Filed: Jun. 06, 2018
Latest Update: Mar. 03, 2020
Summary: , Appellant raises a single issue on appeal: whether his trial defense counsel, were constitutionally ineffective because they offered as sentencing evidence, Appellants psychosexual evaluation report and expert testimony explaining, this evaluation. United States v. Gilley, 56 M.J.
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39209
________________________
UNITED STATES
Appellee
v.
Marc A. SIMS
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 6 June 2018
________________________
Military Judge: Donald R. Eller, Jr.
Approved sentence: Dishonorable discharge, confinement for 31 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 20 October 2016 by GCM convened at Spangdahlem Air Base,
Germany.
For Appellant: Major Patrick A. Clary, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
HARDING, Senior Judge:
A general court-martial composed of a military judge found Appellant
guilty, consistent with his pleas made pursuant to a pretrial agreement (PTA),
United States v. Sims, No. ACM 39209
of one specification of attempted rape in violation of Article 80, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 880; two specifications of rape in vio-
lation of Article 120, UCMJ, 10 U.S.C. § 920; three specifications of assault
consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928;
and one specification of kidnapping in violation of Article 134, UCMJ, 10
U.S.C. § 934. The military judge sentenced Appellant to a dishonorable dis-
charge, confinement for 31 years, forfeiture of all pay and allowances, and re-
duction to the grade of E-1. The PTA limited the term of confinement that could
be approved to 36 years. The convening authority disapproved the adjudged
forfeitures and waived the mandatory forfeitures for a period of six months,
directing they be paid to Appellant’s spouse, but otherwise approved the sen-
tence as adjudged.
Appellant raises a single issue on appeal: whether his trial defense counsel
were constitutionally ineffective because they offered as sentencing evidence
Appellant’s psychosexual evaluation report and expert testimony explaining
this evaluation. We find no prejudicial error and affirm.
I. BACKGROUND
In the early morning hours of 11 September 2015, Appellant raped his wife
by penetrating her anus with his penis, placed her in a chokehold, bound her
by applying restraints to her arms and legs, raped her again by penetrating
her mouth with his penis, and wrongfully confined her against her will. On the
evening of 22 April 2016, Appellant drugged SB, a woman he had met online,
by administering her a sleeping aid without her knowledge in order to facilitate
her anal rape. Appellant crushed sleeping tablets, mixed the resultant powder
with water, and duped SB into drinking the drugged water by telling her it
would help her avoid a hangover. SB quickly fell asleep but then woke up as
Appellant was removing her pants and attempting to position himself to pen-
etrate her anus with his penis. SB screamed at Appellant to stop. SB’s mother,
who was in the room next door, heard the screams and banged a shoe against
the wall. During the guilty-plea inquiry, Appellant admitted he would have
anally raped SB had she not woken up.
Based on the offenses with which he was charged, Appellant faced the pos-
sibility of confinement for life without eligibility of parole if convicted. Appel-
lant entered into a pretrial agreement that limited his confinement exposure
to 36 years. Based on the violent and repeated nature of the offenses committed
by Appellant against his wife and his premeditated plan to drug and rape SB,
trial defense counsel reasonably assessed a high likelihood that lengthy con-
finement would be adjudged and approached their sentencing strategy with
that in mind. They obtained expert consultation from a forensic criminal psy-
chologist who interviewed Appellant and produced a psychosexual evaluation
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United States v. Sims, No. ACM 39209
report. Trial defense counsel weighed the benefits and drawbacks and decided
to offer the expert’s testimony and report as a basis for the military judge to
determine a sentence of confinement of less than 36 years. The Defense expert
testified about his qualifications, the objective methodology for risk assessment
for recidivism for sexual assault offenses, the objective testing completed on
Appellant, and his interview of Appellant and provided his assessment of Ap-
pellant’s risk of re-offending.
So what I provided to the court is a hypothetical. If we go into
the future by 11 years at the age of 40, what happens to these
long-term markers of risk? Effectively they drop to what we de-
scribe as low, very close to zero. Now, that presupposes some
things, and I would be glad to describe them.
