United States v. Adams , 59 M.J. 367 ( 2004 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Brian P. ADAMS, Specialist
U.S. Army, Appellant
No. 02-0457
Crim. App. No. 20000431
United States Court of Appeals for the Armed Forces
Argued December 10, 2003
Decided April 8, 2004
ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain Craig A. Harbaugh (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major
Allyson G. Lambert (on brief); Lieutenant Colonel E. Allen
Chandler Jr., and Major Jeannette K. Stone.
For Appellee: Captain Michael D. Wallace (argued); Lieutenant
Colonel Margaret B. Baines, and Major Natalie A. Kolb (on
brief); Major Jennifer H. McGee.
Military Judge: D. L. Wilkins
This opinion is subject to editorial correction before final publication.
United States v. Adams, No. 02-0457/AR
Judge ERDMANN delivered the opinion of the Court.
Specialist Brian P. Adams was tried by a military judge
sitting as a general court-martial. He was charged with rape
and adultery in violation of Articles 120 and 134, Uniform Code
of Military Justice [UCMJ], 10 U.S.C. §§ 920, 934 (2000),
respectively. He entered pleas of not guilty to the adultery
charge and guilty to the lesser-included offense of attempted
rape in violation of Article 80, UCMJ, 10 U.S.C. § 880 (2000).
He was found guilty of both adultery and rape. His adjudged and
approved sentence included a bad-conduct discharge, confinement
for 14 months, total forfeitures, and reduction to the lowest
enlisted grade.
Following the trial, Adams retained a civilian attorney to
represent him in the post-trial process. Although the civilian
attorney actively represented him before the convening
authority, a brief prepared by the civilian counsel for filing
with the Army Court of Criminal Appeals was never received by
the Army Defense Appellate Division and was never filed.
Following a number of continuance requests by a series of
assigned military counsel, a “merits” pleading was filed by
military counsel with the Army court.
The Army court affirmed Adams’ conviction in a per curiam
decision and later denied an untimely motion for
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reconsideration. Adams petitioned this Court for relief and we
granted review of the following issue:
WHETHER APPELLANT’S APPELLATE DEFENSE
COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL.
We find that Adams has failed to meet the prejudice
component of the ineffective assistance of counsel test set
forth in Strickland v. Washington, 466 U.S. 668 (1984), and
therefore affirm the Army Court of Criminal Appeals.
BACKGROUND
After his trial Adams retained the services of a civilian
defense counsel, Mr. Cassara, to represent him before the
convening authority. Mr. Cassara submitted matters pursuant to
Rule for Courts-Martial 1105 [R.C.M.] in which he challenged the
military judge’s ruling admitting Adams’ pretrial statement to
criminal investigators. Despite this effort, the convening
authority approved the adjudged sentence.
Adams’ record of trial was subsequently forwarded to the
Army Court of Criminal Appeals for review pursuant to Article
66(c), UCMJ, 10 U.S.C. § 866(c) (2000). Captain Maher was
initially detailed as Adams’ appellate defense counsel. Through
discussions with Adams, Captain Maher became aware that Mr.
Cassara would serve as civilian appellate defense counsel before
the Court of Criminal Appeals. See Article 70(d), UCMJ, 10
U.S.C. § 870(d) (2000). Captain Maher communicated with Mr.
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Cassara by electronic mail and received a response from Mr.
Cassara confirming that he would represent Adams before the Army
court. Mr. Cassara did not, however, file any notice of
appearance with the Court of Criminal Appeals.
Captain Maher continued to represent Adams until he left
active duty and during that time he filed three motions
requesting extensions of time in which to file a brief at the
Army court. The motions did not indicate that Adams was also
represented by civilian counsel. The relationship between the
civilian and military counsel at this point was summarized in
Adams’ appellate brief:1
Apparently Mr. Cassara was still working behind the
scenes during this timeframe. According to Mr.
