IN THE
CASE OF
UNITED
STATES, Appellee
v.
Spencer W.
QUICK, Private
No.
03-0566
Crim. App.
No.
200001657
Argued
Decided
ERDMANN,
J., delivered the opinion of the Court, in which GIERKE, EFFRON, and
BAKER,
JJ., joined. CRAWFORD, C.J., filed an
opinion concurring in the result.
Counsel
For Appellant:
Commander
Michael J. Wentworth, JAGC, USNR (argued); Lieutenant Commander
Eric J.
McDonald, JAGC, USN (on brief).
For Appellee: Lieutenant Christopher J. Hajec, JAGC, USNR (argued); Commander
Robert P. Taishoff, JAGC, USN (on
brief); Lieutenant Frank L. Gatto,
JAGC, USN.
Military Judge:
R. H. Kohlmann
This
opinion is subject to editorial correction before final publication.
Judge
ERDMANN delivered the opinion of the Court.
Appellant,
Private (E-1) Spencer W. Quick, was tried by a military judge sitting
as a
general court-martial. He entered guilty
pleas to rape, wrongful appropriation, robbery, assault with the intent
to
inflict grievous bodily harm and kidnapping in violation of Articles
120, 121,
122, 128 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§
920,
921, 922, 928 and 934 (2000), respectively.
Following an inquiry into the providence of his pleas, he was
convicted
of all charges. Quick was sentenced to a
dishonorable discharge, confinement for 65 years and forfeiture of all
pay and
allowances. Pursuant to a pretrial
agreement, the convening authority approved the sentence but suspended
all
confinement in excess of 30 years.1
The
Navy-Marine Corps Court of Criminal Appeals reviewed the conviction
pursuant to
Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).
That court consolidated the robbery and aggravated assault
specifications into a single specification under Article 122, affirmed
the
consolidated specification and remaining charges, reassessed the
sentence, and
affirmed the adjudged sentence as approved by the convening authority.
Quick
petitioned this Court and we granted review of the following issue:
WHETHER THE LOWER COURT ERRED IN CONCLUDING
THAT APPELLANT WAS NOT PREJUDICED BY HIS TRIAL DEFENSE COUNSEL’S
CONCESSION
DURING HIS SENTENCING ARGUMENT THAT APPELLANT DESERVED A DISHONORABLE
DISCHARGE, AND THAT CONFINEMENT FOR 40 YEARS OR LESS WAS NOT EXCESSIVE,
BECAUSE
“THE REASONABLE LIKELIHOOD THAT THE APPELLANT WOULD HAVE RECEIVE[D]
AT LEAST A DISHONORABLE DISCHARGE AND CONFINEMENT WELL IN EXCESS OF 40
YEARS
CANNOT BE DOUBTED.”
We find that Quick
has failed to meet his burden of showing prejudice under the
ineffective
assistance of counsel test set forth in Strickland v. Washington,
466
U.S. 668 (1984) and therefore affirm the decision of the Court of
Criminal
Appeals.
FACTS
Quick’s
guilty pleas arose out of a number of offenses he committed in the
early
morning hours of
Following
the assault, Quick drove the taxi from
Based
on his pleas, his admissions during the providence inquiry and the
stipulation
of fact, the military judge found Quick guilty of rape, wrongful
appropriation
of a vehicle, robbery, aggravated assault and kidnapping.
Quick was advised by the military judge that
based on his pleas alone he faced a maximum sentence that included,
inter alia, a dishonorable discharge and
confinement for life
without parole.
During
his sentencing case, Quick made a brief unsworn
statement in which he apologized to his victim, his mother, and the
Marine
Corps. He asked for forgiveness but made
no mention of any specific type of punishment.
