Petition for Writ of Certiorari — Marshall v. United States

Qaum, US.

() eth sD

96 996 DEC 20 19%

DAMMOE 05 THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

TECHNICAL SERGEANT LARRY E. MARSHALL,

PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Marge A. Overly

Captain, United States Air Force

Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767- 1562

December 1996

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces erred when it held that petitioner received the

effective assistance counsel envisioned by the Sixth

Amendment.

“ee

TABLE OF CONTENTS

Page

OPINIONS BELOW............. eebiras iesnk Orhan I

TTL Ws eakeepasekcAaesabavecianes l

CONSTITUTIONAL PROVISIONS INVOLVED......... l

DP aPee PTE COE REGARD ecdpviccscccectsusvesses I

REASON FOR GRANTING THE WRIT .............. 10

I Soe ECS ve a a CoS A case ROS we aes ee. 20

APPENDIX A (Opinion of the United States

Court of Appeals for the Armed Forces)................ la

APPENDIX B (Opinion of the United States

Air Force Court of Criminal Appeals) ................ 13a

APPENDIX C (Opinion of the United States

ak ok wee esavadeseseccss's 19a

iv

TABLE OF AUTHORITIES

Page

Supreme Court Cases:

Kimmelman v. Morrison, 477 U.S. 365 (1986). ...... 20

Strickland v. Washington, 466 U.S. 668

CESDTA eee W en risigeee seers. 10, 11, 13, 14, 16, 20

United States v. Morrison, 449 U.S. 361 (1981) ..... 12

Military Cases:

United States v. Dubay, 17 U.S.C.M.A. 147, 37

Ce Sak CECT ics bs cae Saas cays passim

United States v. Lonetree, 35 M.J. 396

88 OF Sp +s SR PS EE ew 11, 13

United States v. Morgan, 37 M.J. 407

CA TOR cc SEE SPR SeG rare ea as oh 16

United States v. Scott, 24 M.J. 186

ee RTD 2k sch ae iw hake pkean cai e a 10

State Case:

In re Alvernaz, 2 Cal. 4th 924, 830 P.2d 747

CCE, RO dy css 0's 4 bebe se aden es 11, 12,13

Federal Cases:

Brown v. Beto, 377 F.2d 950 (Sth Cir. 1967) ........ 19

Jones v. Murray, 947 F.2d 1106

CORD CT soo kik hale or os eh os KR 11

Lewandowski v. Makel, 949 F.2d 844

Te ot errr re rear Ty rr eer 12

United States v. Jones, 392 F.2d 567

GR Sas RI oo eo oko eeee eed heass eee eee 12

United States v. Rodriguez—Rodriguez, 929

Oe MO en cass ccke ce sndaves 12

Wellnitz v. Page, 420 F.2d 935

Re PT os as SG py eves PEPER 19

Federal Statutes:

28 U.S.C.A. § 1259(3) (West Supp. 1996)........... 1

10 U.S.C.A. § 867(a)(West Supp. 1996) ..........-. 1 :

Constitutional Provisions:

U.S. Constitution Amendment VI.................. ]

The petitioner, Technical Sergeant Larry E. Marshall,

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case on 30 September 1996.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, awaiting publication

— M.J.— (30 September 1996), is located at Appendix A.

The unpublished opinion of the United States Air Force Court

of Criminal Appeals (A.F. Ct. Crim. App., February 8 1995),

is located at Appendix B. The unpublished opinion of the

United States Air Force Court of Military Review (September

23, 1992) is located at Appendix C.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 30 September 1996. The

jurisdiction of this Court is invoked under 28 U.S.C.A. § 1259

(3) (West Supp.1996) and 10 U.S.C.A. § 867(a) (West

Supp. 1996).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment of the Constitution of the United

States provides in relevant part: :

In all criminal prosecutions, the petitioner shall enjoy the

right . . . to have the Assistance of Counsel for his defense.

STATEMENT OF THE CASE

The petitioner, after serving approximately 17 and one

half years in the United States Air Force, received two

“referral” Enlistment Performance Reports [EPR]. R. 15—16.

In an attempt to have these removed from his records he

sought legal advice from a civilian defense attorney, Mr.

Bernstein, who practiced military law in Fairfield, California.

At their first meeting, the petitioner expressed to Mr.

Bernstein his concern that his career was in jeopardy and his

desire to salvage it. R. 41.) He supplied the attorney with,

inter alia, copies of the EPR’s and two other associated

records of disciplinary actions.

Mr. Bernstein advised the petitioner that the process of

appealing the EPRs could be lengthy and that they would first

have to exhaust administrative remedies and then apply to the

Board of Correction of Military Records. Mr. Bernstein

discussed his fee with the petitioner, however, the petitioner

did not retain Mr. Bernstein on this occasion. R. 13-14.

On 22 December 1990, the petitioner was apprehended

at the gate of Travis Air Force Base for driving while

intoxicated. On 3 January 1991, the petitioner was offered an

Article 15 for willfully driving on a suspended license, and

drunk and disorderly conduct.

On or about 7 January 1991, the petitioner again met

with Mr. Bernstein. At the DuBay hearing, Mr. Bernstein

could not remember whether the petitioner had been offered

the Article 15 or had been merely advised that it would be

offered. R. 42. Although the petitioner admitted he was drunk

and disorderly, he stated that his license was not suspended at

that time.* Mr. Bernstein assumed an administrative discharge

would inevitably result from choosing an Article 15 as the

! All citations pertain to the record of the DuBay hearing. 17

U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

: Apparently, the Division of Motor Vehicles computer records had

not yet been updated to reflect that his suspended license was

recently reinstated. TSgt Marshall had verbally confirmed this for

himself through the local Fairfield police. See Civilian Counsel’s

“Response to SJA’s Post-trial Recommendation” at page 2. ROT

Volume I.

forum in which to handle the disciplinary action. At the

DuBay hearing, Mr. Bernstein could not recall the basis for

this assumption, other than his belief that the petitioner had

been told this by the commander or that the petitioner made

the assumption. R. 44-45. Mr. Bernstein never attempted to

validate the truth of this assumption through the petitioner’s

commander or anyone else. R. 46. In Mr. Bernstein’s opinion,

the petitioner had two alternatives, neither of which were

attractive. If the petitioner accepted the Article 15, he would

then face an administrative discharge board. If he turned

down the Article 15, he would face a court—martial. In

Bernstein’s opinion, the petitioner had a better chance of

saving his career in a court-martial than in an administrative

discharge board. R. 56. Bernstein based this evaluation in part

upon the differing burdens of proof in boards and courts. In a

board, the burden of proof would be by a preponderance of

the evidence and the members would be looking at the entire

record, including both on—duty performance and off—duty

conduct. Given the two referral EPR’s, Mr. Bernstein was of

the opinion that the petitioner stood a better chance in a

court—martial. He also felt that members are sometimes

reluctant to adjudge a bad conduct discharge in a

court—martial. R. 17. The petitioner did not retain Mr.

Bernstein at this time.

On 14 January 1991, the initial Article 15 was

withdrawn; a second Article 15 was offered. This Article 15

contained four specifications: dereliction of duty for driving

while under a suspended license, driving while intoxicated,

disorderly conduct and failure to obey an order to submit to a

blood alcohol test. R. 48—49.

On 15 January 1991, the petitioner went to the Air Force

Area Defense Counsel, Captain Kenneth Trigg, to seek advice

on this second Article 15. Captain Trigg advised the petitioner

of his rights relating to the Article 15. He explained to the

eet ee ee eS ee eee. Wey Ferm eS

petitioner that he had the option of accepting the Article 15 or

turning it down and demanding a trial by court-martial. The

petitioner was concerned that by accepting the Article 15 he

would be admitting guilt. He wanted to respond to the

suspended license allegation. Captain Trigg informed the

petitioner that accepting the Article 15 was not an admission

of guilt and he could submit a statement to his commander

regarding the offenses. The petitioner made another

appointment to see Capt Trigg the next day, 16 January 1991,

eventually canceling that appointment. See App. Ex. XVIII:

Capt Trigg’s Affidavit dated 12 August 1992. The petitioner

was wary of Capt Trigg, seeing him as a government attorney.

See App. Ex. XX: Petitioner’s Affidavit dated 22 July 1992.