Cassara, in May 2001, he researched and drafted an
appellate brief for SPC Adams. Mr. Cassara also
alleges that he personally discussed the case with
CPT Maher in June or July of 2001. Finally, Mr.
Cassara remembers either sending or attempting to
send a copy of the finished brief to CPT Maher.
Supposedly due to a “miscommunication” between
civilian and military appellate defense counsel,
Mr. Cassara believed that the brief was filed by
CPT Maher sometime in June or July of 2001. There
is no evidence in the file that it was ever
received by the [Defense Appellate Division], nor
is there any evidence that the brief was filed with
the [Army Court of Criminal Appeals]. Mr. Cassara
maintains that he experienced “computer problems”
that rendered it impossible for him to be certain
that CPT Maher received the brief that he believes
he forwarded.
1
The Government accepted the statement of facts set forth in
Adams’ brief.
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When he left active duty, Captain Maher was succeeded by
Captain Richardson as Adams’ detailed military appellate defense
counsel. Captain Richardson apparently did not communicate with
either Adams or Mr. Cassara and the extent of his representation
consisted of filing three motions for extension of time in which
to file a brief.
Captain Richardson was succeeded by Captain Carrier as
appellate defense counsel. Captain Carrier did communicate with
Adams to discuss the status of the appeal. Following that
discussion, in which there was apparently no discussion of
civilian representation, Captain Carrier submitted a “merits”
pleading on behalf of Adams to the Army court.2 Although
asserting no specific issues, that pleading contained a
footnote, pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982)3, stating:
Pursuant to U.S. v. Grostefon, 12 M.J. 431 (C.M.A.
1982) and Army Court of Criminal Appeals Rule 15.3(b)
appellant asks this Court to consider the issue raised
in the Appendix[4] as well as those matters raised to
2
A “Pro Forma” or “Merits” pleading is provided for by Internal
Rules of Practice and Procedure, United States Army Court of
Criminal Appeals, Rule 15.2. The rule provides for a pleading
to be filed “without conceding the legal or factual correctness
of the findings of guilty or the sentence . . . which does not
assign error[.]”
3
See id., Rule 15.3, providing that “Grostefon issues shall be
brought to the Court’s attention by footnote or in an Appendix
to the Brief on Behalf of Appellant.”
4
The merits pleading in the original record does not contain an
Appendix.
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the convening authority pursuant to Rule for Court[s]-
Martial 1105.
The matters raised in the R.C.M. 1105 submission to the
convening authority included a challenge to the military judge’s
ruling admitting Adams’ pretrial statement to criminal
investigators. At this point, however, Captain Carrier was not
aware that Mr. Cassara was involved in the case even though he
had communicated directly with Adams prior to filing the merits
pleading.
The Army court affirmed the trial court’s findings and
sentence in a per curiam decision. That opinion noted that the
court had considered “the issues personally specified by the
appellant.” United States v. Adams, ARMY 20000431 (A. Ct. Crim.
App. January 10, 2002). Thereafter, Adams filed a Petition for
Grant of Review that was docketed at this Court on April 10,
2002.
Following the filing of the petition with this Court,
Captain Carrier became aware of Mr. Cassara’s involvement in
Adams’ appeal and the fact that a pleading prepared by Mr.
Cassara had not been filed at the Army Court of Criminal
Appeals. Captain Carrier moved to withdraw the Petition for
Grant of Review without prejudice, arguing in the motion that
“there are matters that appellant, civilian defense counsel, and
military counsel need to address to the Army Court of Criminal
Appeals, which cannot exercise jurisdiction if the case is
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United States v. Adams, No. 02-0457/AR
before this Court.” Captain Carrier attached to his motion a
copy of the brief that Mr. Cassara “intends to submit to the
Army Court of Criminal Appeals.” We granted the motion to
withdraw on May 16, 2002.