Defense counsel, in concluding his sentencing argument, stated:
[Quick] is not the animal that the [G]overnment
presents to you and says, [“]Lock
him up and throw away the key and let him die behind bars.[”] The defense has no reason to argue a
lesser type of discharge other than a dishonorable is proper in this
case. The defense concedes that [it] is. This type of conduct truly deserves to be
labeled as dishonorable. The other
punishments are collateral. They
have no real consequences in the outcome
of this case. But the real issue is: How
much time is enough? How long does he deserve to be locked up[?]
He
won’t
go . . . prey on people again. He does
not have that tendency in his life.
There’s no indication that he’s ever been violent.
He’s never abused other women. And
that’s a predicament that he won[’]t give
us in the future, especially when he gets an
opportunity to receive the type of treatment that he does.
A period of confinement in a term of years is
adequate, Your
Honor, to punish him, to let society know he has been punished, to
allow him to
accomplish one of the goals of punishment in a sentence of
rehabilitation, and
to give him light at the end of the tunnel that may allow him, one day,
to get
out and adjust and live life again.
The
defense will argue that any period of confinement in excess of 40 years
is
excessive. It is
not
necessary. Not for the military judge,
who has a horribly difficult task here, to work through all of this
stuff and
try to understand this particular individual.
And to try to scope and mold a punishment that will adequately
punish
him and serve the needs of justice in the military in that particular
accused,
Your Honor.
(Emphasis
added.) The military judge sentenced
Quick to a dishonorable discharge, confinement for 65 years and
forfeiture of
all pay and allowances. Pursuant to
Quick’s pretrial agreement, the convening authority suspended all
confinement
in excess of 30 years for a period of 12 months following Quick’s
release from
confinement and approved the remainder of the sentence as adjudged.
Before
the Court of Criminal Appeals, Quick claimed that his counsel provided
ineffective assistance when he “conceded the appropriateness of a
dishonorable
discharge and confinement of up to 40 years.”
The Court of Criminal Appeals concluded that defense counsel’s
sentencing argument constituted deficient performance when he conceded
the
appropriateness of the dishonorable discharge where the record did not
reflect Quick’s agreement.
The lower court concluded, however, that Quick had not
demonstrated
prejudice and therefore failed to carry his burden of demonstrating
ineffective
assistance of counsel.
On
appeal to this Court, Quick again raises the argument that his counsel
provided
ineffective assistance in conceding the appropriateness of a
dishonorable
discharge and confinement of up to 40 years.
In addition, Quick asserts that the Court of Criminal Appeals
applied
the wrong standard in determining that there was no prejudice. We review this decision of the Court of
Criminal Appeals de novo as a question of law.
See United
States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002); United States v. Sales, 56 M.J. 255
(C.A.A.F. 2002).
DISCUSSION
Quick’s
claim that defense counsel rendered ineffective assistance is reviewed
under
the standards set forth by the Supreme Court in Strickland v.
Washington,
466 U.S. 668 (1984). In Strickland,
the Supreme Court stated that the “benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the
proper
functioning of the adversarial process that the trial cannot be relied
on as
having produced a just result.”
A
convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction . . . has two
components. First, the defendant must show
that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious that counsel was not
functioning as
the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is
reliable. Unless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from a
breakdown
in the adversarial process that renders the result unreliable.
The
burden on an appellant is heavy because counsel is presumed to have
performed
in a competent, professional manner. To
overcome this presumption, an appellant must show specific defects in
counsel’s
performance that were “unreasonable under prevailing professional
norms.”
There
is, however, no particular order that must be followed in analyzing an
ineffective assistance of counsel claim.
“[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. . . . If it
is easier to dispose of an ineffectiveness claim on the ground of lack
of
sufficient prejudice, which we expect will often be so, that course
should be
followed.” Strickland, 466 U.S.
at 697; see also United States v. Adams, __ M.J. __, __
(C.A.A.F.
2004); United States v. McConnell, 55 M.J. 479, 481 (C.A.A.F.
2001).
