Petition for Writ of Certiorari — Hicks v. United States

Supreme Court, U.S

eS 4 oe

92 936 DEC - 4 1997

No.

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

AIRMAN FIRST CLASS CHRISTOPHER T. HICKS,

PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

On Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Carol L. Hubbard

Major, United States Air Force

Appellate Defense Counsel!

Counsel of Record

Kim L. Sheffield

Lt Colonel, United States Air Force

Chief, Appellate Defense Counsel

Counsel for Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

November 1997

1 pP

QUESTION PRESENTED

Whether the trial defense counsel’s failure to evaluate

and ensure that documentation submitted “in support of”

petitioner’s request for clemency did not directly and

prejudicially contradict petitioner’s personal plea for

clemency constituted ineffective post-trial assistance of

counsel, such that petitioner was denied his Sixth Amendment

right to counsel.

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TABLE OF CONTENTS

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CONSTITUTIONAL PROVISION INVOLVED ......... |

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APPENDIX A

(Opinion of the United States Court of Appeals

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APPENDIX B

(Opinion of the United States Air Force

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TABLE OF AUTHORITIES

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U.S. Supreme Court Cases:

Strickland v. Washington, 466 U.S. 668 (1984) ....... 6

Military Cases:

United States v. Carter, 40 M.J. 102

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United States v. Dresen, 40 M.J. 462

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United States v. Lewis, 42 M.J. 1 (1995) ............ 8

United States v. MacCulloch, 40 M.J. 236

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Federal Statutes:

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I

The petitioner, Airman First Class Christopher T. Hicks,

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 12 September 1997.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at United States y.

Hicks, 46 M.J. 90 (1997), is located at Appendix A. The

unpublished opinion of the United States Air Force Court of

Criminal Appeals (AF Ct. Crim App, 28 June 1996) is located

at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 12 September 1997. The

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

§ 1259(3) (West Supp. 1996) and 10 U.S.C. § 867(a)(3) (West

Supp. 1996).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the Constitution of the United

States provides, in relevant part:

“In all criminal prosecutions, the accused

Shall . . . have the Assistance of Courisel for his

defence.”

STATEMENT OF THE CASE

After being convicted by military court-martial, petitioner

was in confinement at the time his post-trial clemency matters

were being prepared for submission to the convening authority.

See Petitioner’s Affidavit submitted to the Air Force Court of

5

Criminal Appeals. Petitioner had provided his counsel with a

list of names of individuals he thought might be willing to

submit matters on his behalf. /d. Trial defense counsel

assumed responsibility for contacting these individuals and

taking in any submissions they made. /d.

In a clemency letter on petitioner’s behalf, trial defense

counsel explained petitioner’s clemency request—that the

convening authority remit/suspend petitioner’s remaining time

in confinement, or in the alternative, suspend the adjudged Bad

Conduct Discharge. See “Petition for Clemency” dated 16 Feb

1995. Trial defense counsel implored the convening authority:

“Before making a decision on clemency, AlC Hicks asks that

you review his statements on sentencing, as well as the attached

documents in support of his position.” /d. at para 3.

One of the letters trial defense counsel collected for

petitioner’s clemency submission was from SSgt Robert J.

Fitzpatrick, a direct supervisor of petitioner. /d. In this letter,

SSgt Fitzpatrick stated

“During the period AIC Hicks was assigned to me

his duty performance was satisfactory. His Dress

and Appearance were usually at standards or below.

His level of job knowledge and proficiency were

also satisfactory. Frankly, before these charges

were invoked against him I would not have

considered his performance competitive in the fast

paced, high standard, heavy responsibility, Crew

Chief Career field.

“In fact, | would never recommend his retention in

the Air Force. The fact is that his being in prison is

hurting us out on the flightline. As long as AIC

Hicks remains in prison our unit doesn’t get a

replacement for his position. This means that for

the four months we let him sit in prison he serves a

sentence for something HE did, yet at the same time

WE out at the 12th pay the price also.

“IT request clemency not on behalf of AIC Hicks

who was justly sentenced for something he did, but

for the 12th Fighter Squadron Crew Chiefs who will

unjustly suffer by another hit to already low

manning roster.”

Trial defense counsel collected a second letter from SSet

John Thomas, a self-described “friend” of petitioner who'd

had contact with him both on and off duty. In his letter, SSgt

Thomas stated of petitioner that

“All aspects of his duty performance were

satisfactory. He would rate below most of his peers,

although this may have been because of the

pressures he felt knowing about his financial

problems.

