.

Appellant now argues that his defense counsel provided ineffective post-trial representation by conceding that a bad-conduct discharge was appropriate, thereby undercutting his request for clemency. Appellant has not asserted, before this Court or the court below, that his defense counsel faded to discuss the clemency submission with him, or that defense counsel’s request for a bad-conduct discharge was contrary to his wishes.

Counsel are presumed to be competent. To overcome this presumption, an appellant must show that his counsel was deficient, and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Morgan, 37 MJ 407, 409 (CMA 1993). The right to effective representation extends to post-trial proceedings. United States v. Cornett, 47 MJ 128, 133 (1997). Defense counsel is responsible for post-trial tactical decisions, but he should act “after consultation with the client where feasible and appropriate.” United States v. MacCulloch, 40 MJ 236, 239 (CMA 1994). Defense counsel may not submit matters over the client’s objection. United States v. Hood, 47 MJ 95, 97 (1997). We review issues of ineffective representation de novo. United States v. Wiley, 47 MJ 158, 159 (1997).

Appellant specifically stated at trial that he did not want to suffer the humiliation of a punitive discharge. However, there is no assertion and no evidence that defense counsel did not consult with appellant before submitting the clemency package. Furthermore, there is no evidence that, once appellant was confronted with the possibility that the convening authority would approve the adjudged dishonorable discharge, he told his defense counsel that he objected to asking the convening authority to reduce the dishonorable discharge to a bad-conduct discharge.

In any event, we need not decide if defense counsel was deficient by not resolving the inconsistency in appellant’s clemency submission, because the second Strickland prong is not met. To prevail, “appellant must show ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” United States v. Wiley, supra.

Errors in post-trial representation can be tested for prejudice. United States v. Cornett, supra. However, because of the highly discretionary nature of the convening authority’s clemency power, the threshold for showing prejudice is low. This Court will give an appellant the benefit of the doubt and find that “there is material prejudice to the substantial rights of an appellant if there is an error and the appellant ‘makes some colorable showing of possible prejudice.’ ” United States v. Wheelus, 49 MJ 283, 289 (1998), quoting United States v. Chatman, 46 MJ 321, 323-24 (1997).

Unlike our recent decisions in United States v. Johnston, 51 MJ 227 (1999), and United States v. Lee, 50 MJ 296 (1999), we need not speculate about what the convening authority might have done if defense counsel had supported the request to disapprove the dishonorable discharge and substitute a general discharge. The record demonstrates that the convening authority would not have disapproved the dishonorable discharge, because he was unwilling to take the lesser step of commuting it to a bad-conduct discharge.

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