IN THE CASE OF
UNITED STATES, Appellee
Brian P. ADAMS, Specialist
Crim. App. No. 20000431
ERDMANN, J., delivered the opinion of the Court, in which CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
For Appellant: Captain Craig A. Harbaugh (argued); Colonel Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major Allyson G. Lambert (on brief); Lieutenant Colonel E. Allen Chandler Jr., and Major Jeannette K. Stone.
For Appellee: Captain Michael D. Wallace (argued); Lieutenant Colonel Margaret B. Baines, and Major Natalie A. Kolb (on brief); Major Jennifer H. McGee.
Military Judge: D. L. Wilkins
This opinion is subject to editorial correction before final publication.
Judge ERDMANN delivered the opinion of the Court.
Specialist Brian P. Adams was tried by a military judge sitting as a general court-martial. He was charged with rape and adultery in violation of Articles 120 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 920, 934 (2000), respectively. He entered pleas of not guilty to the adultery charge and guilty to the lesser-included offense of attempted rape in violation of Article 80, UCMJ, 10 U.S.C. § 880 (2000). He was found guilty of both adultery and rape. His adjudged and approved sentence included a bad-conduct discharge, confinement for 14 months, total forfeitures, and reduction to the lowest enlisted grade.
Army court affirmed
WHETHER APPELLANT’S APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
We find that Adams has failed to meet the prejudice component of the ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668 (1984), and therefore affirm the Army Court of Criminal Appeals.
record of trial was subsequently forwarded to the Army Court of
Appeals for review pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c)
(2000). Captain Maher was initially
Maher continued to represent
Apparently Mr. Cassara was still working behind the scenes during this timeframe. According to Mr. Cassara, in May 2001, he researched and drafted an appellate brief for SPC Adams. Mr. Cassara also alleges that he personally discussed the case with CPT Maher in June or July of 2001. Finally, Mr. Cassara remembers either sending or attempting to send a copy of the finished brief to CPT Maher. Supposedly due to a “miscommunication” between civilian and military appellate defense counsel, Mr. Cassara believed that the brief was filed by CPT Maher sometime in June or July of 2001. There is no evidence in the file that it was ever received by the [Defense Appellate Division], nor is there any evidence that the brief was filed with the [Army Court of Criminal Appeals]. Mr. Cassara maintains that he experienced “computer problems” that rendered it impossible for him to be certain that CPT Maher received the brief that he believes he forwarded.
he left active duty, Captain Maher was succeeded by Captain Richardson
Richardson was succeeded by Captain Carrier as appellate defense
counsel. Captain Carrier did communicate
Pursuant to U.S. v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and Army Court of Criminal Appeals Rule 15.3(b) appellant asks this Court to consider the issue raised in the Appendix as well as those matters raised to the convening authority pursuant to Rule for Court[s]-Martial 1105.
matters raised in the R.C.M. 1105 submission to the convening authority
included a challenge to the military judge’s ruling admitting
Army court affirmed the trial court’s findings and sentence in a per curiam decision. That opinion noted that the court had considered “the
personally specified by the appellant.”
the filing of the petition with this Court, Captain Carrier became
aware of Mr.
Cassara’s involvement in
accused has the right to effective representation by counsel through
period of review following trial, including representation before the
Criminal Appeals and our Court by appellate counsel appointed under
UCMJ, 10 U.S.C. § 870 (2000).” Diaz v. The Judge Advocate General of
59 M.J. 34, 37 (C.A.A.F. 2003)(citing United
v. Palenius, 2 M.J. 86 (C.M.A. 1977)). See also United States v. Dorman, 58
297 (C.A.A.F. 2003) (“[I]ndividuals accused
shall have the assistance of counsel for their defense through
their appeal. . . . This right includes
the right to the effective assistance of counsel on appeal.”); United
v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000)(“[T]he right of a
accused to effective assistance of counsel after his trial is a
Claims that appellate defense counsel have rendered ineffective assistance are measured by the same test applicable to such claims lodged against a trial defense counsel.
burden to show prejudice is met when the appellant shows that appellate
“counsel’s errors were so serious as to deprive the [appellant] of a
[appellate proceeding] . . . whose result is reliable.”