Adams then filed a “Motion for Leave to File Out of Time a
Request for Reconsideration” with the Army court. The “Request
for Reconsideration” attached to the motion to file raised the
issue of the admissibility of Adams’ pretrial statement. The
Army court denied the motion for leave to file out of time.
DISCUSSION
“An accused has the right to effective representation by
counsel through the entire period of review following trial,
including representation before the Court of Criminal Appeals
and our Court by appellate counsel appointed under Article 70,
UCMJ, 10 U.S.C. § 870 (2000).” Diaz v. The Judge Advocate
General of the Navy, 59 M.J. 34, 37 (C.A.A.F. 2003)(citing
United States v. Palenius, 2 M.J. 86 (C.M.A. 1977)). See also
United States v. Dorman, 58 M.J. 295, 297 (C.A.A.F. 2003)
(“[I]ndividuals accused of crime shall have the assistance of
counsel for their defense through completion of their appeal. .
. . This right includes the right to the effective assistance
of counsel on appeal.”); United States v. Knight, 53 M.J. 340,
342 (C.A.A.F. 2000)(“[T]he right of a military accused to
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United States v. Adams, No. 02-0457/AR
effective assistance of counsel after his trial is a fundamental
right.”).
Claims that appellate defense counsel have rendered
ineffective assistance are measured by the same test applicable
to such claims lodged against a trial defense counsel. United
States v. Hullum, 15 M.J. 261, 267 (C.M.A. 1983). Thus, we are
guided by the Supreme Court’s two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). As applied to
the appellate setting, this test places the burden on an
appellant to show both deficient performance by appellate
defense counsel and prejudice. An appellant meets his burden on
deficient performance when he demonstrates that his appellate
counsel’s performance was so deficient that it fell below an
objective standard of reasonableness.5 Id. at 688.
5
An appellant’s burden is heavy because counsel is presumed to
have performed in a competent, professional manner. To overcome
this presumption, an appellant must show specific defects in
counsel’s performance that were “unreasonable under prevailing
professional norms.” United States v. Anderson, 55 M.J. 198,
201 (C.A.A.F. 2001). We apply a three-part test to determine
whether an appellant has overcome the presumption of competence:
1. Are the allegations made by appellant true;
and, if they are, is there a reasonable
explanation for counsel’s actions . . . ?
2. If they are true, did the level of advocacy
“fall[] measurably below the performance . . .
[ordinarily expected] of fallible lawyers”?
3. If ineffective assistance of counsel is found
to exist, “is . . . there . . . a reasonable
probability that, absent the errors, [there would
have been a different result]?”
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The burden to show prejudice is met when the appellant
shows that appellate “counsel’s errors were so serious as to
deprive the [appellant] of a fair [appellate proceeding] . . .
whose result is reliable.” Id. at 687. See United States v.
Key, 57 M.J. 246, 249 (C.A.A.F. 2002)(prejudice is not
established where there is “no reasonable likelihood” of a
different result); see also United States v. Drewell, 55 M.J.
131, 133 (C.A.A.F. 2001); United States v. Christy, 46 M.J. 47,
50 (C.A.A.F. 1997); United States v. Curtis, 44 M.J. 106, 118-19
(C.A.A.F. 1996). We review an appellate defense counsel’s
effectiveness de novo as a question of law. See Key, 57 M.J. at
249; United States v. Sales, 56 M.J. 255, 258 (C.A.A.F. 2002).
There is, however, no particular order in which the two
components must be addressed.
[A] court need not determine whether counsel’s
performance was deficient before examining the
prejudice suffered by the defendant as a result
of the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an
ineffective claim on the ground of lack of
sufficient prejudice, which we expect will often
be so, that course should be followed.
Strickland, 466 U.S. at 697. See also United States v.
McConnell, 55 M.J. 479, 481 (C.A.A.F. 2001).
United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)(citations
omitted). See also United States v. Grigoruk, 56 M.J. 304, 307
(C.A.A.F. 2002).