Although
the Court of Criminal Appeals correctly concluded that the trial
defense
counsel improperly conceded the appropriateness of a dishonorable
discharge
where the record was silent as to the wishes of his client, see,
e.g., United
States v. Dresen, 40 M.J. 462, 465
(C.M.A. 1994),
that court did not address trial defense counsel’s concession regarding
the
appropriate amount of confinement.
Because we can resolve this case by addressing the prejudice
prong of Strickland,
we need not decide whether the trial defense counsel’s concession as to
confinement met the first prong of Strickland.
In addressing the prejudice prong, it is
first necessary to examine Quick’s claim that the Court of Criminal
Appeals
used the wrong standard in analyzing prejudice.
The
Court of Criminal Appeals properly
cited Strickland and the appropriate standard for evaluating
ineffective
assistance of counsel. That court went
on, however, to cite our decision in United States v. Pineda,
54 M.J.
298 (C.A.A.F. 2001), a case that also involved a claim of
ineffectiveness of
counsel based on the concession of a punitive discharge by the defense
counsel
where the record did not reflect the appellant’s agreement. Although this Court relied on the Strickland
prejudice standard in Pineda, the opinion did include the
following
language: “[W]here the facts of a given
case compel a conclusion that a bad-conduct discharge was reasonably
likely, we
do not normally order a new sentence hearing.”
Quick
argues that whether a particular result was “reasonably likely” is not
the
proper standard and goes on to argue that the “Court of Criminal
Appeals must
be persuaded beyond a reasonable doubt that its reassessment has
rendered that
constitutional deprivation harmless.” At
oral argument the Government asserted that while the Strickland
test is
generally the appropriate test for assessing prejudice, Pineda
established a different test for ineffective assistance of counsel
cases that
involve an improper concession of a punitive discharge by defense
counsel.
We
agree with Quick that the Court of Criminal Appeals utilized the wrong
standard
in analyzing the prejudice prong of Strickland, but disagree
with his
assertion that “beyond a reasonable doubt” is the correct standard. Quick appears to argue that once he meets the
first prong (deficient performance) under Strickland, he has
shown a
constitutional violation which shifts the burden to the Government to
demonstrate that the deficient performance was harmless beyond a
reasonable
doubt. Quick misperceives the test. The Supreme Court in Strickland
established a two-prong test which must be met before there is a
finding of
constitutional violation. Absent a
showing of both deficient performance and prejudice, there is no
constitutional
violation under Strickland.
The
second prong of the Strickland test does not include the
“reasonably
likely” language relied on by the Court of Criminal Appeals. Rather, the appropriate test for prejudice
under Strickland is whether there is a reasonable probability
that, but
for counsel’s error, there would have been a different result. 466
In
Pineda, this Court assessed prejudice “under the second prong of
the
test in Strickland.” 54 M.J. at 301. To
the extent that the language in Pineda referenced by the Court
of
Criminal Appeals has caused uncertainty in regard to the proper
standard for
prejudice in cases involving concessions of punitive discharges, we
take this
opportunity to clarify that the Strickland test is the proper
vehicle
for reviewing a claim that a defense counsel provided ineffective
assistance of
counsel by conceding the appropriateness of a punitive discharge.
We now turn to the
prejudice prong of Strickland – is
there a reasonable probability that, absent the error, there would have
been a
different result?
Quick’s
pleas, his admissions during the providence inquiry and the stipulation
of fact
reveal a brutally senseless crime. For
no explained reason, and certainly with no provocation, Quick struck
the taxi
driver with a rock several times inflicting, among other injuries, a
“severe
concussion . . . deep cuts to the head . . . swelling and discoloration
of the
tongue, and a brain contusion.” This
assault was but a first step in a course of conduct marked by a total
disregard
for the physical well-being and human dignity of the victim. After having beaten,
kidnapped and raped her, Quick ultimately abandoned her in a rural area.
