OPINION OF THE COURT
CARMICHAEL, Judge:
Contrary to his pleas, the appellant was convicted of burglary and assault with intent to commit rape in violation of Articles 129 and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 929 and 934 (1982).
Two of the appellant’s three assignments of error challenge the sufficiency of the evidence to sustain this conviction. The appellant argues that his conviction must be reversed because the government failed to prove that the victim was not his wife.
Admittedly, trial counsel did not ask the victim whether or not she was the wife of appellant. However, we, like the military judge who was the trier of fact, are convinced beyond a reasonable doubt of the “factual existence of each element” of the two offenses. United States v. Guilford, 8 M.J. 598, 600 (A.C.M.R.1979), petition denied, 8 M.J. 242 (C.M.A.1980).
The victim’s uncontroverted testimony provides ample proof that she was not the wife of the appellant. The victim, Private First Class B, testified that she was sleeping in her barracks room when awakened by someone attempting to pull her pants down. The hour was approximately 4:10 a.m. She screamed, scrambled out of her bed, and ran into the hall. While pounding on the door of another soldier’s room to get help, she saw the appellant, au naturel, hurriedly leave her room with his clothes in hand and run down the hall. Private First Class B was familiar with the appellant’s appearance, at least his facial features, his “large head,” and his “very stocky” build, since she and the appellant were in the same unit and had on occasion worked together. Further, the appellant’s and Private First Class B’s rooms were at opposite ends of the same hall.
Prior to the assault, Private First Class B had left the door to her room unlocked in order to allow a female friend to wake her the next morning. She did not give the appellant permission to enter her room, nor did she consent to his touching her or attempting to remove her pants. She was certain that it was the appellant who assaulted her.
There was no direct evidence that Private First Class B and appellant were not married. But based on Private First [520]*520Class B’s testimony and the other evidence of record, there is sufficient circumstantial evidence to prove that Private First Class B was not the wife of the appellant.
Determining what evidence was necessary to prove the charged offenses may have caused the trial counsel some confusion. It is not an element of burglary that the victim is not the husband or wife of the perpetrator. However, it is an essential element of burglary that at the time of the unlawful entry the accused intended to commit some other offense. In the instant case the alleged burglary was with the intent to commit rape. This meant that the trier of fact had to be convinced beyond a reasonable doubt that the accused intended each element of rape at the time of the burglary. The same is true where, as here, the charged offenses include assault with intent to commit rape. The fact finder must be convinced that the accused specifically intended to rape the victim at the time of the assault.1 If the case were being tried before court members, the military judge would be required to include in his instructions on findings the elements of the allegedly intended rape.
Thus, when the government has the burden of proving the intent to commit a separate offense as an element of the offense charged, the trial counsel should be thoroughly familiar with the elements of both offenses. Also, in cases where the intent to commit a separate offense is an essential element of the alleged offense, the trial counsel, in preparing for trial, should review the pertinent instructions on the elements of offenses in the Military Judges’ Benchbook.2 This review will assist counsel in assuring that the evidence needed to prove an essential element is not inadvertently omitted.
The remaining assignment of error is one of particular concern to this court. Our concern stems both from the nature of the error and the increasing frequency with which it is being raised at the appellate level. The appellant asserts that his trial defense counsel was ineffective in not informing the convening authority of the military judge’s recommendation that a portion of the sentence be suspended.3 Appellate government counsel agrees that the recommendation should have been communicated to the convening authority and that, under the rationale of United States v. Davis, 20 M.J. 1015 (A.C.M.R.1985), a new action is required. In Davis, this court held that a defense counsel’s failure to apprise the convening authority of the military judge’s recommendation to suspend the adjudged discharge constituted ineffective assistance of counsel. We find no ground upon which to distinguish the instant case from Davis.