“TY wouldn’t recommend AIC Hicks’ retention in the

Air Force simply because he hasn’t adapted to [the]

Air Force very well. This doesn’t mean he couldn’t

be extremely successful in the civilian sector. |

would request clemency for AIC Hicks on the

amount of time spent in prison and also the

revocation of his Bad Conduct Discharge to allow

for other employment opportunities.”

Both of the letters above are dated 2 Feb 1994 (they were

apparently misdated since the clemency submissions were

prepared in February, 1995). As stated in his post-trial

affidavit accepted by the Air Force Court of Criminal Appeals,

supra, petitioner did not recall ever having been shown

these letters by trial defense counsel. He gave trial defense

counsel a list of names, and trial defense counsel took it from

there. /d.

At the close of his own, 15 February 1995 letter

requesting clemency, petitioner opined that

. if my peers and supervisors were cznsulted they

would also support my returning to active duty status with my

squadron.” Repeating this latter statement in the Addendum

to the SJAR!, the Acting Staff Judge Advocate immediately

followed it with:

“AlCl Hicks has included two letters from NCOs

who worked with him in the 12th Fighter Squadron.

They both describe his duty performance as

satisfactory, but rate him below par compared

against his contemporaries. Both NCO’s state they

would not recommend AIC Hicks be retained in the

Air Force; however, one recommends suspension of

the BCD and the other asks that AIC Hicks be

released from confinement so that his manning slot

can be filled early.”

See Addendum to the Staff Judge Advocate’s

Recommendation as contained within the Record of Trial,

‘olume |. (emphasis in original). The convening authority

granted no clemency.

On 30 December 1994, Airman First Class Hicks was

sentenced to a bad conduct discharge, confinement for four

months, forfeiture of $555.00 pay per month for four months,

and reduction to the grade of E-1. The convening authority

approved the sentence on 22 February 1995. In an

unpublished decision issued on 28 June 1996, the Air Force

Court of Criminal Appeals affirmed as correct in law and fact

'Staff Judge Advocate’s Recommendation.

the findings and the sentence. See Appendix B. On 12

September 1997, the United States Court of Appeals for the

Armed Forces affirmed the conviction, holding petitioner’s

defense counsel did not directly or prejudicially contradict his

client’s post-trial plea for clemency. Additionally, the court

held that the failure of the staff judge advocate (SJA) to put

the pretrial agreement in proper context was harmless error.

United States v. Hicks, 46 M.J. 90 (1997). See Appendix A.

REASON FOR GRANTING THE PETITION

The Sixth Amendment guarantees the right to effective

assistance of counsel, and in the military this right extends to

assistance in the preparation and submission of post-trial

matters. See United States v. Dresen, 40 M.J. 462 (C.M.A.

1994)(counsel’s clemency letter may not concede

appropriateness of punitive discharge without express consent

of client); United States v. MacCulloch, 40 M.J. 236, 239

(C.M.A. 1994) (duty of counsel to make an evaluative

judgment and give advice on clemency matters which client

proposes to submit); United States v. Carter, 40 M.J. 102

(C.M.A. 1994)(emphasizing client’s right to assistance of

conflict-free counsel in preparation and submission of post-

trial matters).

Of greatest relevance in resolving the issue presented by

the instant case is United States v. MacCulloch, 40 M.J. 236

(C.M.A. 1994), In MacCulloch, the appellant directed his

trial defense counsel to include in his clemency submission,

matters which counsel would receive from appellant’s

parents. 40 M.J. 240 (Sullivan, C.J. dissenting). Among the

matters which defense counsel received from appellant’s

parents was a letter which had been written to them by a

civilian attorney who’d represented appellant at trial. 40 M.J.

at 237-38.

6

In this letter, civilian counsel implied that appellant had

committed more crimes than what he’d been charged with and

that the sentence appellant would receive as part of a pretrial

agreement was unlikely to be further reduced. 40 M.J. at 240.

Trial defense counsel submitted this letter in toto, just as he'd

received it. The Court of Military Appeals found his action in

having done so to constitute ineffective post-trial

representation. See id.

While the letter was only one of ten items submitted, its

effect was to effectively negate any plea for clemency. /d.

The Court found that trial defense counsel was required to

make an evaluative judgment as to what items sent to him by

appellant’s parents were to actually be submitted to the

convening authority. /d. at 239. If he thought some matters

should not be submitted, he should have so advised appellant.

