IN THE CASE OF
UNITED STATES, Appellee
Charles W. DAVIS, Lieutenant Commander
Crim. App. No. 9600585
ERDMANN, J., delivered the opinion of the Court, in which GIERKE, C.J., CRAWFORD, EFFRON, and BAKER, JJ., joined.
For Appellant: Captain Richard A. Viczorek, USMC (argued); Lieutenant Travis J. Owens, JAGC, USNR (on brief).
For Appellee: Lieutenant Craig Poulson, JAGC, USN (argued); Lieutenant Colonel William K. Lietzau, USMC, and Lieutenant Commander Monique A.S. Allen, JAGC, USNR (on brief); Colonel M.E. Finnie, USMC, Commander Charles N. Purnell, JAGC, USN, and Lieutenant Frank L. Gatto, JAGC, USNR.
Military Judge: Charles R. Hunt
This opinion is subject to editorial correction before final publication.
Judge ERDMANN delivered the opinion of the Court.
Lieutenant Commander (LCDR)
his initial appeal to this court,
hearing was held in January 2000 where the
military judge received evidence and made findings of fact. The Court of Criminal Appeals adopted the
findings of the military judge, rejected
Sixth Amendment guarantees that a servicemember tried by court-martial
receive competent, effective legal representation.
Commander Davis was a Naval Flight Officer assigned to the USS
65). At the time of trial he was
forty-two years old and had completed almost seventeen years of
military service. Because he had been
passed over for promotion
to commander twice,
He told you send him to prison, send him for as long as you feel that it’s necessary, but protect his family because he didn’t. The bottom line, that’s what happened, he didn’t protect them, but you have an opportunity to do what he didn’t. And punish him and send him to prison for as long as you think is necessary, add extra years if you -– to give the family money, if you think that you need to balance that, but he asks you to do that, and that’s what we’re asking today. Show some mercy for that family. You don’t have to show mercy for him, put him in jail, show mercy for the family because they need it right now and you’re the only ones that can give him -– give them that.
You have an actuarial table that I have given to you as Defense Exhibit B, and that shows you the value of retirement, and I think that’s probably the worst thing in his case is he actually was retirement-eligible. His family would have been taken care of financially and medically, but they’re not, but he’s still eligible for that. . . . Please consider not dismissing Lieutenant Commander Davis from the Navy. Arrangements can be made for his retirement to go to the family. He won’t get a dime, he’s going to be in prison. What’s he going to do with money? They will get medical benefits, they will get money, if he survives they can try to rebuild their lives, and we ask you to consider that and consider that family.
At the request of the
sentencing instruction was given informing the members that “[a]
deprives one of all retirement benefits[.]” As noted,
In a post-trial request for clemency,
A less immediate, but no less important reason to suspend the forfeiture of pay is that the feasibility of LCDR Davis receiving retirement pay is nonexistent. The members did not award a dismissal in this case to ensure that the family had access to financial and medical resources that they are desperately in need of. I researched the issue as to whether or not LCDR Davis would be allowed to retire and was dismayed to find that the system was not going to allow retirement despite the court-martial members[’] wishes.
defense counsel further explained that she had been
A show cause proceeding was initiated
almost a year later to determine whether
the DuBay hearing held in January 2000, Davis and his two
defense counsel testified about the advice
e. . . . Both counsel advised him that, even if he was not dismissed as a result of the court-martial, he would unquestionably have to go through the administrative discharge process. Counsel believed that, armed with a member’s [sic] sentence of no dismissal, they could credibly argue for a favorable result at a [Board of Inquiry]. A favorable result would be not to receive an other than honorable discharge. Such a result would raise the issue of TERA eligibility. . . . At that point, the worst case for LCDR Davis, that is if BUPERS [Bureau of Naval Personnel] found LCDR Davis ineligible for TERA, would still entitle him to severance pay and the limited attendant military benefits. All of these consequences were communicated to LCDR Davis.
. . . .
i. After the member’s [sic] clear rejection of LCDR Davis’s credibility and his resulting conviction, the defense counsel believed that arguing for more confinement in lieu of a dismissal was their only effective extenuation and mitigation strategy. . . . A sentence to no dismissal would preserve the possibility of maintaining an income stream for the family, as well as medical benefits. . . .
j. Defense counsel effected this strategy through LCDR Davis’s unsworn statement, LCDR Tinker’s sentencing argument, and the defense’s tailored sentencing instruction on the effect of a dismissal. Because of their awareness of the limitations of bringing up collateral consequences of a conviction during pre-sentencing, defense counsel presented their strategy to the members in an unequivocal manner: he was retirement eligible under TERA, his family needed his retirement benefits, do not sentence him to a dismissal. As a result, the reality, which included the uncertainties of the administrative discharge process and the eligibility for TERA, was not brought to the attention of the members.