The petitioner went back to see Mr. Bernstein on 16

January 1991. According to the petitioner, Mr. Bernstein

advised him to turn down the Article 15 and demand a trial by

court~martial because the petitioner wou have to admit his

guilt by accepting the Article 15.3 See App. Ex. XIX:

Petitioner’s Affidavit dated 12 Nov 1991. Mr. Bernstein

assured the petitioner that he was an expert on military law.4

Mr. Bernstein testified that it was apparent to him that an

3 Based on his DuBay hearing testimony, it is not clear what advice

Mr. Bernstein gave the petitioner as to the effect of accepting the

Article 15. During his testimony, Mr. Bernstein indicated that he

discussed the meaning of accepting the Article 15 with the

petitioner. According to him, he indicated that if the petitioner

accepted an Article 15, that would not be admitting guilt and that

the Article 15 was nonjudicial. Nevertheless, post-trial submissions

by Mr. Bernstein indicate he believed it would be inappropriate to

accept an Article 15 if one of the specifications were groundless and

equated the Article 15 process to the Care inquiry.

4 When asked at the DuBay hearing whether he represented himself

as an “expert” on military law, Mr. Bernstein simply demurred if

there was such a Status as “expert” in military law since there were

no certification rules for that specialty in California. R. 30.

administrative discharge was a forgone conclusion if the

petitioner accepted the Article 15. R. 49. However, Mr.

Bernstein never tried to verify that a discharge was

contemplated or an inevitable consequence of accepting the

Article 15. R. 15-16; See also, Apn. Ex. XXV and XXVI.

Although Mr. Bernstein denied making any promises to the

petitioner (R. 18), the petitioner stated in his post-trial

affidavits that Mr. Bernstein advised him that he would not

receive a bad conduct discharge at the court-martial despite

the fact that he would be convicted of some of the charges.

App. Ex. XIX: Petitioner’s Affidavit dated 12 Nov 1991.

Based upon Mr. Bernstein’s advice, the petitioner turned

down the Article 15 and demanded trial by court—martial.

On 8 February 1991, charges were referred to

court-martial. Additional charges of failing to obey lawful

orders were referred on 15 February 1991. Trial was

scheduled for 28 February 1991. Petitioner was initially

facing three Charges, violations of Articles 92, 111, and 134,

UCMJ, respectively. (DD Form 458, Charge Sheet, dated 7

Feb 91.) Charge I, violation of Article 92, UCMJ, was

withdrawn by the convening authority before arraignment.

(Original R. 11; DD Form 458, Charge Sheet, dated 7 Feb

91.) Charge II, violation of Article 111, UCMJ, and Charge

III, violation of Article 134, UCMJ, were then renumbered as

Charge I and Charge II respectively. (Original R. 12; DD

Form 458, Charge Sheet, dated 7 Feb 91.)

On 12 February 1991, Mr. Bernstein, Capt Trigg and the

petitioner met to discuss the petitioner's decision to refuse the

Article 15 and the subsequent court-martial. Capt Trigg

continued to recommend acceptance of the Article 15 and

point out the folly of risking a bad conduct discharge at a

court-martial. App. Ex. XVII: Capt Trigg’s Affidavit dated 24

Oct 1991. Mr. Bernstein told Capt Trigg that his

compensation package included representation at an

administrative discharge board after the court—martial because

he told the petitioner it was unlikely that the petitioner would

receive a punitive discharge from the court-martial. App. Ex.

XVII. )

A second meeting occurred on 27 February 1991, the day

before trial, involving the three parties. Capt Trigg informed

the petitioner and Mr. Bernstein that the Article 15 was still

being offered by the convening authority, and that the

petitioner could still accept it and avoid the court—martial. At

this point, Mr. Bernstein interrupted Capt Trigg, instructing

him that his role was limited solely to procedural questions,

and stating that “we’re going with the court-martial,” and

“I’m the expert here. “ See App Ex. XX and XVII. Mr.

Bernstein told the petitioner to turn down the Article 15 and

acknowledged that he would be convicted of at least some of

the charges.

On 28 February and 1 March 1991 a special

court-martial at Travis Air Force Base, California tried

petitioner for charges of violating Articles 111 (DUI), 134

(drunk and disorderly conduct), and 90 (disobeying a lawful

order——two specifications). During the court—martial, Mr.

Bernstein handled the petitioner’s case. Contrary to his pleas,

the court-martial found him guilty of all charges and

specifications, except one specification of disobeying a lawful

order. The court—martial sentenced petitioner to a bad conduct

discharge and reduction to the grade of E-1. On 2 July 1991,

the convening authority approved the findings and sentence as

adjudged.

On his initial appeal to the United States Air Force Court

of Criminal Appeals, the petitioner appealed his conviction on

the basis that the advice of his civilian counsel to turn down

an Article 15 and proceed to trial, constituted ineffective

assistance of counsel, and was motivated solely by counsel’s

desire to generate legal fees. The offenses underlying the

Article 15 were the same as those charged at trial. The Article

15 was offered to the petitioner up until the day of trial. In his

initial appeal, the petitioner asked the court to set aside the

conviction, or in the alternative, for a DuBay hearing to

further expand upon the issue of ineffective assistance of

counsel.

The United States Air Force Court of Criminal Appeals

affirmed the findings and sentence in its decision dated 23

September 1992.

Petitioner appealed the decision of the Air Force Court of

Criminal Appeals to the United States Court of Appeals for

the Armed Forces. In an order dated 9 March 1994, the Court

ordered a DuBay hearing for the purpose of determining the

advice given to the petitioner and the tactical and legal

considerations on which the advice was based.

A DuBay hearing was convened at Travis Air Force

Base, California, on 19 and 26 May 1994. In an affidavit

submitted during the DuBay hearing, the Staff Judge

Advocate at the time of the petitioner’s court-martial,

Lieutenant Colonel (Retired) John S. Hannah, stated he was

not aware of any contemplated discharge action. No promises

were made either way, but he was not recommending a

discharge action. He expressed to Capt Trigg that the Article

15 turn—down was ill—advised, that a conviction would result

and that a bad conduct discharge was likely. In fact, after trial,

he recommended suspension of the bad conduct discharge in

clemency. App. Ex. XXVI.

An affidavit was submitted by Capt Arlen Bee, the

assistant trial counsel. Capt Bee stated Mr. Bernstein never

contacted him regarding the likelihood of an administrative

discharge action should the petitioner accept the Article 15. To

Capt Bee’s knowledge, no one on the government’s side was

pushing an administrative discharge action, but similarly, it

had not been ruled out. As Capt Bee pointed out, the

petitioner would have been eligible for lengthy service

consideration if a discharge action had been initiated. App.

Ex. XXV.

Captain Terry McElyea, the former ADC at Travis AFB,

provided a sworn affidavit at the DuBay hearing. According

to Capt McElyea, Capt Trigg was “beside himself” because

Mr. Bernstein was being so difficult, and was essentially

interfering with Trigg’s attempts to explain to the petitioner

the ramifications of going to trial. Capt McElyea believed he

would have heard if the unit was contemplating an

administrative discharge after the Article 15 action. He heard

no such talk. Also, Capt McElyea believed that Capt Trigg

would have told him if there had been talk of an

administrative discharge. Neither Capt Trigg nor the SJA,

according to Capt McElyea, suggested a discharge was an

issue. App. Ex. XXIV.

In a 28 Dec 1990 letter from Lt Col Robert Harsha, the

petitioner’s commander, to the Staff Judge Advocate entitled

Request for Article 15 Assistance, Lt Col Harsha indicated he

was not contemplating administrative discharge action. In

fact, on the AF Form 65, Transmittal of Court—martial

Charges, dated 7 February 1991, Lt Col Harsha wrote:

TSgt Marshall’s duty performance has been up to

standard’s [sic] expected of his grade. He has

earned the respect of his peers and subordinates

both military and civilian. They freely come to him

for guidance and solutions to problems on the job. It

is anticipated his effectiveness will increase once

current personal problems are resolved.

App. Ex. XXII. Despite the comments on the AF Form

65 and the letter to the SJA, Lt Col Harsha testified at the

DuBay hearing that he intended to initiate discharge action

and communicated this to the petitioner. R. 88. However,

under cross—examinatioa, Lt Col Harsha admitted that if he

had been approached by Mr. Bernstein concerning some type

of alcohol rehabilitation, he would have considered the

request. R. 92.

Having reviewed the case in light of the factfinding

hearing, the Air Force Court of Criminal Appeals again

concluded that the petitioner was not denied the effective

assistance of counsel. The Air Force Court affirmed the

findings anc sentence in its 8 February 1995 decision.