/d. Ultimately, the court held that trial defense counsel should

have winnowed out what favorable information was contained

in civilian counsel’s letter and submitted only that information

in the form of an executive summary. /d. at 240. Trial

defense counsel’s failure to do so produced a failure of the

clemency process, requiring relief. /d.

Ineffective assistance of counsel exists where counsel

has been deficient in performance and petitioner has been

substantially prejudiced thereby. Strickland v. Washington,

466 U.S. 668 (1984). Measured against those of MacCulloch,

the facts of the instant case plainly demonstrate that trial

defense counsel was ineffective in his preparation and

submission of petitioner’s post-trial matters. Indeed, the

Court of Appeals for the Armed Forces found the trial defense

counsel was deficient on two counts: (1) that “he failed to

adequately explain the letters to his client; and (2) he failed to

inform the convening authority that SSgt Thomas

recommended that appellant receive an administrative

discharge instead of a bad-conduct discharge.” United States

v. Hicks, 46 M.J. 90, 93 (1997).

In his affidavit prepared at the Court’s direction. trial

defense counsel focused on the fact that the letters at issue

(from SSgts Fitzpatrick and Thomas) did contain some

language favorable to petitioner’s clemency requests.

However, he never offered any explanation for his failure to

have winnowed out the letters’ favorable recommendations

(for release from confinement and Suspension of the BCD) for

submission as an executive summary. Such an approach has

been suggested by the Court of Appeals for the Armed Forces

in the MacCulloch case and would have cured such a

troublesome problem. Equally, the trial defense counsel

failed t ) explain why he did not edit or even Suggest an edit to

petitioner’s clemency letter, deleting any reference to

petitioner’s assertion that peers and Supervisors would support

his retention in the Air Force and return to duty.

The failure of counsel to have taken either of the latter

two steps rendered petitioner’s clemency submission at odds

with itself, truly negating any plea for clemency. This

negation is clearly evident in the SJAR Addendum:

petitioner’s stated opinion that, if consulted. peers and

Supervisors, would support his return to active duty is directly

contrasted with the two letters from “NCO’s who worked with

him in the 12th Fighter Squadron” Stating that they would nor

(emphasis in the Addendum) recommend petitioner’s

retention in the Air Force and would rate him below par

compared against his contemporaries. The acting staff judge

advocate thought such statements so contradictory to the

petitioner’s personal plea for clemency that she highlighted

Said statements in the opening few paragraphs of the

Addendum.

Though the court below found the defense counsel’s

conduct did not substantially prejudice the petitioner, the self-

.

impeaching character of petitioner’s clemency package

prejudicially and dramatically reduced its effectiveness.

United States v. Lewis, 42 M.J. 1 (1995) (prejudice required

when defense counsel acted in a deficient manner in failing to

submit clemency matters as requested by the client). What

convening authority would entertain any desire to grant

clemency when the petitioner’s own attorney submitted

character statements from military supervisors who thought

the petitioner entirely unworthy of retention in the Air Force.

In fact, SSgt Fitzpatrick thought so little of the petitioner that

he blamed him for causing the remaining members of the 12th

Fighter Squadron to suffer due to the resultant manning

shortage. The failure of t-ial defense counsel to evaluate

petitioner's clemency package as a whole, ensuring its

internal consistency “blew” petitioner’s “last best chance,”

MacCulloch, 40 M.J. at 239, for sentencing relief. Cf. id.

quoting Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct.

3308, 3312-13, 77 L.Ed. 2d 987, — (1983)(Counsel’s duty to

focus On important issues and winnow out weaker arguments

means that “counsel should focus ‘on one central issue if

possible, or at most on a few key issues.””) Instead of

stressing favorable aspects of the petitioner’s service, such as

his service in Saudi Arabia in support of Operation Southern

Watch, the defense counsel allowed these character

assassinations to proceed on to the convening authority

unchecked by any meaningful evaluative process. Imagine

the reaction of the acting staff judge advocate in receiving

these “clemency” submissions which so ably demonstrated

her position: that the petitioner deserved no clemency. To

quote MacCulloch, “What we have here is a failure of the

clemency process, so relief is required.” 40 M.J. at 240.

CONCLUSION

The petition for a writ of certiorari should be granted.

November 1997

9

Respectfully submitted,

CAROL L. HUBBARD

Major, United States Air Force

Appellate Defense Counsel

Counsel of Record

KIM L. SHEFFIELD

Lt Colonel, United States Air Force

Chief, Appellate Defense Counsel

Counsel for Petitioner

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

la

APPENDIX A

United States, Appellee

V.