Despite framing a sentencing strategy centered on the possibility of TERA retirement, it was not until about a month after trial that defense counsel learned telephonically that the Bureau of Navy Personnel (BUPERS) “did not intend to allow LCDR Davis to retire under TERA.” Specifically, defense counsel was informed during that phone conversation that no TERA retirement would be considered unless pending disciplinary action was “resolved in favor of the member” by acquittal.
The Sixth Amendment right to effective assistance of counsel at trials by court-martial is a fundamental right of servicemembers. United States v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000)(citing United States v. Palenius, 2 M.J. 86 (C.M.A. 1977)). In reviewing claims that counsel rendered ineffective representation we apply the two-pronged test for ineffective assistance of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The burden on each prong rests with the appellant challenging his counsel’s performance.
an appellant must show that counsel’s performance fell below an
standard of reasonableness -– that counsel was not functioning as
within the meaning of the Sixth Amendment.
second prong of an appellant's burden requires a showing of prejudice
from counsel’s deficient performance.
The appellant must demonstrate such prejudice as to indicate a
a fair trial or a trial whose result is unreliable.
assistance of counsel involves a mixed question of law and fact.
entire defense sentencing strategy was to preserve an opportunity for
to the question of whether
1. We ask first whether the Appellant's allegations are true and, if so, whether there is a reasonable explanation for counsel’s actions.
2. Next, if the allegations are true, we review whether defense counsel’s level of advocacy fell measurably below the performance standards ordinarily expected of fallible lawyers.
3. Finally, if we find that defense counsel was ineffective, we test for prejudice and determine whether there is a reasonable probability that, absent the error, there would have been a different result.
critical portion of
reasonable strategic or tactical reason for the flawed advice. The flaw is a direct result of not
investigating the meaning and effect of eligibility language in the
regulation as it applied to a member facing adverse action.
that the application and administration of TERA in
the Navy is as confusing as the Government claims, that fact itself
greater incentive for counsel to investigate and research the area
before formulating an entire sentencing strategy and advising a client
pursue that course. Yet counsel did not
know that under the Navy rules and policy at the time, TERA was not an
in this case. Consequently, they could
not and did not correctly advise
We next must determine whether counsels’
performance fell below that ordinarily expected of fallible lawyers. We find that it did. Familiarity
with the facts and applicable law
are fundamental responsibilities of defense counsel.
See Wiggins v. Smith, 539 U.S.
510, 521 (2003); Strickland v. Washington, 466 U.S. at 690-91
choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices
after less than complete investigation are reasonable precisely to the
that reasonable professional judgments support the limitations on
investigation.”). A reasonable
attorney acting on behalf of a client would have researched the meaning
effect of TERA’s conditional language prior to embarking on a trial or
sentencing strategy. The failure to
investigate this critical component of the defense sentencing strategy
precluded counsel from exercising informed judgment and fully informing
of the possible consequences of the strategy.
We must next test for prejudice and
determine whether there is a reasonable probability that, absent the
there would have been a different result.
Had Davis and his counsel known that there was no possibility of
retirement except for a Secretarial waiver, there would have been
incentive for Davis to ask for increased confinement to offset a
punitive dismissal. Following counsel’s
argument that the members should maximize
The decision of the Navy-Marine Corps Court of Criminal Appeals is affirmed as to the findings, but is reversed as to the sentence. The sentence is set aside. The record is returned to the Judge Advocate General of the Navy. A rehearing on the sentence is authorized.
1 The Temporary Early Retirement Authority (TERA) was enacted in § 4403 of Pub. L. No. 102-484, 106 Stat. 2702 (1992). To implement the program, the Navy promulgated NAVADMIN 093/95, Temporary Early Retirement Program for Officers.
2 Paragraph 7, Subsection B, of NAVADMIN 093/95 provided: “An officer who is under adverse disciplinary . . . action under the [UCMJ] . . . may not apply for early retirement until the action is resolved in favor of the member.” (Emphasis added.)
3 The government argued that