The Court of Appeals for the Armed Forces, by order

dated 17 July 1995, granted review of the issue of whether

petitioner was denied the effective assistance of counsel when

he turned down an Article 15 after his civilian defense counsel

provided incorrect and untenable advice concerning the

outcome of going to trial. The Court held that the petitioner

was not denied the effective assistance of counsel; his civilian

defense attorney presented him with competent legal advice

concerning the options available to him and their

ramifications for his future military career.

In reaching this conclusion the Court of Appeals for the

Armed Forces assumed, without answering the question of

whether Sixth Amendment rights attach to advice given to

proceed to trial rather than accept an Article 15, where made

prior to preferral of charges. But see, Senior Judge Everett’s

concurring opinion. The Court reasoned further that any

misadvice as to acceptance of the Article 15 being an

admission of guilt, was non prejudicial since the dispute really

was whether the Article 15 would lead to an administrative

discharge action. Finally the Court found that any advice as to

the petitioner not receiving a bad conduct discharge at the

court—martial, was not ineffective assistance of counsel,

noting that the attorney denied making the statement at the

DuBay hearing. The Court stated that miscalculation as to the

likely end result does not equal deficient performance. And,

the defense counsel advised the petitioner of the potential for

10

an administrative discharge even if no bad conduct discharge

were awarded at trial.

REASON FOR GRANTING THE WRIT

THE UNITED STATES COURT OF APPEALS FOR

THE ARMED FORCES ERRED BY HOLDING THAT

THE PETITIONER WAS PROVIDED EFFECTIVE

ASSISTANCE COUNSEL BY HIS CIVILIAN DEFENSE

COUNSEL WHO ADVISED PETITIONER TO CHOOSE

TO CONTEST HIS GUILT OF THE CHARGED

OFFENSES IN A COURT-MARTIAL, RATHER THAN

IN THE NON-JUDICIAL SETTING OF AN ARTICLE

15 HEARING.

The Sixth Amendment and the Uniform Code of Military

Justice confer upon a military accused the right to the

effective assistance of counsel. United States v. Scott, 24 M.J.

186 (C.M.A. 1987). The standard for measuring a claim of

ineffective assistance of counsel is set forth by this Court in

Strickland v. Washington, 466 U.S. 668, 687 (1984). In order

for an petitioner to prevail, he must establish the following:

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

defendart 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.

“Judicial scrutiny of counsel’s performance must be

highly deferential. It is all too tempting for a defendant to

second—guess counsel’s assistance after conviction or adverse

11

sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to

conclude that a particular act or omission of counsel was

unreasonable.” Strickland, supra at 689-690.

A. Assessment of civilian counsel’s pretrial

advice to reject the Article 15 is governed by

those cases that have applied ineffective

assistance claims under Strickland v. Washington

to pretrial matters and plea bargaining.

In the case sub judice, the rejection of the offer to contest

petitioner’s guilt at a non—judicial Article 15 hearing in lieu of

trial is no different than those situations involving offers of

pretrial agreements or plea bargaining where the petitioner

relies on counsel’s advice, rejects an offer, is convicted and

receives a less favorable sentence. The Court of Appeals for

the Armed Forces has applied Strickland in this context in a

modified form. See, United States v. Lonetree, 35 M.J. 396

(C.M.A. 1992)(petitioner entitled to DuBay hearing, or

rehearing on sentence, to assess whether allegedly ineffective

assistance of civilian counsel existed with petitioner’s

decision to reject plea negotiations, and if so, whether

ineffective assistance affected petitioner’s sentence); see also,

In re Alvernaz, 2 Cal. 4th 924, 830 P. 2d 747 (Cal.

1992)(stating a defendant is deprived of his federal

constitutional rights to effective assistance of counsel] when

his lawyer gives him substandard advice that induces him to

decide to reject a plea offer; that even a fair trial following

rejection of the offer does not adequately cure the error;

remedy would be resubmission of plea bargain); and, Jones v.

Murray, 947 F.2d 1106, 1110-1111 (4th Cir. 1991)(applied

Strickland to determine if counsel’s failure to persuade client

to accept plea bargain was ineffective assistance. Stating there

are some situations where counsel has an affirmative duty to

persuade acceptance, “ [t]his is the kind of case which should

12

never have been tried. In this kind of case, nothing is gained

for the defendant by going to trial . . . other opportunities may

be lost by such action . . .” [citing United States v. Jones, 392

F.2d 567 (4th Cir. 1968)}).

In summarizing case law to date, the California Supreme

Court in Alvernaz, supra, concluded that,

all federal and state courts presented with the issue

where counsel’s ineffective representation results in

defendant's rejection of an offered plea bargain, and

in defendant’s decision to proceed to trial, give rise

to a claim of ineffective assistance of counsel.

Alvernaz, supra at 933-934, citing in support Lewandowski v.

Makel, 949 F.2d 844 (6th Cir. 1991); United States v.

Rodriguez-Rodriguez, 929 F.2d 747, 752-53, n. 1 (Ast Cir.

1991)(holding that providing inadequate advice as to an

offered plea bargain and the consequences of rejection

warrants a hearing). The Alvernaz court stated that the

remedies for the ineffective assistance claims in these cases

required that relief be “tailored to the injury suffered.”

Alvernaz, supra at 942, citing in support United States v.

Morrison, 449 U.S. 361, 364 (1981). The Alvernaz court

noted that most courts in determining a remedy have vacated

the judgment of conviction and remanded for resumption of

plea bargaining. Alvernaz, supra at 942.

The modified approach applied by all the aforementioned

courts was to evaluate under the dual prongs of Strickland,

whether the pretrial advice rendered by counsel was “deficient

performance” and if it prejudiced the defendant by inducing

him to reject the offered pretrial agreement or plea bargain

that would have led to a more favorable outcome. The

Alvernaz court stated that limiting the Strickland prongs to

apply only to performance and prejudice at trial, and not

pretrial matters, was an

qT

13

overly narrow reading of Strickland’s delineation of

the functions of counsel . . . [and] . . . the position

that a fair trial remedies the ineffective assistance

which led the defendant to reject an offered plea

bargain disregards petitioner’s specific complaint of

constitutional injury.

Alvernaz, supra at 935. As a result, legal error at trial was not

at issue in such claims, and Strickland was applied only to the

pretrial advice and affect on final punishment.

As previously mentioned, this approach was followed by

the Court of Appeals for the Armed Forces in Lonetree, supra.

The rejected plea bargain in Lonetree involved pleading guilty

to court-martial charges (unlike rejecting an Article 15 as in

the case sub judice), the Court held that the convictions would

stand and only the sentence would be affected.

The tailored remedy sought by the petitioner here is

consistent with those courts that have addressed similar

situations, to set aside his conviction.

Despite the growing number of courts that have adopted

the Strickland standard to counsel’s pre-trial advice, both the

Air Force Court of Criminal Appeals and the Court of Appeals

for the Armed Forces, in addressing this issue in the case sub

judice, merely “assumed” that the Strickland standard applied

to Mr. Bernstein’s pre-trial advice to the petitioner. United

States v. Marshall, pp. 3, ACM S29406 (f rev), unpub. (A.F.

Ct. Crim. App. 1995); United States v. Marshall, __ MJ—,

slip op. 9 (1996). The petitioner suggests that a more

definitive answer is required of an appellate court on this

important issue.

B. Under Strickland, the pretrial advice of

civilian counsel to turn down the Article 15 was

deficient performance and under the

14

circumstances prejudiced petitioner by inducing

him to reject an offered Article 15 in lieu of trial

that would have led to a more favorable

punishment.

Contrary to the decision of the Court of Appeals for the

Armed Forces, applying the modified Strickland standard to

the case sub judice, Mr. Bernstein’s representation was

deficient, and his deficiency subjected the petitioner to a

punishment far more devastating than he would have received

from an Article 15. Under the circumstances, civilian defense

counsel’s advice and conduct regarding the Article 15 were

shocking and unconscionable particularly in view of the

petitioner’s 17 and one-half years of service.

The facts set forth above speak for themselves. First, Mr.

Bernstein gave the petitioner flat out wrong advice, that is,

that contesting his guilt at an Article 15 hearing would be an

admission of guilt. Mr. Bernstein’s testified at the DuBay

hearing that he did not counsel the petitioner that acceptance

of the Article 15 equated to an admission of guilt. However,

his post-trial submission in response to the SJA’s trial

recommendations contradict his testimony. Addressing what

he considered to be vindictive prosecution for rejecting the

Article 15, Mr. Bernstein was explaining to the convening

authority why the petitioner couldn’t accept the Article 15

when offered. Mr. Bernstein stated:

Under the Military Justice System, an petitioner is

not supposed to plead guilty to something he is not

guilty of as illustrated by the Care inquiry required

before accepting a guilty plea in a Court Martial.