It is the defense counsel, not the staff judge advocate, who is responsible for informing the convening authority that the sentencing authority recommended that the sentence, or a portion thereof, be suspended. See United States v. Davis, 20 M.J. 980, 982-83 (A.C.M.R.), petition denied, 21 M.J. 315 (C.M.A.1985). No matter how ably a trial defense counsel represents an accused during trial, he or she remains subject to challenge for a breach of professional competence after the trial. While “[ineffective assistance of counsel is not an allegation which implies professional derelictions of a minor nature,” United States v. McClelland, 25 M.J. 903, 904, ACMR 8701012, slip op. at 2 (A.C.M.R. 4 Mar. 1988), defense counsel’s post-trial representation may be so flawed that there is a “ ‘reasonable probability’ of outcome-determinative prejudice.” Davis, 20 M.J. at 1018. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also United States v. Scott, 24 M.J. 186 (C.M.A.1987).
[521]*521With regard to the allegation that trial defense counsel was ineffective in his post-trial representation, we note the strong mitigation evidence introduced during the sentencing phase of the appellant’s trial. The measure of defense counsel’s effectiveness at this stage was the military-judge’s recommendation for suspended confinement. After the judge had sentenced the appellant to a dishonorable discharge, confinement for three years, forfeiture of all pay and allowances, and reduction to the grade of Private E-l, he recommended the convening authority suspend for one year the confinement in excess of two years. The convening authority was not informed of the judge’s recommendation and approved the sentence as adjudged.4 Although a clemency petition was submitted to the convening authority, no mention was made of the military judge’s recommended suspension. If this were a conscious omission by the defense counsel, its tactical soundness escapes us.
Under these circumstances, we hold the defense counsel’s post-trial failure materially prejudiced a substantial right of the appellant. UCMJ, art. 59(a), 10 U.S.C. § 859
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
CARMICHAEL, Judge:
Contrary to his pleas, the appellant was convicted of burglary and assault with intent to commit rape in violation of Articles 129 and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 929 and 934 (1982).
Two of the appellant’s three assignments of error challenge the sufficiency of the evidence to sustain this conviction. The appellant argues that his conviction must be reversed because the government failed to prove that the victim was not his wife.
Admittedly, trial counsel did not ask the victim whether or not she was the wife of appellant. However, we, like the military judge who was the trier of fact, are convinced beyond a reasonable doubt of the “factual existence of each element” of the two offenses. United States v. Guilford, 8 M.J. 598, 600 (A.C.M.R.1979), petition denied, 8 M.J. 242 (C.M.A.1980).
The victim’s uncontroverted testimony provides ample proof that she was not the wife of the appellant. The victim, Private First Class B, testified that she was sleeping in her barracks room when awakened by someone attempting to pull her pants down. The hour was approximately 4:10 a.m. She screamed, scrambled out of her bed, and ran into the hall. While pounding on the door of another soldier’s room to get help, she saw the appellant, au naturel, hurriedly leave her room with his clothes in hand and run down the hall. Private First Class B was familiar with the appellant’s appearance, at least his facial features, his “large head,” and his “very stocky” build, since she and the appellant were in the same unit and had on occasion worked together. Further, the appellant’s and Private First Class B’s rooms were at opposite ends of the same hall.
Prior to the assault, Private First Class B had left the door to her room unlocked in order to allow a female friend to wake her the next morning. She did not give the appellant permission to enter her room, nor did she consent to his touching her or attempting to remove her pants. She was certain that it was the appellant who assaulted her.
There was no direct evidence that Private First Class B and appellant were not married. But based on Private First [520]*520Class B’s testimony and the other evidence of record, there is sufficient circumstantial evidence to prove that Private First Class B was not the wife of the appellant.
Determining what evidence was necessary to prove the charged offenses may have caused the trial counsel some confusion. It is not an element of burglary that the victim is not the husband or wife of the perpetrator. However, it is an essential element of burglary that at the time of the unlawful entry the accused intended to commit some other offense. In the instant case the alleged burglary was with the intent to commit rape. This meant that the trier of fact had to be convinced beyond a reasonable doubt that the accused intended each element of rape at the time of the burglary. The same is true where, as here, the charged offenses include assault with intent to commit rape. The fact finder must be convinced that the accused specifically intended to rape the victim at the time of the assault.1 If the case were being tried before court members, the military judge would be required to include in his instructions on findings the elements of the allegedly intended rape.
Thus, when the government has the burden of proving the intent to commit a separate offense as an element of the offense charged, the trial counsel should be thoroughly familiar with the elements of both offenses. Also, in cases where the intent to commit a separate offense is an essential element of the alleged offense, the trial counsel, in preparing for trial, should review the pertinent instructions on the elements of offenses in the Military Judges’ Benchbook.2 This review will assist counsel in assuring that the evidence needed to prove an essential element is not inadvertently omitted.