Christopher T. HICKS, Airman First Class

U.S. Air Force, Appellant

No. 96-1212

Crim. App. No. S29025

United States Court of Appeals for the Armed Forces

Argued March 4, 1997

Decided September 12, 1997

Counsel

For Appellant: Major Carol L. Hubbard (argued); Colonel

David W. Madsen (on brief); Colonel Jay L. Cohen,

Lieutenant Colonel Kim L. Sheffield, and Captain Todi S.

Carnes.

For Appellee: Major LeEllen Coacher (argued); Colonel

Theodore J. Fink and Lieutenant Colonel Michael J. Breslin

(on brief).

Amicus Curiae urging affirmance: Major R.W. Koeneke,

USMC (argued); Colonel Charles Wm. Dorman, USMC, and

Commander D.H. Myers, JAGC, USN.

Military Judge: Donald E. Walsh

Tried at Kadena Air Base, Okinawa, Japan

5

za

Opinion of the Court

CRAWFORD, Judge:

Pursuant to his pleas, appellant was convicted at a

special court-martial of failing to pay a just debt (5

specifications), in violation of Article 134, Uniform Code of

Military Justice, 10 USC § 934. The convening authority

approved the sentence by the military judge of a bad-conduct

discharge, confinement and forfeiture of $555 pay per month

for 4 months, and reduction to the lowest enlisted grade. The

Court of Criminal Appeals affirmed the findings and sentence

in an unpublished opinion. We granted review of the

following issues:

WHETHER TRIAL DEFENSE COUNSEL'S

FAILURE TO EVALUATE AND ENSURE THAT

DOCUMENTATION SUBMITTED “IN SUPPORT

OF” APPELLANT’S REQUEST FOR

CLEMENCY DID NOT DIRECTLY AND

PREJUDICIALLY CONTRADICT

APPELLANT’S PERSONAL PLEA FOR

CLEMENCY CONSTITUTED INEFFECTIVE

POST-TRIAL ASSISTANCE OF COUNSEL.

il

WHETHER THE CONVENING AUTHORITY’S

ACTION SHOULD BE SET ASIDE WHERE

THAT OFFICER PRESUMABLY ACTED ON

THE ADVICE OF HIS STAFF JUDGE

ADVOCATE THAT HE WAS “PERMITTED TO

CONSIDER THE FACT THAT AIC HICKS WAS

WILLING TO ACCEPT A SENTENCE MORE

SEVERE THAN THAT ACTUALLY IMPOSED

AT TRIAL WHEN DETERMINING THE

APPROPRIATENESS OF HIS SENTENCE.

3a

We hold that appellant’s defense counsel did not directly

or prejudicially contradict appellant’s post-trial plea for

clemency. We also hold that failure of the staff judge advocate

(SJA) to put the pretrial agreement in proper context was

harmless error.

FACTS

After trial, appellant provided defense counsel with a list

of individuals who would assist in preparing a clemency

package. Trial defense counsel contacted these individuals

and they submitted letters on appellant’s behalf. Some of the

letters, however, were not so favorable as appellant’s defense

counsel desired.

One of the letters was submitted from Staff Sergeant

(SSgt) Robert J. Fitzpatrick, a direct supervisor of appellant; it

stated:

During the period AIC [Airman First Class] Hicks

was assigned to me his duty performance was

satisfactory. His dress and appearance were usually

at standards or below. His levei of job knowledge

and proficiency were also satisfactory. Frankly,

before these charges were invoked against him I

would not have considered his performance

competitive in the fast-paced, high standard, heavy

responsibility, Crew Chief career field.

.... In fact, | would never recommend his retention

in the Air Force. The fact is that his being in prison

is hurting us out on the flightline. As long as AIC

Hicks remains in prison our unit doesn’t get a

replacement for his position. This means that for the

four months we let him sit in prison he serves a

sentence for something HE did, yet at the same time

WE out at the 12th pay the price also.

4a

| request clemency not on behalf of AIC Hicks who

was justly sentenced for something he did, but for

the 12th Fighter Squadron Crew Chiefs who will

unjustly suffer by another hit to [an] already low

manning roster.

Trial defense counsel also collected a letter from SSgt John

Thomas which stated:

All aspects of his duty performance were

satisfactory. He would rate below most of his peers,

although this may have been because of the

pressures he felt knowing about his financial

problems.