Although this rule does not explicitly apply to

Article 15’s [sic], its spirit does. In California state

courts, a contrary rule applies as announced by the

California Supreme Court in People v. West. A

15

defendant may plead guilty to a charge even though

he is not guilty of the specific charge in order to

avoid more serious charges of which he may in fact

be guilty.

Thus, given the sequence of charging in the case at

hand, the defendant would have been well advised

to accept the first Article 15 if it were legally proper

under tiie military system. However, since it wasn't

proper for him to admit guilt under the military

system to the suspended license charge, he didn.

Response to SJA’s Post Trial Recommendation, p. 3, ROT

Volume I (emphasis added). This passage demonstrated Mr.

Bernstein’s gross misunderstanding of the Article 15 process.

Yet, he contended that he was the expert on military law.

Secondly, working to further prejudice and induce the

petitioner to accept his advice, Mr. Bernstein told the

petitioner that he would not receive a bad conduct discharge

from the court-martial members.°

Third, Mr. Bernstein interfered with Capt Trigg’s

attempts to dissuade the petitioner from going to trial.

Bernstein essentially “gagged” Capt Trigg at the 27 Feb 1991

> As previously mentioned, when asked if he represented himself as

an “expert” on military law, Mr. Bernstein simply demurred if there

was such a status as “expert” in military law since there were no

certification rules for that specialty in California. R. 30

6 Again, although Mr. Bernstein testified that he made no such

promise to the petitioner (R. 17), both the petitioner’s affidavit

(App. Ex. XIX) and Capt Trigg’s affidavit (App. Ex. XVII) state

that Mr. Bernstein informed the petitioner that he would not receive

a bad conduct discharge.

7 See App. Ex. XX: Petitioner’s affidavit; App. Exs. XVII and

XVIII: Capt Trigg’s affidavits; and App. Ex. XXIV: Capt

McElyea’s affidavit.

ae TE

16

meeting of the parties when he informed Capt Trigg that his

role was limited to procedural questions and telling Capt

Trigg “[w]e’re going with the court-martial.”

Finally, putting aside the blatantly wrong advice

concerning the acceptance of the Article 15 and the

misleading advice about the probable sentence from the

court-martial, Mr. Bernstein’s “tactical” decision to proceed

to a court—martial in lieu of in Article 15 and a possible

administrative discharge board? was unreasonable even under

the highly deferential light shone on counsel’s assistance

under Strickland. See also, United States v. Morgan, 37 M.J.

407 (C.M.A. 1993)(tactical decisions by counsel are not

second guessed, unless made unreasonably).

Mr. Bernstein testified that the advantages of a

court-martial over an administrative discharge were 1) “the

lesser burden of proof” at an administrative discharge (R. 16,

17); 2) board members look at the entire record, including

both on-duty and off-duty conduct. Given his two referral

EPRs, “I think the odds would have been extremely and

highly against him in a discharge board more so than in a

court—martial” (R. 17); and 3) “sometimes court—martial

members [were] a little more reluctant to adjudge a BCD.”

(R. 17). Contrast Mr. Bernstein’s “tactical” reasons for

proceeding to court-martial with his testimony under

cross—examination:

8 See App. Ex. XX: Petitioner’s affidavit.

9 Neither the command nor the legal office was pushing for an

administrative discharge action to follow the Article 15. Although

Lt Col Harsha testified that he was contemplating discharge, his

own written documentation created at the time of the offenses

suggested otherwise. In addition, Lt Col Harsha admitted that an

administrative discharge was not a forgone conclusion.

eX“

17

Q: Given your statement in the letter, looking back

on things, prior to going to court weren’t you just a

bit concerned knowing that you and your client

would be walking into the sentencing portion of a

court—martial with two 1 EPRs?

A: Oh yeah. I mean he was choosing between two

bad alternatives. That’s why he originally came to

see me was because of those bad EPRs. Those EPRs

he was stuck with whether it was in a discharge

board or a court—martial.

Q: And your advice, not withstanding the EPRs,

was that you had a “good shot”—~—shall we say——at

minimizing the severity of the sentence at a special

court-martial?

A: No. His purpose of hiring a private attorney was

that he had a seventeen and a half year career and

was facing two very difficult alternatives, both of

which had a very high probability of terminating his

career after seventeen and a half years.

Q: Mr. Bernstein—

A: How do I try to”-—you know——“What’s the best

way to prevent that?” It is not a good way; it is just

the least of the two bad alternatives.

Q: Wasn't the end result of your advice though was

that you would, in fact, be subjecting him to both

alternatives by doing it in the order in which you

did it?

A: Well, possibly. Although if he didn’t get a bad

conduct discharge at the court-martial then his

chance that either an administrative discharge

wouldn't be initiated or if it was, his chances of

surviving that were probably better if he just had

the Article 15.

18

R. 35—36 (emphasis added).

First Mr. Bernstein outlined his tactical reasons for going

to trial as opposed to an administrative discharge, but then he

admitted he knew the petitioner could still face an

administrative discharge if the court members didn’t impose a

bad conduct discharge. Mr. Bernstein then surmised that the

petitioner would fare better at an administrative discharge

hearing based on the same offenses upon which he was

convicted at a trial than he would if the discharge hearing was

based on the imposition of the Article 15. Mr. Bernstein based

this opinion on his past experience with a client who goi a

very light sentence at a species court—martial that was not later

administratively discharged. !° In light of his knowledge that

his client would face an administrative hearing following a

felony conviction, Mr. Bernstein’s “tactical” reasons for

proceeding to court in lieu of accepting an Article 15 were not

only unreasonable, they were untenable.

In finding that counsel’s performance, herein, did not fall

below that expected of fallible attorneys, the Court of Appeals

for the Armed Forces disregards the erroneous advice as to the

nature of an Article 15 by determining that this was irrelevant

to the petitioner’s decision to go to trial. As to the advice that

10 Mr. Bernstein’s opinion on the likelihood that the petitioner

would not be administratively discharged or would fare well in an

administrative discharge proceeding was particularly unwarranted

considering that 1) Mr. Bernstein admitted that his prior client (who

had not been discharged after being tried at a special court—martial)

had a good performance record unlike the petitioner (R. 19); 2) Mr.

Bernstein believed that even if the petitioner had accepted the

Article 15 with all but one of the offenses being withdrawn by the

commander, the petitioner’s EPRs and UIF still made an

administrative discharge a foregone conclusion (R. 45-46); and 3)

Mr. Bernstein contended that it was the petitioner’s two referral

EPRs that caused the imposition of the BCD at the court—martial.

(R. 34)

19

the petitioner wouldn’t receive a punitive discharge if he went

to trial, the Court of Appeals overlooked the vast majority of

evidence, including the statement of co—counsel supporting

that petitioner was so advised by the civilian defense counsel.

The Court of Appeals finds that this was merely an inaccurate

prediction as the end result and as such does not rise to the

level of deficient performance.

Finally, the Court of Appeals for the Armed Forces

determined, largely based on the clemency package, that

counsel’s overall performance was effective. However, the

clemency package did not negate Mr. Bernstein’s deficient

pretrial advice. The Air Force Court noted that the Staff Judge

Advocate recommended the suspension of the bad conduct

discharge. Lieutenant Colonel Hannah, the Staff Judge

Advocate, recommended clemency because of the recognition

that petitioner’s problems were alcohol related. Lieutenant

Colonel Hannah was impressed by the petitioner’s efforts to

obtain help with his alcohol problem. App. Ex. XXVI.

Lieutenant Colonel Hannah’s recommendation had nothing to

do with Mr. Bernstein’s “persuasive” clemency submissions.

Even Lt Col Hannah felt that the petitioner should have

accepted the Article 15. A close reading of Lt Col Hannah’s

affidavit shows his disbelief that the petitioner’s case even

went to court.

The Court of Appeals for the Armed Forces, in ignoring

the misadvice that an Article 15 was an admission of guilt,

and in reasoning that counsel’s statement to petitioner——that

he wouldn’t receive a punitive discharge at court-—

martiai-—was merely a miscalculation as to the end result and

so not deficient performance, misses the mark. While an

attorney is free to offer a prediction as to the possible

sentence, it can be constitutionally ineffective to recklessly

promise a client that a specific sentence will result. See,

Wellnitz v. Page, 420 F.2d 935 (10th Cir. 1970); and Brown v.