...
That he is taking advantage of treatment program options, that
he is making changes in his thought life, in his behavior, and
kind of what is happening with that.
...
So part of what I am trying to offer the court is there is reason
to be optimistic into the future, but it is contingent ultimately,
and I shared that in my report, on time, but not just time, and
treatment. And so I talk about that in the discussion section,
that time, because of lowering testosterone and some other
things, will be improvement in terms of risk, but you also notice
in that discussion it says "and treatment." So time and treat-
ment are really, I think, the strongest key factors that will bring
the score down. But it still offers, I think, an objective point of
reference to say there is reason to hope in this defendant's future
that it is not always going to be this horrific high level of risk
that he is at right now. There is a lot of reason to believe it will
substantially decrease as times moves forward.
Trial defense counsel then used the expert’s testimony and the psychosexual
evaluation report as a framework for their sentencing recommendation.
That tool really justifies a sentence anywhere from 11 to 31
years. 1 But 11 years is not appropriate. That is not enough time
to satisfy that first component, the vengeance component. So we
1The Defense expert testified that when Appellant reached 60 years of age, his risk of
recidivism would virtually be zero. Appellant was 29 years old at the time of his sen-
tencing hearing.
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United States v. Sims, No. ACM 39209
propose to you that 21 years is the perfect blend between being
angry about the facts of this case, giving justice to the victims,
and recognizing that there is hope of rehabilitation. And
whether or not [Appellant] is truly rehabilitated, as a factual
matter, the science says that he is not going to recidivate at cer-
tain age groups. Twenty-one years, he is 29 years old right now.
That would put him at 50 years old.
Trial counsel, focusing on the aggravated nature of Appellant’s repeated
crimes, argued Appellant should be confined for 40 years and only briefly ad-
dressed the testimony of the defense expert and the psychosexual evaluation
report and characterized the assessments of Appellant’s future risk of recidi-
vism over time as “all guesses.” Notably, trial counsel did not argue what Ap-
pellant characterizes as “aggravating facts” from the report that were not oth-
erwise available in the record to justify trial counsel’s sentencing recommen-
dation. The military judge sentenced Appellant to 31 years of confinement,
nine years less than the Government recommendation of 40 years and five
years below the PTA sentence limitation of 36 years.
II. DISCUSSION
Appellant argues his trial defense counsel were ineffective in offering as
sentencing evidence his psychosexual evaluation report and expert testimony
explaining it. Appellant marshals three reasons to support his claim. First, the
evaluation and expert testimony provided “aggravating privileged infor-
mation” to the sentencing authority that was otherwise unavailable and that
“influenced the term of confinement adjudged.” Second, the expert testimony
“rebranded potentially mitigating evidence—Appellant’s suicide attempt—as
an aggravator.” Finally, the value of this evidence—Appellant’s potential for
long-term rehabilitation—could have been garnered by “less risky alterna-
tives.”
While Appellant is correct that his trial defense counsel offered evidence in
the form of the psychosexual evaluation report and expert testimony that in-
cluded negative information about Appellant, the trial defense counsel’s expla-
nation for doing so was reasonable and their level of advocacy was well within
the performance standards ordinarily expected of fallible lawyers. 2
The Sixth Amendment guarantees Appellant the right to effective assis-
tance of counsel. U.S. CONST. amend. VI; United States v. Gilley, 56 M.J. 113,
2Having applied the principles announced in United States v. Ginn,
47 M.J. 236, 248
(C.A.A.F. 1997), and considered the entire record of Appellant’s trial, we find we can
resolve the issues raised by Appellant without additional fact-finding.
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United States v. Sims, No. ACM 39209
124 (C.A.A.F. 2001). In assessing the effectiveness of counsel, we apply the
standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and
begin with the presumption of competence announced in United States v.