Given
the nature of the crime there is no reasonable probability that, even
if
defense counsel had not conceded a dishonorable discharge and argued
for 40
years confinement, there would have been a different result. This is underscored by the fact that this was
a trial by military judge alone. The
record does not reveal that the military judge was perceptibly swayed
by
defense counsel’s concessions. To the
contrary, in the face of trial counsel’s argument that Quick be
confined for
life, the military judge appears to have exercised independent judgment
in
determining an appropriate sentence.
While
the Court of Criminal Appeals applied the wrong standard in their
prejudice
analysis, the result does not change.
Under the facts of this case, there is no reasonable probability
that,
absent the error, the result would have been different.
Quick has failed to meet his burden to
establish prejudice under the Strickland test.
DECISION
The
decision of the United States Navy-Marine Corps Court of Criminal
Appeals is
affirmed.
[1] The suspended
portion of Quick’s sentence terminates 12 months after he is released
from
confinement.
CRAWFORD,
Chief Judge (concurring in the
result):
I
agree with the majority that Appellant
suffered no prejudice from defense counsel’s allegedly deficient
performance. I disagree, however, that
“trial defense counsel improperly conceded [during the sentencing
argument] the
appropriateness of a dishonorable discharge” and that any period of
confinement
in excess of forty years is excessive. ___ M.J. (8).
In my view, counsel’s concession was an appropriate tactical
decision
aimed to ensure his credibility with the court-martial and assess
reasonable
sentencing probabilities. To this end,
counsel would have been remiss not to concede the appropriateness of a
dishonorable discharge and a lengthy period of confinement. Accordingly, I concur only in the result of
the lead opinion.
Both the Sixth
Amendment and Article 27, Uniform Code of Military Justice, 10 U.S.C. §
827
(2000), guarantee an accused the significant right to effective
assistance of
counsel.
Defense
counsel’s concession in the instant
case was, in my view, a legitimate tactical decision to which this
Court should
afford great deference. “[C]onfessing a client’s shortcomings
.
. . is precisely the sort of calculated
risk that lies
at the heart of an advocate’s discretion.
By candidly acknowledging his client’s shortcomings, counsel
might have
built credibility with the jury and persuaded it to focus on the
relevant issues
in the case.”
I
do not
know how much salvage there is in these two boys . . . . [Y]our
Honor
would be merciful if you tied a rope around their necks and let them
die;
merciful to them, but not merciful to civilization, and not merciful to
those
who would be left behind.
Moreover,
defense counsel appropriately
realized that given the severity of Appellant’s offenses and the
resultant
injuries to the victim, counsel’s best argument was to limit the
difference
between the sentence cap on the pretrial agreement and any sentence
announced
and approved by the convening authority.
Appellant’s pretrial agreement permitted the convening authority
to
suspend any confinement in excess of 30 years.
Suspension of confinement, unlike disproval of confinement, can
be
revoked upon further misconduct by the accused.
Given Appellant’s established history of criminal offense and
alcohol
abuse, defense counsel astutely acknowledged the likelihood of future
misconduct, and therefore the likelihood of the suspension’s revocation. In short, by conceding that confinement over
40 years would be excessive, counsel in effect limited to ten years the
additional confinement Appellant would serve were his suspension
revoked.
Finally,
counsel’s concession as to
excessive confinement was also a legitimate attempt to avoid an
unfavorable
life sentence for Appellant. Appellant
would earn 10 days of “good time” credit each month for his 30 year
sentence,
but no “good time” credit for a life sentence.
Given
the reasonable tactical motives
behind defense counsel’s concession, as well as the substantial
deference this
Court should afford counsel when analyzing ineffective assistance
claims, I
cannot find the concession improper. On
the contrary, defense counsel’s actions on Appellant’s behalf were
entirely
consistent with the “wide range of reasonable professional assistance”
considered to be effective. Strickland,
466
* The current instruction is materially identical to the one in effect at the time of trial.