EC te

PP Sa ee ee ee ee ee ee Se Se ee ee Ne tee

20

Beto, 377 F.2d 950 (Sth Cir. 1967). Moreover, to hold out as a

certainty that a specific sentence will or will not result,

without having performed a cursory investigation into the

nature of the prosecutions case or the law in the area, is

unreasonable. See, Kimmelman v. Morrison, 477 U.S. 365

(1986). That is what counsel did in this case, by failing to

look into the military law adequately to grasp even the most

basic principle of military justice, that is, that accepting an

Article 15 is not an admission of guilt. Further, he failed to

take steps to ascertain the reality of whether or not an

administrative discharge likely would have followed the

imposition of an Article 15.

Certainly, the petitioner has proven Mr. Bernstein’s

“deficient performance” under the Strickland standard. The

petitioner has also demonstrated the required prejudice just as

clearly. The petitioner would have accepted the Article 15 if

not for the substandard advice of Mr. Bernstein. Even if the

Article 15 proceedings resulted in punishment for the

petitioner, the punishment would have been significantly more

favorable than a felony conviction and a bad conduct

discharge.

CONCLUSION

The Court of Appeals for the Armed Forces erred in

upholding the petitioner’s conviction which was obtained in

violation of his Sixth Amendment right to the Assistance of

Counsel. The Court of Appeals erred in assuming, rather than

ruling, that the Sixth Amendment counsel requirements apply

to pretrial advice, in light of the growing number of federal

and state court’s so recognizing. Further, the Court of Appeals

erred in finding that defense counsel’s performance was not

deficient where counsel failed to take the steps a reasonable

lawyer would have to make himself knowledgeable in the

applicable military law and to investigate the potential

21

consequences of the various options before representing to

petitioner that a bad conduct discharge would not result from

court—martial. Clearly, the case sub judice is distinguishable

from the typical case of demanding an Article 15 in lieu of

trial based on a misjudgment of the strength of the

government’s case.!! The ineffective assistance of Mr.

Bernstein, evidenced by his gross misunderstanding of the

Article 15 process; his assurances against the imposition of a

bad conduct discharge; and his wholly untenable tactical

reasons for proceeding to court, prejudiced the petitioner.

The petitioner would not have demanded a court—martial in

lieu of accepting the Article 15 but for Mr. Bernstein’s

erroneous advice.

MARGE A. OVERLY, Capt, USAF

Captain, United States Air Force

Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Ave, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

11 Mr. Bernstein admitted he knew that the petitioner would be

convicted of some of the charges. R. 36.

la

APPENDIX A

UNITED STATES, Appellee

v.

Larry E. MARSHALL, Technical Sergeant

U.S. Air Force, Appellant

No. 93-0375

Crim. App. No. $29406

United States Court of Appeals for the Armed Forces

Argued February 27, 1996

Decided Sep. 30, 1996.

Counsel

For Appellant: Captain Richard D. Desmond (argued);

Colonel Jay L. Cohen (on brief).

For Appellee: Major Jane M.E. Peterson (argued); Colonel

Jeffery T. Infelise (on brief).

Military Judge: William C. Thompson, Jr.

Opinion of the Court”

SULLIVAN, Judge:

On February 28 and March 1, 1991, appellant was tried

by a special court-martial composed of officer and enlisted

members at Travis Air Force Base, California. Contrary to his

pleas, he was found guilty of disobeying a lawful order to

provide a specimen for a blood alcohol test, driving under the

2a

influence of alcohol and being drunk and disorderly in

violation of Articles 90, 111, and 134, Uniform Code of

Military Justice, 10 USC §§ 890, 911, and 934, respectively.

He was sentenced to a bad—conduct discharge and reduction

to pay grade E~1. On July 2, 1991, the convening authority

approved the sentence as adjudged.

Appellant appealed his conviction to the Court of

Military Review (now the Court of Criminal Appeals). He

asserted that his civilian defense counsel was ineffective. On

September 23, 1992, the appellate court below rejected this

assertion and affirmed the findings and sentence in an

unpublished opinion.

Appellant then sought review in this Court on the basis

that he was denied effective assistance of counsel. In an Order

dated March 9, 1994, this Court set aside the decision of the

then Court of Military Review and ordered a factfinding

hearing pursuant to United States v. DuBay, 17 USCMA 147,

37 CMR 411 (1967), “solely for the purpose of determining

the advice given as to the matter raised” in appellant’s

affidavits and “the tactical and legal considerations on which

the advice was based.”

The DuBay hearing was held at Travis Air Force Base,

California, on May 19 and 26, 1994. After further review in

light of the DuBay hearing and the findings of fact, the now

Court of Criminal Appeals reaffirmed its earlier decision that

appellant was not denied effective assistance of counsel in an

unpublished opinion dated February 8, 1995.

On July 17, 1995, this Court granted review of the

following issue raised by appellate defense counsel:

WHETHER APPELLANT WAS DENIED

EFFECTIVE ASSISTANCE OF COUNSEL

WHEN HE TURNED DOWN AN ARTICLE 15

AFTER HIS CIVILIAN DEFENSE COUNSEL

3a

PROVIDED INCORRECT AND UNTENABLE

ADVICE CONCERNING THE OUTCOME OF

GOING TO TRIAL.

We hold that appellant was not denied effective assistance of

counsel; his civilian defense attorney presented him with

competent legal advice concerning the options available to

him and their ramifications for his future military career.

United States v. Cordes, 33 MJ 462 (CMA 1991); United

States v. King, 30 MJ 59, 69-70 (CMA 1990); see generally

Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668

(1978) (holding that criminal defendant must make “difficult

choices”). See also United States v. Boone, 42 MJ 308, 312

(1995)(holding effective assistance of counsel is measured by

combined efforts of entire defense team).

Prior to December 1990, while in Korea, appellant

received two unsatisfactory Evaluation Performance Reports

(EPRs), an Unfavorable Information File entry (UIF), and a

control roster action. He met with a civilian attorney, Mr. Paul

Bernstein, on December 18, 1990, to discuss removal of these

negative actions from his personnel records so as to salvage

his military career. On December 22, 1990, before Mr.

Bernstein was officially retained, appellant was apprehended

at the main gate of Travis Air Force Base for driving while

intoxicated. On January 3, 1991, appellant was offered

punishment under Article 15, UCMJ, 10 USC § 815, for

willfully driving with a suspended license, and drunk and

disorderly conduct. Captain Trigg was made available to

counsel appellant on the Article 15. On January 7, 1990,

appellant then returned to Mr. Bernstein for legal advice

concerning the notice of Article 15 that had been served on

him. Mr. Bernstein was officially retained sometime in mid-

January 1991.

Capt. Trigg and Mr. Bernstein both told appellant that the

Article 15 was an administrative punishment and that he

4a

could accept it or turn it down and demand trial by

court-martial. However, appellant then received conflicting

advice from his attorneys, which is fully detailed in the record

of the DuBay Hearing. Capt. Trigg advised appellant to accept

the Article 15, but Mr. Bernstein recommended that appellant

demand trial by court-martial. Mr. Bernstein’s

recommendation, and appellants acceptance of it, is the basis

for appellant’s claim of ineffective assistance of counsel.

The Sixth Amendment and Article 27, UCMJ, 10 USC

§ 827, confer upon a military accused the right to effective

assistance of counsel. United States v. Scott, 24 MJ 186,

187-89 (CMA 1987). The Supreme Court in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), enunciated

a test to evaluate claims of ineffective assistance of counsel.

This two-pronged test requires the defendant to demonstrate

that his counsel’s performance was deficient and that the

deficient performance prejudiced his defense. /d. at 687, 104

S.Ct. at 2064. Cf. United States v. Polk, 32 MJ 150, 153

(CMA 1991) (construing Strickland, supra). In sum, in order

to constitute ineffective assistance, counsel’s errors must be so

serious as to deprive the defendant of a fair trial, “a trial

whose result is reliable.” Strickland, supra at 687, 104 S.Ct. at

2064; accord United States v. Sanders, 37 MJ 116, 118 (CMA

1993).

An appellate court’s evaluation of attorney performance

is made from counsel’s perspective at the time of the conduct

in question. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

- The competence of counsel is presumed. /d.; United States v.