[ wouldn't recommend AIC Hicks’ retention in the

Air Force simply because he hasn't adapted to [the]

Air Force very well. This doesn’t mean he couldn’t

be extremely successful in the civilian sector. |

would request clemency for AIC Hicks on the

amount of time spent in prison and also the

revocation of his bad-conduct discharge to allow for

other employment opportunities.

At the close of his own letter requesting clemency,

appellant opined that “if my peers and supervisors were

consulted they would also support my returning to active duty

status with my squadron.” Appellant stated he did not

remember seeing these unfavorable letters. As a result of these

inconsistencies, the Government sought an affidavit from trial

defense counsel, Captain (Caps) David C. Capt C stated that

the two letters in question were discussed with appellant and

that appellant agreed to their submission as part of the

clemency package. Capt C also noted that it was his thought

that the convening authority would be more inclined to grant

relief if there was a viable picture of appellant.

Sa

In the addendum to the SJA’s recommendation, the

Acting SJA noted appellant had submitted a clemency

package and the items were all listed as attachments. The

Acting SJA then stated:

AIC Hicks asks that you grant him clemency by

reducing the period of confinement adjudged by the

court-martial and suspending his bad-conduct

discharge. He asks that you return him to duty in his

Squadron, and opines “if my peers and supervisors

were consulted they would also support my

returning to active duty status.”

AIC Hicks has included two letters from NCOs

who worked with him in the 12th Fighter Squadron.

They both describe his duty performance as

satisfactory, but rate him below par compared

against his contemporaries. Both NCOs state they

would not recommend AIC Hicks be retained in

the Air Force; however, one recommends

suspension of the BCD and the other asks that AIC

Hicks be released from confinement so that his

manning slot can be filled e

The defense submits this - error. The Government

argues in turn that this was a plea w change the forfeitures or

to seek a limitation on confinement.

The Acting SJA also advised the convening authority in

the Addendum as follows:

Prior to trial, AIC Hicks entered into a pretrial

agreement with your predecessor in command.

[Brigadier General] William T. Hobbins. AIC Hicks

offered to plead guilty to the five specifications of

which he now stands convicted, in exchange for a

limit on his sentence of a BCD, five months

confinement, forfeiture of 2/3 pay per month for six

6a

months, and reduction to E—l. You are permitted to

consider that AlC Hicks wan willing to accept a

sentence more severe than that actually imposed at

trial when determining the appropriateness of his

sentence.

The court below found that defense counsel, Capt C, was

acting competently when he submitted the clemency package.

He was seeking to appeal to the convening authority

concerning mission readiness and to present a credible picture

of appellant hoping that would be enough to secure remission

of the remaining confinement or suspension of the discharge.

It stated, “The fact that a tactic fails to achieve its intended

objective does not reflect on the competence of the attorney

who attempts it.” Unpub. op. at 4.

The court below noted, as to Issue II, that the Acting SJA

did not say that the pretrial agreement was clemency but,

rather, merely advised that the limitation on the sentence was a

factor the convening authority could consider. Unpub. op. at 3.

DISCUSSION

Regardless of indigence, the military accused has the

right to the effective assistance of counsel during the pretrial,

trial, and post-trial stages. United States v. Carter, 40 MJ 102,

105 (CMA 1994); United States v. Fluellen, 40 MJ 96, 98

(CMA 1994). This right is guaranteed by the Sixth

Amendment and Article 27, UCMJ, 10 USC 827.

Additionally, as we stated in United States v. MacCulloch, 40

MJ 236, 239 (1994):

Pursuant to ABA Model Rules of Professional

Conduct 1.3 (1983), which has been adopted by

the .. . [Air Force, see TJAG Policy Letter 26:

Rules of Professional Conduct (22 Oct 92)],

defendants are entitled to be zealously represented

by their attorneys.

7a

As to the effectiveness of counsel, we apply a two-

pronged test, the first being the competence prong, and the

second being the prejudice prong. Strickland v. Washington,

466 U.S. 668, 687 (1984); United States v. Scott, 24 MJ 186

(CMA 1987). The Strickland Court emphasized that “{j]udicial

scrutiny of counsel’s performance must be highly deferential.”

466 U.S. at 689. Normally, strategic or tactical decisions do not

lead to a showing of a lack of competence. /d. at 690-91.

Just as counsel should consult with and keep the client

informed as to what is being done on the client’s behalf during

the pretrial and trial stages, so too should counsel engage in

informative discussions with the client during the post-trial

stage. During this stage, counsel can petition for deferment of

confinement, request clemency, provide written materials

which may affect the convening authority’s decision, respond

to the SJA’s recommendation, refer to matters outside the

record of which the convening authority would not be aware,

and attack matters in the record of trial. Any of these actions

may be done to zealously represent the accused.