Cronic,
466 U.S. 648, 658 (1984).
We review allegations of ineffective assistance of counsel de novo and uti-
lize the following three-part test to determine whether the presumption of com-
petence has been overcome:
1. Are appellant’s allegations true; if so, “is there a reasonable
explanation for counsel’s actions”?
2. If the allegations are true, did defense counsel’s level of advo-
cacy “fall measurably below the performance . . . [ordinarily ex-
pected] of fallible lawyers”?
3. If defense counsel was ineffective, is there “a reasonable prob-
ability that, absent the errors,” there would have been a differ-
ent result?
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (quoting United States
v. Polk,
32 M.J. 150, 153 (C.M.A. 1991)).
The United States Court of Appeals for the Armed Forces articulated in
United States v. Mazza,
67 M.J. 470. 474–75 (C.A.A.F. 2009),
Our analysis of counsel’s performance is highly deferential.
Strickland, 466 U.S. at 689. We are not to assess counsel’s ac-
tions through the distortion of hindsight; rather we are to con-
sider counsel’s actions in light of the circumstances of the trial
and under the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under
the circumstances, the challenged action ‘might be considered
sound trial strategy.’”
Id. (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)). As a general matter,
we “will not second-guess the strategic or tactical decisions made at trial by
defense counsel.” United States v. Anderson,
55 M.J. 198, 202 (C.A.A.F. 2001)
(quoting United States v. Morgan,
37 M.J. 407, 410 (C.M.A. 1993)). Where, as
here, an appellant attacks the trial strategy or tactics of the defense counsel,
the appellant must show specific defects in counsel’s performance that were
“unreasonable under prevailing professional norms.” United States v. Perez,
64
M.J. 239, 243 (C.A.A.F. 2006) (citations and quotation marks omitted).
Appellant’s trial defense counsel were proactive in their approach to Appel-
lant’s sentencing case and demonstrated zeal on his behalf in obtaining expert
assistance for sentencing in a case with a PTA. In determining whether to offer
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United States v. Sims, No. ACM 39209
the expert’s testimony and report, trial defense counsel considered the serious
nature of the offenses, the particularly aggravating circumstances of the of-
fenses, and their belief about what might justify a lower sentence. Trial defense
counsel believed the military judge deciding Appellant’s case would consider a
specific Defense sentence recommendation and supporting rationale more fa-
vorably than a general argument against lengthy confinement. While the De-
fense expert testified to Appellant’s “horrific high level of risk” to re-offend at
the time of trial, he also offered that with treatment and time the risk could
drop “very close to zero” in 11 years when Appellant turned 40.
Appellant argues that Appellant’s potential for long-term rehabilitation
could have been presented through “less risky alternatives” than the Defense
expert’s testimony and report. For instance, the expert could have simply tes-
tified about general principles of recidivism without providing an opinion about
Appellant’s risk and exposing “aggravating privileged information.” The trial
defense counsel, however, assessed the information specific to Appellant as less
aggravating than what one might infer about Appellant based on the circum-
stances of his offenses and decided to present the full picture of Appellant,
which contained negative as well as positive aspects. This candid approach de-
liberately chosen by the trial defense counsel included subjecting the expert to
cross-examination wherein he agreed that Appellant’s suicide attempt during
the assaults of his wife could be both an act of contrition or self-punishment
and a means to control his wife and prevent her from reporting his crimes.
Recognizing Appellant faced the real probability of decades in confinement,
trial defense counsel made a tactical decision. Appellant’s best and most cred-
ible chance to lessen the sentence was to offer the expert testimony and report
with a specific and favorable opinion on rehabilitation tailored to Appellant
and based on a professional evaluation of Appellant. Trial defense counsel then
used the expert testimony to buttress a specific confinement recommendation
of 21 years. We will not second-guess trial defense counsel’s deliberate and
reasonable strategy to lessen Appellant’s adjudged sentence to confinement.
Accordingly, we find Appellant’s trial defense counsel were not ineffective.
III. CONCLUSION
The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
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Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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