There is, however, no particular order in which the two components must be addressed.
[A] 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 object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffective claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.
Assuming without deciding therefore, that civilian defense counsel’s failure to file a notice of appearance with the Court of Criminal Appeals, the lack of communication among the various appellate defense counsel and the failure to file civilian counsel’s substantive brief before the Army court was deficient performance, we turn to the prejudice component of the test for ineffective assistance.6
appellant has the right to representation before the Army Court of
Appeals by both detailed military and civilian counsel.
See Article 70(c)-(d). In
such cases, the civilian counsel normally
exercises the responsibilities of lead counsel for the defense. See United States v. May, 47
M.J. 478, 481 (C.A.A.F. 1998)(citing United
v. Tavolilla, 17 C.M.A. 395, 38 C.M.R.
(1968)). In analyzing
United States v. May, 47 M.J. 478 (C.A.A.F. 1998),
the presumption of prejudice, this record does not support a conclusion
the issue was fully litigated on the record, the military judge found,
by a preponderance
of the evidence, that
While we neither condone the lack of communication between appellate counsel nor derogate the value of a researched brief as an aid to an appellate court, we find that the result would have been no different had Mr. Cassara’s brief been properly filed and considered by the Army court. See McConnell, 55 M.J. at 482 (finding no prejudice where the appellant failed to show a “reasonable probability” that a motion not filed would have been meritorious). Several factors lead us to that conclusion.
we note that a brief by Mr. Cassara
appears in the
record both as an attachment to Appellant’s motion to withdraw his
this Court and as an attachment to his subsequent motion for
the Court of Criminal Appeals. The brief
raised a single issue of law regarding the admissibility of Appellant’s
pretrial statement, and did not address the unique responsibilities of
Court of Criminal Appeals under Article 66(c), such as determination of
questions of fact or sentence appropriateness.
Our Court has discretion to resolve such issues of law at our
to remand a case for further proceedings at the Court of Criminal
Appeals. In the present case, the voluntariness
of the pretrial statement was fully litigated and comprised a
portion of the record of trial. The
brief does not add significant arguments to the matters advanced at
trial. Accordingly, we need not return the
the Court of Criminal Appeals for further consideration of whether
performance was deficient because we conclude that any alleged
appellate counsel did not deprive
we note that a Court of Criminal Appeals is charged by the UCMJ with
responsibility of reviewing the “entire record” and approving “only
findings of guilty and the sentence or such part or amount of the
it finds correct in law and fact.”
Article 66(c). The Court of
Criminal Appeals was required to independently review the record of
including the extensive litigation in the record regarding Appellant’s
statement. We do not minimize the role
of effective advocacy during Article 66(c) review.
Courts of Criminal Appeals, however, are
statutorily charged with reviewing the entire record for law and fact,
there is no indication they failed to perform this duty here in
legal issue that was fully litigated on the record at trial. See
the merits brief specifically directed the Army court’s attention to
do not condone the poor communications and other circumstances that
brief by Mr. Cassara to be lost or
misplaced. Under the circumstances
presented in this case, any deficiency in counsel’s performance did not
decision of the United States Army Court of Criminal Appeals is
1 The Government accepted the
statement of facts set forth in
2 A “Pro Forma”
or “Merits” pleading
is provided for by Internal Rules of Practice and
5 An appellant’s
burden is heavy because counsel is presumed to have performed in a
professional manner. To overcome this
presumption, an appellant must show specific defects in counsel’s
that were “unreasonable under prevailing professional norms.”
1. Are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions . . . ?
2. If they are true, did the level of advocacy “fall measurably below the performance . . . [ordinarily expected] of fallible lawyers”?
3. If ineffective assistance of counsel is found to exist, “is . . . there . . . a reasonable probability that, absent the errors, [there would have been a different result]?”
United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)(citations omitted). See also United States v. Grigoruk, 56 M.J. 304, 307 (C.A.A.F. 2002).
6 The Government conceded in its Final Brief “that civilian appellate defense counsel provided ineffective assistance of counsel in that he failed to ensure that his brief was filed in a timely fashion.”