On the other hand, defense counsel makes the tactical

and strategic decisions on what to submit to the convening

authority. MacCulloch, 40 MJ at 239. Such decisions on

these submissions to the convening authority should be made

after consultation with the accused. Appellant’s defense

counsel agreed during oral argument in this Court that, while

there is no general requirement to show the letters to the

accused, that should be done. Just as the accused controls the

right to testify at trial, Standard 4~-5.2(a), ABA Standards for

Criminal Justice. The Defense Function (3d ed. 1993), the

accused also has the right to submit or not submit material to

the convening authority over defense counsel’s objection.

United States v. Lewis, 42 MJ | (1995). But issues similar to

those in this case generally or usually will be avoided where

there is consultation between counsel and the accused.

8a

We conclude that Capt C made a valid tactical decision

to use the two letters to support appellant’s plea for minimal

confinement. Defense counsel was faced with the challenge of

putting the best face on a weak case.

However, defense counsel was deficient on two counts:

(1) he failed to adequately explain the letters to his client; and

(2) he failed to inform the convening authority that SSgt

Thomas recommended that appellant receive an administrative

discharge instead of a bad-conduct discharge. Nevertheless,

the thrust of appellant’s clemency petition—though somewhat

unclear—was to minimize confinement, not to obtain

remission of the bad-conduct discharge. The convening

authority had already referred the case to a special court-

martial and had entered into a pretrial agreement providing for

a bad-conduct discharge. Thus, there was no reasonable

likelihood, in the absence of strong mitigating evidence, that

he would suspend or remit the discharge. Defense counsel

should have served as more than a robot or a clearing house,

and should have discussed with appellant the two letters, as

well as their pros and cons. For instance, had appellant

objected to using them, appellant’s clemency plea would have

been without supporting statements and, thus, even weaker

than it was with the somewhat derogatory statements.

Additionally, Capt C should have urged the convening

authority, who was a fighter pilot, to consider that clemency

would assist the servicemembers on the maintenance line by

giving them additional help. Defense counsel’s failure to

explain that SSgt Thomas wanted appellant to have an

administrative discharge in lieu of a punitive discharge, and his

failure to make a more direct appeal to the convening authority

as a fighter pilot, does not reflect well on the competence of

defense counsel under Strickland. Nonetheless, we hold that

defense counsel’s conduct did not substantially prejudice

appellant. Strickland, 466 U.S. at 687.

9a

As to Issue II, the Acting SJA commented in response to

the clemency package that appellant “was willing to accept a

sentence more severe than that actually imposed at trial,”

referring to the pretrial agreement. These comments were not

error. The Acting SJA did nothing more than inform the

convening authority of the terms of the pretrial agreement and

advise him that he could consider the pretrial agreement as a

factor in deciding whether to approve the adjudged sentence,

which was less than that provided for in the pretrial

agreement. Unlike the situation in United States v. Kinman, 25

MJ 99 (CMA 1987), the Acting SJA did not suggest that

appellant agreed the sentence was appropriate; she only said

that appellant agreed to accept it.

The statement by the Acting SJA might be viewed as

“new matter” in the Addendum. There is no indication in the

record that the Addendum was served on the defense, but that

issue is not before us. Had the Addendum been served as

legally required, Issue II would not be before us.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Chief Judge COX and Judges GIERKE and EFFRON

concur.

SULLIVAN, Judge (concurring in the result):

I see no unreasonable attorney performance in this case

and disagree with the majority’s suggestion that defense

counsel’s performance violated the competence prong of

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

United States v. MacCulloch, 40 MJ 236, 240 (CMA 1994)

(Sullivan, J., dissenting). As for Issue II, I would note that this

is not a case where evidence of pretrial negotiations was

introduced at a court-martial. See Mil.R.Evid. 410, Manual

for Courts-Martial, United States, 1984, and United States vy.

Barunas, 23 MJ 71, 76 (CMA 1986).

10a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class CHRISTOPHER T. HICKS, FR218—82-—6024

United States Air Force

ACM $29025

28 June 1996

Sentence adjudged 30 December 1994 by SPCM convened at

Kadena Air Base, Okinawa, Japan. Military Judge: Donald E.

Walsh (sitting alone).

Approved sentence: Bad-conduct discharge, confinement for 4

and reduction to E-1.

