# Petition for Writ of Certiorari — Hicks v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1052

## Text

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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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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1850%3A1. Public record. Not legal advice.