The remaining assignment of error is one of particular concern to this court. Our concern stems both from the nature of the error and the increasing frequency with which it is being raised at the appellate level. The appellant asserts that his trial defense counsel was ineffective in not informing the convening authority of the military judge’s recommendation that a portion of the sentence be suspended.3 Appellate government counsel agrees that the recommendation should have been communicated to the convening authority and that, under the rationale of United States v. Davis, 20 M.J. 1015 (A.C.M.R.1985), a new action is required. In Davis, this court held that a defense counsel’s failure to apprise the convening authority of the military judge’s recommendation to suspend the adjudged discharge constituted ineffective assistance of counsel. We find no ground upon which to distinguish the instant case from Davis.
It is the defense counsel, not the staff judge advocate, who is responsible for informing the convening authority that the sentencing authority recommended that the sentence, or a portion thereof, be suspended. See United States v. Davis, 20 M.J. 980, 982-83 (A.C.M.R.), petition denied, 21 M.J. 315 (C.M.A.1985). No matter how ably a trial defense counsel represents an accused during trial, he or she remains subject to challenge for a breach of professional competence after the trial. While “[ineffective assistance of counsel is not an allegation which implies professional derelictions of a minor nature,” United States v. McClelland, 25 M.J. 903, 904, ACMR 8701012, slip op. at 2 (A.C.M.R. 4 Mar. 1988), defense counsel’s post-trial representation may be so flawed that there is a “ ‘reasonable probability’ of outcome-determinative prejudice.” Davis, 20 M.J. at 1018. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also United States v. Scott, 24 M.J. 186 (C.M.A.1987).
[521]*521With regard to the allegation that trial defense counsel was ineffective in his post-trial representation, we note the strong mitigation evidence introduced during the sentencing phase of the appellant’s trial. The measure of defense counsel’s effectiveness at this stage was the military-judge’s recommendation for suspended confinement. After the judge had sentenced the appellant to a dishonorable discharge, confinement for three years, forfeiture of all pay and allowances, and reduction to the grade of Private E-l, he recommended the convening authority suspend for one year the confinement in excess of two years. The convening authority was not informed of the judge’s recommendation and approved the sentence as adjudged.4 Although a clemency petition was submitted to the convening authority, no mention was made of the military judge’s recommended suspension. If this were a conscious omission by the defense counsel, its tactical soundness escapes us.
Under these circumstances, we hold the defense counsel’s post-trial failure materially prejudiced a substantial right of the appellant. UCMJ, art. 59(a), 10 U.S.C. § 859(a) (1982). Therefore, waiver is inoperable. Had the convening authority been informed of the military judge’s recommendation, we believe there is a “reasonable probability” that he would have suspended one year of the appellant’s confinement. Since we do not have the power to suspend and since we are not convinced that the term of confinement is inappropriate, we will return this case to the convening authority.
In our view, a convening authority normally cannot fulfill the responsibility of individualized sentence consideration when not informed of the sentencing authority’s recommendation for clemency. While it is the trial defense counsel’s duty to so inform the convening authority, we reiterate the advice Senior Judge De Giulio gave to staff judge advocates in an earlier case. “[P]rudent staff judge advocates may be well advised to include in their [post-trial] recommendation a military judge’s suspension recommendation, even though its inclusion is not required ...” United States v. Peek, 24 M.J. 750, 751 n. 3 (A.C.M.R.), review denied, 26 M.J. 80 (C.M.A.1988). To this advice we would now add that staff judge advocates would be well advised to include a military judge’s clemency recommendation in their post-trial recommendations. Because, although the error may be that of trial defense counsel, it is staff judge advocates who prepare new post-trial recommendations.
The action of the convening authority, dated 3 September 1987, is set aside. The record of trial is returned to The Judge Advocate General for new proceedings under the provisions of Article 60, UCMJ, 10 U.S.C. § 860, and Rules for Courts-Martial 1105 and 1106,5 as well as a new review and action by the same or a different convening authority.
Chief Judge HOLDAWAY concurs.