Appellate Counsel for Appellant: Colonel Jay L. Cohen,

Lieutenant Colonel G. Michael Lennon, and Captain Todi S.

Carnes.

Appellate Counsel for the United States: Colonel Jeffery T.

Infelise, Lieutenant Colonel Michael J. Breslin, and Major

LeEllen Coacher.

Before

HEIMBURG, GAMBOA, and SENANDER

Appellate Military Judges

lla

OPINION OF THE COURT

HEIMBURG, Senior Judge:

Consistent with his pleas, the appellant was convicted by

special court-martial of five specifications of dishonorable

failure to pay just debts, in violation of Article 134, UCMJ. 10

U.S.C. § 934 (1994). His approved sentence is a bad-conduct

discharge, confinement for four months, forfeiture of $555.00

pay per month for four months and reduction to E-1. The

appellant has raised two assignments of error concerning the

post-trial processing of his case. We find no prejudicial error

and affirm.

Background

The appellant’s trial concluded on December 30, 1994.

The staff judge advocate’s recommendation (SJAR), dated

February 1, 1995, advised the convening authority that the

appellant had not yet submitted clemency matters but “he may

still do so.” He further advised the convening authority that

“[y]ou must consider the record of trial. this recommendation,

and any matters submitted by AIC Hicks under RCM 1105

and 1106 in reaching your decision.” The SJAR was served

on the appellant and his counsel on February 6. On February

16, trial defense counsel submitted a “petition for clemency”

in which he requested suspension of “any remaining period of

confinement” or, in the alternative, suspension of the punitive

discharge. Attached to trial defense counsel’s letter were a

“Request for Clemency” signed by the appellant, dated

February 15, 1995, and two articles from the base newspaper.

The appellant’s “Request for Clemency” asked for

remission of any remaining confinement or, in the alternative.

suspension of the punitive discharge. He closed his letter by

Stating, “I believe that if my peers and supervisors were

consulted they would also support my returning to active duty

12a

Status with my squadron.” Other letters which were submitted,

but not listed as attachments to defense counsel's letter,

included letters from the appellant’s parents and grandparents,

requesting that the convening authority not approve the

punitive discharge.

Also not referenced by trial defense counsel, but

nonetheless submitted to the convening authority, were two

letters from noncommissioned officers who supervised the

appellant, both dated “2 FEB 1994” (since the trial occurred

on December 30, 1994, we assume that both individuals

committed the same typographical error, and really meant *

1995”). The first letter, from Staff Sergeant Fitzpatrick,

prefaced his comments by observing that the appellant’s

“Dress and Appearance were usually at standards or below.

His level of job knowledge and proficiency were also

satisfactory. Frankly, before these charges were invoked

against him I would not have considered his performance

competitive in the fast paced, high standard, heavy

responsibility, Crew Chief Career field.” He further stated

that although he “would never recommend [the appellant’s]

retention in the Air Force. . . his being in prison is hurting us

on the flightline.” He ended his “Request for Clemency” by

stating, “I request clemency not on behalf of AIC Hicks who

was justly sentenced for something he did, but for the 12th

Fighter Squadron Crew Chiefs who will unjustly suffer by

another hit to already low manning roster.”

Staff Sergeant Thomas, the author of the other letter,

characterized himself as a “friend” of the appellant. He

described the appellant as “an honest, sincere, person who

happened to have financial difficulties which were

mismanaged. I feel he didn’t realize what was going on very

well and didn’t realize the repercussions of charging such

exorbitant amounts.” Like Sergeant Fitzpatrick, Sergeant

Thomas “wouldn't recommend [the appellant’s] retention in

13a

the Air Force simply because he has not adapted to [the] Air

Force very well. This doesn’t mean he couldn’t be extremely

successful in the civilian sector.” He requested the convening

authority remit any remaining confinement time and

disapprove the punitive discharge “to allow for other

employment opportunities.”

The Addendum to the SJAR, which summarized all of

the above information, reminded the convening authority that

he had “broad discretion to reduce any punishment imposed at

trial,” but further opined that the sentence adjudged was

appropriate. The acting staff judge advocate closed the

Addendum by advising the convening authority that there had

been a pretrial plea agreement (limiting the confinement

approved to five months) and that he was “permitted to

consider that [the appellant] was willing to accept a sentence

more severe than that actually imposed at trial when

determining the appropriateness of his sentence.” The

convening authority took action on February 22, 1995,

approving the sentence as adjudged.