Scott, supra at 188; Art. 27. “[S]trategic choices made after

thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.” Strickland, supra at

690, 104 S.Ct. at 2066. Thus, judicial scrutiny of counsel’s

performance is highly deferential. Jd. at 691, 104 S.Ct. at

2066. However, even this restricted scrutiny of counsel’s

Sa

performance is not required if a person has no right to counsel

at the time the averred ineffective assistance occurred. See

Evitts v. Lucey, 469 U.S. 387, 396 n.7 (1985), citing Ross v.

Moffitt, 417 U.S. 600, 94 S.Ct. 2347 (1974).

Turning to appellant’s claim, we note initially that Article

15 does not expressly require that a lawyer be made available

to a servicememnber before deciding to elect nonjudicial

punishment or demand trial by court-martial. Neither does

Part V, Manual for Courts—Martial, United States, 1984,

expressly require counsel. Nevertheless, under Air Force

Regulations, a member of the Air Force has a right to a

military lawyer to explain his or her rights under Article 15

and “help [him or her] decide what to do.” AF Form 3070

(June 1985); see United States v. Mack, 9 MJ 300, 320-21

(CMA 1980). In this context, an important preliminary

question exists whether the Strickland and Scott decisions on

effective assistance of counsel are applicable in this case. See

Evitts v. Lucey, supra.

In this regard we note that the decision to impose

nonjudicial punishment, to notify a servicemember of this

intended action and afford him or her the right to demand trial

by court-martial requires formulation of criminal charges

under the Uniform Code of Military Justice. 1 4a(2), Part V,

Manual, supra; 9 59c, AFR 111-9 (6 July 1990). However,

they do not require the swearing of charges as required for

courts—martial preferral. RCM 307(b), Manual, supra; see

United States v. Wattenbarger, 21 MJ 41, 43 (CMA 1985). In

appellant’s case preferral of charges occurred after appellant

decided to forgo nonjudicial punishment and demanded trial

by court-martial. Since adversary proceedings had not been

initiated against him at the time of the averred ineffectiveness

of his counsel, no Sixth Amendment claim would normally

lie. See United States v. Kendig, 36 MJ 291, 296 (CMA 1993);

United States v. Wattenbarger, supra.

, I sa x aed Sas, Op 0

es) SRR atk A in halal + SEG pian 6 - ee ba

6a

Nevertheless, appellant asserts that in his case this offer

to accept nonjudicial punishment in lieu of trial by

court—martial remained open until the first day of trial. He

argues, therefore, that since his decision to forgo nonjudicial

punishment upon advice of counsel continued after preferral

of charges, it came within the scope of the Sixth Amendment.

Some support exists for such a legal argument. See United

States v. Lonetree, 35 MJ 396 (CMA 1992); see also United

States v. Mack, supra at 320. Moreover, we presume the

opportunity to consult with counsel provided in service

regulations was intended to be meaningful in its own right. In

any event, we can decide appellant’s case by simply assuming

the Sixth Amendment and its standard for effective assistance

of counsel apply. See also United States v. Kelly, No.

95-0625, __ MJ — (Sept. 30, 1996) (holding right to counsel

to make decision to accept nonjudicial punishment implicit in

various military statutes).

- Appellant basically contends that civilian counsel “gave

appellant flat out wrong advice.” Final Brief at 13. He first

challenges as erroneous advice purportedly given to appellant

“that accepting Article 15 would be an admission of guilt.” He

also challenges his counsel’s averred representation “that he

would not receive a bad conduct discharge from the

court—martial members.” In addition, he notes that civilian

defense counsel interferred with military defense counsel’s

attempt to dissuade appellant from going to trial. Finally, he

challenges appellant’s “untenable tactical reasons for

proceeding to court.”

At the outset, we note that Article 15 permits a

commanding officer to impose nonjudicial punishment upon

servicemembers under his command. Proceedings under this

Article do not constitute criminal prosecutions. See United

States v. Kendig, supra at 295. Moreover, punishments under

this codal provision are generally less severe than can be

7a

awarded by court—martial. See para. 5, Part V, Manual, supra.

An Article 15 punishment, however, can serve as a basis for

administrative separation. An acquittal at court—martial

cannot. Moreover, an Article 15 proceeding is not a bar to a

later prosecution at courts—martial for a serious offense. See

United States v. Pierce, 27 MJ 367 (CMA 19839); Art. 15(f).

As noted above, we must view appellant’s claims from

counsel’s perspective at the time the challenged advice was

given. Strickland, supra at 690, 104 S.Ct. at 2066. Appellant’s

purpose in consulting Mr. Bernstein is particularly relevant in

this regard. It was undisputed that appellant’s main goal was

to save his jeopardized career. In light of the offenses of

which appellant was accused, he only had two options: accept

an Article 15 proceeding and hope no discharge proceedings

would be initiated, or demand trial by court-martial and hope

he would secure an acquittal.

Appellant’s initial complaint against civilian counsel

concerns advice that accepting an Article 15 would be an

admission of guilt. At the DuBay hearing, civilian defense

counsel denied giving such advice to appellant, and the

military judge made no finding of fact to the contrary. The

DuBay record states:

Q: Sir, did you advise Sergeant Marshall that if he

were to accept the 15 that even if he weren’t guilty

of all of the specifications, that by accepting the 15

itself that he would be admitting to guilt to

everything contained therein?

A: No. What I am sure I advised him of was that he

would be punished under Article 15 because at least

some of what he was charged with he would be

found—-—I don’t know if “guilty” is a proper

word——but he would be punished. Once he had an

Article 15, that would be part of the administrative

a

PRBS 2 Ti ee RIS Ak, ue. |

teh eine BTR SF

We a RR

Bg pl? Adee @

8a

discharge package. So, the specific specifications

weren’t really critical to his overall strategy. His

overall strategy was to try and save his career and

not get discharged. You would want to get technical

about the specifications if somehow you can cause a

whole Article 15 to be thrown out, but that wasn’t

likely.

Moreover, the importance of such advice in this case is

not readily apparent. The relevant dispute between counsel

was whether the expected Article 15 punishment would lead

to appellant’s processing for an administrative discharge. The

precise legal characterization of nonjudicial punishment had

no bearing on that question. While defense counsels differed

on the probable course of action by command, neither

disputed that such administrative discharge action was legally

possible on the basis of nonjudicial punishment. Accordingly,

the complained of legal advice even if defective was not

prejudicial to appellant.

Appellant next complains that civilian defense counsel

incorrectly advised him that “he would not receive a bad

conduct discharge from court-martial members.” Civilian

defense counsel again denied that he gave such advice to

appellant, and the military judge made no finding to the

contrary. The DuBay record states:

Q: Okay. What advantages did you see in going to a

Court? You mentioned the burden of proof as one.

A: Burden of proof. Sometimes court—martial

members are a little more reluctant to adjudge a

BCD. I’ve participated in and defended quite a few

court—martials which resulted in non BCDs where

the punishment was roughly the equivalent to that

of an Article 15 punishment. So——

Q: Did you tell Sergeant Marshall that he would not

get a conviction if he went to a court—martial?

9a

A: No. You don’t--—I mean what you do is you try

and pick the least bad of what your alternatives are.

Q: Did you tell him that he certainly wouldn’t get a

BCD if he went to a court—martial?

A: No. In any type of legal matter you can never

guarantee any particular outcome. In this situation,

you are just choosing between bad alternatives. |

mean you are not choosing a situation which is

good; you are just trying to choose between the

least bad of the alternatives.

Q: Were there any other kind of promises made by

you to Sergeant Marshall concerning the outcome

of the court?

A: Promises, no.

Q: Whose decision was it to actually go to the

court-martial?

A: Well, it was the client’s decision. It is the client’s

decision to contact me and to hire me. Basically his

whole objective was that he saw his career ending

unless he took some sort of action; it was all or

nothing in his situation. | guess he really viewed his

seventeen year career as trying to save it.

(Emphasis added.)