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Assuming without deciding therefore, that civilian defense
counsel’s failure to file a notice of appearance with the Court
of Criminal Appeals, the lack of communication among the various
appellate defense counsel and the failure to file civilian
counsel’s substantive brief before the Army court was deficient
performance, we turn to the prejudice component of the test for
ineffective assistance.6
An appellant has the right to representation before the
Army Court of Criminal Appeals by both detailed military and
civilian counsel. See Article 70(c)-(d). In such cases, the
civilian counsel normally exercises the responsibilities of lead
counsel for the defense. See United States v. May, 47 M.J. 478,
481 (C.A.A.F. 1998)(citing United States v. Tavolilla, 17 C.M.A.
395, 38 C.M.R. 193 (1968)). In analyzing Adams’ claim of
ineffective appellate representation, we do not look at the
shortcomings of any single counsel and speculate about the
impact of individual errors. Rather, we measure the impact upon
the proceedings “by the combined efforts of the defense team as
a whole.” McConnell, 55 M.J. at 481 (quoting United States v.
Boone, 42 M.J. 308, 313 (C.A.A.F. 1995)).
6
The Government conceded in its Final Brief “that civilian
appellate defense counsel provided ineffective assistance of
counsel in that he failed to ensure that his brief was filed in
a timely fashion.”
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Citing United States v. May, 47 M.J. 478 (C.A.A.F. 1998),
Adams argues that prejudice should be assumed in this case
because he was effectively deprived of counsel at the appellate
level. In May, the appellant had both military and civilian
counsel for his Article 66(c) appeal. Despite the fact that the
Court of Criminal Appeals knew May was represented, no brief of
any kind was filed and that court affirmed the findings and
sentence without the benefit of briefs. Addressing those facts,
we said, “Where, as in this case, appellate counsel do nothing,
an appellant has been effectively deprived of counsel, and
prejudice is presumed.” May, 47 M.J. at 481.
Adams, however, was not wholly unrepresented before the
Court of Criminal Appeals. At all times he had detailed
military appellate defense counsel who undertook various actions
in the case. The initial military counsel communicated with Mr.
Cassara, ascertained that Mr. Cassara would represent Adams
before the Army court and thereafter filed several motions for
continuance. The next military counsel did not contact Adams or
Mr. Cassara, but did file three motions for continuance.
Captain Carrier, the last military defense attorney to represent
him before the Army court, communicated with Adams, “carefully
examined the record of trial,” filed a proper form of pleading
at the Army court, and drew the Army court’s attention to Adams’
personal assertions in a “Grostefon” footnote. We find that
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Adams was not unrepresented before the Court of Criminal Appeals
and is therefore not entitled to the presumption of prejudice
that would follow when counsel is wholly absent. See id.
(citing Penson v. Ohio, 488 U.S. 75, 88 (1988)).
Absent the presumption of prejudice, this record does not
support a conclusion that Adams was prejudiced by the absence of
Mr. Cassara’s brief at the court below. The single issue raised
by Mr. Cassara in the “missing” brief and in the brief that was
later presented to the Army court as part of the motion for
reconsideration concerned the admissibility of Adams’ pretrial
statement to criminal investigators. At trial, Adams contended
that his statement was coerced and involuntary with respect to
any admissions concerning penetration. He asserted those
particular admissions were inserted into the final statement by
the investigators and that he was coerced into adopting them.
Adams did not contest the voluntariness of his pretrial
statement in any other respect.
After the issue was fully litigated on the record, the
military judge found, by a preponderance of the evidence, that
Adams’ pretrial statements were voluntary. Adams subsequently
entered a plea of guilty to the lesser-included offense of
attempted rape and acknowledged that he understood he was
waiving any objection to his pretrial statement with respect to
that lesser-included offense. It is in this context that the
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record was presented to the Court of Criminal Appeals for review
under Article 66(c), and it is in this context that we have
reviewed whether Adams was prejudiced by the absence of the
brief prepared by civilian counsel.