The Staff Judge Advocate’s Recommendation

The appellant complains that the advice contained the

Addendum to the SJAR was erroneous, in advising the

convening authority that he could consider the sentence

limitation imposed by the appellant’s pretrial plea agreement.

Citing an unpublished decision of this Court, appellate

defense counsel argue that the comments in the Addendum

amounted to advice that the convening authority had no

discretion; that “Hicks has agreed that five months would

have been appropriate; he has nothing to complain about after

getting only four.” We disagree.

First, our unpublished decision is not on point. In that

case, the accused was convicted o f multiple indecent acts

l4a

against children and sentenced to, inter alia, confinement for

20 years. A pretrial agreement limited confinement to 13

years. The SJAR advised the convening authority that

clemency was not appropriate because the accused had

already received “ample and sufficient clemency” (emphasis

supplied) by receiving the benefit of the plea agreement. The

error we found was the equation of a proposed pretrial

agreement sentence cap and clemency.

In this case, the complained-of comments were not

legally incorrect or misleading. The Addendum did not

represent to the convening authority that the pretrial

agreement's 5-month confinement cap amounted to clemency.

Neither did it advise the convening authority that the pretrial

agreement offer by the appellant constituted a representation

that 5 months of confinement was appropriate. See United

States v. Kinman, 25 M.1. 99, 101 (C.M.A. 1987). Rather, the

Addendum simply advised the convening authority that the

fact that the appellant offered a 5-month “cap” was a factor

which the convening authority was permitted to weigh in

reaching a decision on the appropriateness of the sentence.

See United States vy. Hendon, 6 M.J 171, 175 (C.M.A. 1979);

United States vy. El Amin, 38 M.J. 563 (A.F.C.M.R. 1993).

The Addendum and the original SJAR both advised the

convening authority that he had discretion to approve a lesser

punishment than that adjudged. We find no error.

Ineffectiveness of Counsel

Appellant also complains that he received ineffective

post-trial assistance of counsel because his counsel submitted

the letters from Sergeants Fitzpatrick and Thomas to the

convening authority. “I don’t believe my attorney ‘assisted’

me by submitting these letters, especially in light of the

statement I'd made in my letter about believing that peers and

supervisors would affirmatively recommend my retention in

lSa

the Air Force.” He claims to have no memory of reviewing

these letters prior to their submission to the convening

authority. Because there was no evidence in the record

whether the appellant did or not see the letters and agree to

their use, we ordered an affidavit from the trial defense

counsel. United States v. Lewis, 42 M.J. 1 (1995).

The appellant’s trial defense counsel. Captain C,

responded that he recalled showing both letters to the

appellant before he submitted them to the convening

authority. He explained that the appellant’s goals for

clemency changed during the post-trial process. Initially,

Captain C was trying to persuade the convening authority to

suspend the bad-conduct discharge. Later, after the appellant

had “difficulties adjusting to confinement,” the appellant

became adamant that Captain C attempt to reduce the

sentence to confinement as much as possible. That is why,

Captain C explained, he first requested the convening

authority to suspend or remit the remainder of the

confinement, and, if that was “not possible,” to suspend the

bad-conduct discharge.

The two letters, while not entirely complimentary of the

appellant, fit into the appellant’s goal of reducing his sentence

to confinement. Captain C stated he knew the convening

authority was a fighter pilot, and was trying to appeal to

“mission readiness” as the basis for giving his client relief

from confinement.

A claim of ineffective assistance of counsel requires

proof of two elements: incompetence and prejudice.

Strickland v. Washington, 466 U.S. 668. 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); United States v. Sanders, 37 MJ. 116,

118 (C.M.A.), cert. denied, __ U.S... 114 S. Ct. 600 (1993)

(quoting United States v. Scott, 24 M.J. 186. 188 (C.M.A.

1987)).

16a

Reviewing the letters in question in light of Captain C’s

affidavit, we find them consistent with the appellant’s request

for clemency. The fact that a tactic fails to achieve its

intended objective does not reflect on the competence of the

attorney who attempts it. We find that Captain C was not

ineffective in his post-trial assistance of the appellant. Since

we find no ineffectiveness, we need not look for prejudice.

We conclude that the findings and the sentence are

correct in law and fact, the sentence is not inappropriate, and

no error prejudicial to the substantial rights of the appellant

was committed. Article 66(c), UCMJ. 10 U.S.C. § 866(c)

(1994). Accordingly, the findings of guilty and the sentence

are

AFFIRMED

Judges GAMBOA and SENANDER concur.

OFFICIAL

LAURA L. GREEN

Clerk of Court