Moreover, even if civilian counsel miscalculated the

likely end result of appellant’s court-martial, an erroneous

sentence estimation by defense counsel is not necessarily

deficient performance rising to the level of ineffective

assistance of counsel. See United States v. Gordon, 4 F.3d

1567, 1570 (10th Cir. 1993); Doganiere v. United States, 914

F.2d 165, 168 (9th Cir. 1990); United States v. Arvanitis, 902

F.2d 489, 494 (7th Cir. 1990); Wellnitz v. Page, 420 F.2d 935,

936 (10th Cir. 1970). Cf United States v. Straight, 42 MJ 244

(1995) (holding defense counsel advice concerning the

PO ee ee. ae, eS

10a

increase of sentence on reconsideration was erroneous, but

not prejudicial). Moreover, here civilian counsel advised

appellant that even if he did not receive a BCD, there still

might be an administrative discharge board following the

court-martial. Accordingly, Mr. Bernstein’s advice concerning

possible results of court-martial did not constitute ineffective

assistance of counsel. See generally United States v. Bedania,

12 MJ 373 (CMA 1982).

Finally, the basis for civilian counsel’s advice to reject

nonjudicial punishment and demand trial by court-martial are

evident in the findings of fact at the DuBay hearing. Those

findings show that at the time of trial, appcllant had

completed 17 years of active service in the Air Force, 3 years

short of retirement, and desired retention. As noted by the

Court of Criminal Appeals, both appellant and his civilian

counsel believed that appellant could face an administrative

discharge if he accepted nonjudicial punishment. Unpub. op.

at 2. Moreover, testimony given at the DuBay hearing by

appellant’s squadron commander, Lieutenant Colonel Harsha,

confirmed that an administrative discharge proceeding would

have been initiated had appellant pursued the Article 15 route.

Thus, a not—guilty finding at a court—martial constituted the

only real hope appellant had to save his career.

We also note that an evaluation of the entire record now

before us suggests that civilian defense counsel did provide

effective legal assistance to appellant. The adjudged sentence

in this case was a bad—conduct discharge and reduction to the

grade of E-1. However, civilian defense counsel then

submitted a clemency submission pursuant to RCM 1105,

emphasizing that appellant had voluntarily enrolled in and

completed an inpatient alcohol program following his trial. In

addition, he established that the program director confirmed

that appellant had a positive attitude about his rehabilitation.

Finally, civilian counsel’s clemency package led to a

lla

recommendation by the staff judge advocate that the

convening authority approve only a reduction to grade E-5

and suspend the bad—conduct discharge for a period of one

year. See Addendum to Staff Judge Advocate’s

Recommendation, May 7, 1991. Before the clemency decision

was made, however, appellant committed more acts of

misconduct that resulted in preparation of a new staff judge

advocate recommendation and approval of the bad—conduct

discharge adjudged by the court—martial.

In sum, appellant received conflicting advice from his

civilian attorney and military defense counsel, and obvious

tension existed between them. Nevertheless, viewed in its

entirety, appellant was presented with legal advice concerning

his available options and the practical ramifications of either

option that he might choose. See United States v. Boone,

supra. Thus, we conclude that in advising appellant, counsels’

performance did not fall “measurably below the performance

* ... [ordinarily expected] of fallible lawyers.” See Polk, 32 MJ

at 153. Of course, in hindsight, it is clear that appellant’s

decision to reject nonjudicial punishment did not save his Air

Force career. This Court, however, will not engage ir

second—guessing counsel’s strategic or tactical decisions

reasonably designed to avoid that result. See United States v.

Rivas, 3 MJ 282 (CMA 1977).

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Chief Judge COX and Judge CRAWFORD concur.

EVERETT, Senior Judge (concurring):

In my view, if an accused receives and relies on grossly

erroneous and incompetent advice from counsel that leads

him to request-—and be provided—-trial by court-martial,

rather than nonjudicial punishment under Article 15, Uniform

Code of Military Justice, 10 USC § 815, he would have a

l2a

Sixth Amendment claim requiring application of the

Strickland v. Washington, 466 U.S. 668 (1984), two—pronged

test.

Here, however, the advice provided by civilian counsel

was competent and had as much rational basis as the advice

presented by the military counsel. Thus, the Sixth Amendment

claim proves to be without merit.

GIERKE, Judge (concurring in part and in the result):

I agree that appellant was not denied effective assistance

of counsel. I decline to join in any suggestion that there is a

Statutory right to counsel in nonjudicia!l punishment

proceedings. See United States v. Kelly, No. 95-0625, __ MJ —

(Sept. 30, 1996) (Gierke, J., concurring in part and in the

result).

13a

APPENDIX B

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

Vv.

Technical Sergeant LARRY E. MARSHALL,

FR435-82-5206

United States Air Force

ACM 829406 (f rev)

8 February 1995

Sentence adjudged 1 March 1991 by SPCM convened at

Travis Air Force Base, California. Military Judge: William C.

Thompson, Jr.

Approved sentence: Bad—conduct discharge and reduction to

E-1.

Appellate Counsel for Appellant: Captain Richard D.

Desmond (argued) and Colonel Jay L. Cohen.

Appellate Counsel for the United States: Captain Jane M.E.

Peterson (argued) and Jeffery T. Infelise.

l4a

Before

DIXON, YOUNG, and BECKER

Appellate Military Judges

OPINION OF THE COURT

UPON FURTHER REVIEW

DIXON, Chief Judge:

Appellant’s case is before this Court for a second review.

Again, the sole issue is whether appellant was denied effective

assistance of counsel regarding his decision to refuse

nonjudicial punishment pursuant to Article 15, UCMJ.

Pursuant to our first review, we affirmed appellant’s conviction

in an unpublished opinion dated 23 September 1992, finding

that he had not been deprived of effective assistance of

counsel. That decision was set aside on 9 March 1994 by order

of the United States Court of Military Appeals (now the United

States Court of Appeals for the Armed Forces).

The order by the United States Court of Military Appeals

mandated a factfinding hearing for the purpose of determining

the advice given appellant by his counsel and the tactical and

legal considerations on which the advice was based. The order

specified that Articles 66 and 67, Uniform Code of Military

Justice, would apply following that proceeding. Having now

reviewed this case in the light of the factfinding hearing held

on 19 and 26 May 1994, we again conclude appellant’s claim

he was denied effective assistance of counsel lacks merit. We

affirm the findings of guilty and the sentence. Article 66(c),

UCM]. )

There are no issues in this case concerning the way

appellant’s court-martial was conducted. Contrary to his pleas

at trial, appellant was convicted of drunk driving, being drunk

and disorderly, and of disobeying a lawful order to provide a

blood test. Members at a special court—martial sentenced him

to a bad—conduct discharge and reduction to the grade of E-1.

1Sa

The convening authority approved the sentence as adjudged.

We are satisfied based upon the facts developed at the

factfinding hearing that appellant’s civilian counsel fully

advised appellant of the consequences of the decision to

refuse nonjudicial punishment. It is clear the decision to

refuse nonjudicial punishment was the option appellant

consistently wished to pursue and not one precipitated by

deficient advice. United States v. Lonetree, 35 M.J. 396

(C.M.A. 1992). Appellant’s contention that he turned down

nonjudicial punishment only because of the advice he

received from his civilian counsel simply is not supported by

the facts.

The circumstances leading up to appellant’s decision to

reject nonjudicial punishment are set forth in the findings of

fact from the mandated hearing. At the time of trial, appellant

had completed 17 years of active service in the Air Force. His

purpose in seeking the assistance of a civilian attorney was to

find a way to save his career. Both the appellant and his

civilian counsel shared the understanding appellant would

face administrative discharge if he accepted nonjudicial

punishment. Testimony given at the factfinding hearing by

appellant’s squadron commander, Lieutenant Colonel Harsha,

confirmed that an administrative discharge proceeding would

have been initiated had nonjudicial punishment been

accepted.

Appellant clearly understood that his career was in

serious jeopardy and that neither of the legal options he faced

offered him much hope of saving his career. By accepting

nonjudicial punishment, he could avoid a court-martial

conviction, but the likelihood of administrative discharge was

great. His civilian counsel informed him that he would be

convicted if tried by court-martial but concluded he would

have a better chance of saving his career through a

court—martial. Consequently, his civilian counsel suggested

loa

rejecting nonjudicial punishment and undergoing a

court-martial was the lesser of two evils.

Appellant’s civilian counsel made no promises

concerning the outcome of a court-martial. He explained the

fee for his representation would be the same for a

court—martial as it would for an administrative discharge

proceedings. From the outset, appellant was advised by his

military defense counsel to accept nonjudicial punishment.

We are satisfied appellant was fully apprised of the

consequences of rejecting nonjudicial punishment and

personally chose to take the risks inherent in his decision.

This appellant was seemingly in a “no—win” situation.