While we neither condone the lack of communication between
appellate counsel nor derogate the value of a researched brief
as an aid to an appellate court, we find that the result would
have been no different had Mr. Cassara’s brief been properly
filed and considered by the Army court. See McConnell, 55 M.J.
at 482 (finding no prejudice where the appellant failed to show
a “reasonable probability” that a motion not filed would have
been meritorious). Several factors lead us to that conclusion.
First, we note that a brief by Mr. Cassara appears in the
record both as an attachment to Appellant’s motion to withdraw
his petition in this Court and as an attachment to his
subsequent motion for reconsideration in the Court of Criminal
Appeals. The brief raised a single issue of law regarding the
admissibility of Appellant’s pretrial statement, and did not
address the unique responsibilities of the Court of Criminal
Appeals under Article 66(c), such as determination of questions
of fact or sentence appropriateness. Our Court has discretion
to resolve such issues of law at our level or to remand a case
for further proceedings at the Court of Criminal Appeals. In
the present case, the voluntariness of the pretrial statement
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was fully litigated and comprised a substantial portion of the
record of trial. The brief does not add significant arguments
to the matters advanced at trial. Accordingly, we need not
return the case to the Court of Criminal Appeals for further
consideration of whether counsel’s performance was deficient
because we conclude that any alleged deficiency by appellate
counsel did not deprive Adams of a fair appellate review at the
Court of Criminal Appeals. See, e.g., McConnell, 55 M.J. at
481.
Second, we note that a Court of Criminal Appeals is charged
by the UCMJ with the responsibility of reviewing the “entire
record” and approving “only such findings of guilty and the
sentence or such part or amount of the sentence, as it finds
correct in law and fact.” Article 66(c). The Court of Criminal
Appeals was required to independently review the record of
trial, including the extensive litigation in the record
regarding Appellant’s pretrial statement. We do not minimize
the role of effective advocacy during Article 66(c) review.
Courts of Criminal Appeals, however, are statutorily charged
with reviewing the entire record for law and fact, and there is
no indication they failed to perform this duty here in reviewing
a legal issue that was fully litigated on the record at trial.
See United States v. Washington, 57 M.J. 394, 399-400 (C.A.A.F.
2002).
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Third, Adams was represented before the Court of Criminal
Appeals at all times. Captains Maher, Richardson and Carrier
provided uninterrupted representation. Although Captain Carrier
was not informed by Appellant or the other counsel of Mr.
Cassara’s involvement, any deficiency in that regard did not
prejudice Appellant, as noted above. With respect to the
actions taken by Captain Carrier, we observe that he
communicated with his client, thoroughly reviewed the record,
filed a pleading on behalf of his client, and complied with
Adams’ direction to make a personal assertion pursuant to
Grostefon.
Fourth, the merits brief specifically directed the Army
court’s attention to Adams’ post-trial submission to the
convening authority. That submission was prepared by Mr.
Cassara and it specifically challenged the voluntariness of the
pretrial statements, stating that the “method by which the
alleged confession was garnered” was the “most disturbing”
aspect of the case. The “Grostefon” footnote and the Army
court’s acknowledgement that it considered “the issues
personally specified by the appellant,” demonstrate that the
Army court did in fact review the voluntariness of the pretrial
statements.
We do not condone the poor communications and other
circumstances that caused the brief by Mr. Cassara to be lost or
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otherwise misplaced. Under the circumstances presented in this
case, any deficiency in counsel’s performance did not prejudice
Adams’ right to review by the Court of Criminal Appeals under
Article 66(c). We are also confident that had the admissibility
of Adams’ pretrial statement been presented in the brief
prepared by Mr. Cassara, the conclusion of the Army Court of
Criminal Appeals would have been no different. We find that
Adams has not sustained his burden of demonstrating that that
review was unreliable or unfair and therefore prejudicial.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
16