With the benefit of hindsight, it could be argued that

appellant’s decision to reject nonjudicial punishment was

ill-advised. However, as we observed during our initial

review, a worse than expected result at a court-martial does

not necessarily equate to ineffective assistance of counsel.

Appellate courts in assessing counsel’s effectiveness have

refused to second—guess strategic or tactical decisions. United

States v. Rivas, 3 M.J. 282 (C.M.A. 1977); United States v.

Coronado, 15 M.J. 750 (A.F.C.M.R. 1983). The standard for

reviewing ineffective assistance claims based upon a

counsel’s performance at trial is well established. The

appellant must first show that counsel’s performance was

deficient and must then establish that the deficient

performance prejudiced the defense so as to deprive the

accused of a fair trial. Strickland v. Washington, 466 U.S. 668

(1984). In this instance, the claim of ineffective assistance of

counsel is directed at counsel’s pre-trial performance. For the

purpose of this review, we will assume the Strickland standard

applies to counsel’s pre-trial advice. Using that standard, we

conclude this appellant has failed to meet either prong of the

Strickland test.

Looking at the entire record, this Court can not say the

17a

advice provided by civilian counsel was flawed. The stated

objective was to salvage appellant’s career. Furthermore, the

strategy employed by appellant’s civilian counsel nearly

succeeded. Although the adjudged sentence was a

bad—conduct discharge and reduction to the grade of E-1, the

clemency submission prepared by his civilian counsel

highlighted the fact that appellant had voluntarily enrolled in

and completed an inpatient alcohol program following his

trial. A statement from the program director confirmed

appellant’s attitude about rehabilitation had been positive. In

light of the persuasive clemency package, the Addendum to

the Staff Judge Advocate’s Recommendation prepared on 7

May 1991 advised the convening authority to approve only a

reduction to the grade of E~S and suspend the bad—conduct

discharge for a period of one year. This recommendation, if

followed, would have succeeded in salvaging appellant’s

career. However, subsequent misconduct on the part of

appellant resulted in the preparation of a new staff judge

advocate recommendation and the new advice led to the

eventual approval of the adjudged sentence.

This Court finds no merit in appellant’s claim he was

denied effective assistance of counsel. His affidavit

purporting to shift the blame for his current plight to his

civilian counsel not only lacks factual support, but unfairly

condemns his civilian counsel for supporting appellant’s

stated objective. We are convinced appellant made his

decision regarding nonjudicial punishment as a matter of

personal choice rather than being persuaded to do so by any

bad advice from his civilian attorney. As this Court has

previously observed:

Because claims of inadequate representation are

oft-times made by dissatisfied clients seeking to

assign the blame for their predicament to their

18a

lawyers rather than themselves, the law presumes

that counsel is effective, and places on the appellant

the burden of establishing ineffectiveness.

United States v. Mansfield, 24 M.J. 611, 616 (A.F.C.M.R.

1987). Here, appellant has failed to meet that burden.

Having examinet the record of trial, the assignment of

error, and the government’s reply thereto, we have concluded

that the findings and sentence are correct in law and fact, the

sentence is appropriate, and no error prejudicial to the

appellant’s substantial rights was committed. Accordingly, the

findings of guilty and the sentence are

AFFIRMED.

Senior Judge YOUNG and Judge BECKER concur.

OFFICIAL

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief Court Administrator

19a

APPENDIX C

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

UNITED STATES

v.

Technical Sergeant LARRY E. MARSHALL,

FR435--82-5206

UNITED STATES AIR FORCE

ACM S$29406

23 September 1992

Sentence adjudged 1 March 1991 by SPCM

convened at Travis Air Force Base, California.

Military Judge: William Thompson, Jr.

Approved sentence: Bad—conduct discharge and

reduction to E-1.

Appellate Counsel for the Appellant: John A.

Wickham, Esq. (argued), Colonel Jeffrey R. Owens,

Major Mary C. Yastishock, Captain Ursula P. Moul,

and Gary Myers, Esq.

Appellate Counsel for the United States: Major

Kingston E. Smith (argued), Colonel Richard L.

Purdon, Lieutenant Colonel Brenda J. Hollis,

Lieutenant Colonel Jeffery T. Infelise, Major Paul

H. Blackwell, Jr., Captain James C. Sinwell, and

Captain Jane M.E. Peterson.

20a

Before

DIZON, PRATT, and McLAUTHLIN

Appellate Military Judges

OPINION OF THE COURT

DIXON, Chief Judge:

Contrary to his pleas, appellant was convicted of drunk

driving, being drunk and disorderly, and of disobeying a

lawful order to provide a blood test. A special court—martial,

consisting of members, sentenced him to a bad—conduct

discharge and reduction to the grade of E~1. The convening

authority approved the sentence as adjudged.

The sole issue raised on appeal was whether appellant

was deprived of effective assistance of counsel because he

was advised by his civilian defense counsel to reject

nonjudicial punishment. We find he was not and affirm.

Appellant is a technical sergeant with 174 years of active

service in the Air Force. Prior to trial, he was offered

nonjudicial punishment for the same minconduct which

resulted in his court-martial. Appellant initially consulted

with a military defense counsel, who later became his detailed

trial defense counsel. His military defense counsel, after

discussing the various options with appellant, recommended

he accept nonjudicial punishment. Thereafter, appellant

retained civilian defense counsel to represent him and elected

to turn down nonjudicial punishment. Military defense

counsel remained on appellant’s defense team but was

instructed by civilian counsel and appellant that his sole

responsibility was to advise on procedural matters.

Post—trial affidavits from appellant and his detailed trial

defense counsel were submitted in support of the ineffective

assistance claim. These affidavits disclose material

21a

differences between his civilian and military defense counsel

as to what tactics and strategies the defense should utilize.

The principal issue between the two, however, centered on

whether appellant should accept nonjudicial punishment.

Both post-trial affidavits address discussions between

appellant and his counsel the day before trial. Military counsel

advised appellant to accept the still open nonjudicial

punishment option. Civilian counsel acknowledged that

appellant probably would be convicted of at least some of the

charges but continued to advise him to reject nonjudicial

punishment. Civilian counsel opined that appellant would not

receive a bad—conduct discharge and offered to continue to

represent the appellant if the Air Force tried to

administratively separate him.

With the benefit of hindsight, it now is clear that

appellant’s decision to reject nonjudicial punishment was

ill-advised. However, a worse than expected result at a court—

martial does not necessarily equate to ineffective assistance of

counsel. The courts in assessing counsel’s effectiveness have

refused to second—guess strategic or tactical decisions. United

States v. Coronado, 15 M.J. 750 (A.F.C.M.R. 1983); United

States v. Rivas, 3 M.J. 282 (C.M.A. 1977). The standard for

reviewing ineffective assistance claims is well established.

The appellant must first show that counsel’s performance at

trial was deficient and must then establish that the deficient

performance prejudiced the defense so as to deprive the

accused of a fair trial. Strickland v. Washington, 466 U.S. 668

(1984).

Appellant has failed to meet either prong of the

Strickland test. There has been no showing that his civilian

defense counsel’s performance at trial was so flawed that the

trial result is called into question. See United States v.

Savinovich, 25 M.J. 905 (A.C.M.R. 1988); United States v.

Scott, 24 M.J. 186 (C.M.A. 1987). In this case, appellant and

22a

his counsel were successful in obtaining an acquittal on one

contested specification concerning the disobedience of a

lawful order. In fact, appellant’s appellate brief concedes the

absence of any legal error in the trial itself.

We reject appellant’s contention that the civilian defense

counsel’s pretrial advice that he not accept nonjudicial

punishment entitles him to relief. Although the recipient of

conflicting advice, it is clear that appellant was fully and

thoroughly informed of his various options and of their

potential repercussions. Whether or not to demand trial by

court-martial and force the government to prove guilt beyond

a reasonable doubt is, in the final analysis, a personal decision

to be made by the accused. This Court will not come to the

aid of an appellant who, after fully exploring his legal options,

chooses to ignore good legal advice and instead elects to

follow what subsequently proves to be bad advice.

Having examined the record of trial, the assigned error,

and government’s reply theretu, we conclude the findings and

sentence are correct in law and fact and no error prejudicial to

the substantial rights of the accused was committed.

Accordingly, the findings of guilty and the sentence are

AFFIRMED.

Senior Judges PRATT (who participated in this decision

before his reassignment from the Court) and MCLAUTHLIN

concur.

OFFICIAL

NAOMI D. ALLEN

TSgt, USAF

Chief Court Aibetnbaine AFCMR