Filed: Mar. 04, 2005
Latest Update: Feb. 12, 2020
Summary: j. Defense counsel effected this strategy through, LCDR Daviss unsworn statement, LCDR Tinkers, sentencing argument, and the defenses tailored, sentencing instruction on the effect of a dismissal.whether Davis would be eligible to seek TERA retirement.counsels actions.trial or sentencing strategy.
IN THE CASE OF
UNITED STATES, Appellee
v.
Charles W. DAVIS, Lieutenant Commander
U.S. Navy, Appellant
No. 98-0497
Crim. App. No. 9600585
United States Court of Appeals for the Armed Forces
Argued November 9, 2004
Decided March 4, 2005
ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, C.J., CRAWFORD, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain Richard A. Viczorek, USMC (argued);
Lieutenant Travis J. Owens, JAGC, USNR (on brief).
For Appellee: Lieutenant Craig Poulson, JAGC, USN (argued);
Lieutenant Colonel William K. Lietzau, USMC, and Lieutenant
Commander Monique A.S. Allen, JAGC, USNR (on brief); Colonel
M.E. Finnie, USMC, Commander Charles N. Purnell, JAGC, USN, and
Lieutenant Frank L. Gatto, JAGC, USNR.
Military Judge: Charles R. Hunt
This opinion is subject to editorial correction before final publication.
Judge ERDMANN delivered the opinion of the Court.
Lieutenant Commander (LCDR) Davis was tried at a general
court-martial with members on charges resulting from the sexual
abuse of his stepdaughter, whom he adopted, over a seven-year
period. After mixed pleas, he was found guilty of rape of a
child, rape, forcible sodomy upon a child, forcible sodomy,
indecent liberties with a child, and indecent liberties, in
violation of Articles 120, 125, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, and 934 (2000),
respectively. He was sentenced to confinement for life and
forfeiture of $2,500.00 pay per month for 24 months. The
convening authority approved the sentence, but suspended
execution of the forfeitures on the condition that Davis
maintain an allotment of all disposable pay and allowances to
his wife. The Navy-Marine Corps Court of Criminal Appeals
affirmed the findings and sentence on December 30, 1997. United
States v. Davis, 47 M.J. 707 (N-M. Ct. Crim. App. 1997).
In his initial appeal to this court, Davis claimed that he
received ineffective assistance of counsel regarding the
sentencing strategy employed at his trial. We found that the
competing affidavits submitted on the issue of ineffective
assistance of counsel warranted a fact-finding hearing to
determine the nature of the legal advice provided to Davis.
United States v. Davis, 52 M.J. 201, 206-07 (C.A.A.F. 1999). We
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returned the record to the Judge Advocate General of the Navy
for a hearing pursuant to United States v. DuBay, 17 C.M.A. 147,
37 C.M.R. 411 (1967).
A DuBay hearing was held in January 2000 where the military
judge received evidence and made findings of fact. The Court of
Criminal Appeals adopted the findings of the military judge,
rejected Davis’s claims of ineffective representation, and again
affirmed the findings and sentence. United States v. Davis,
NMCM 9600585 (N-M. Ct. Crim. App. July 24, 2003).
The Sixth Amendment guarantees that a servicemember tried
by court-martial will receive competent, effective legal
representation. Davis’s sentencing strategy was designed to
avoid a punitive discharge in return for a longer period of
confinement for the express purpose of protecting retirement
benefits for his family. Because Navy regulations and policy at
the time would not have allowed Davis to retire after his
conviction, we granted review to determine whether Davis had
received competent, effective legal advice during sentencing.
BACKGROUND
Lieutenant Commander Davis was a Naval Flight Officer
assigned to the USS ENTERPRISE (CVN 65). At the time of trial
he was forty-two years old and had completed almost seventeen
years of military service. Because he had been passed over for
promotion to commander twice, Davis was eligible to apply for
voluntary retirement under the discretionary Temporary Early
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Retirement Authority (TERA).1 Prior to the commencement of
proceedings in this case, Davis had applied for retirement under
TERA rather than face involuntary separation from the Navy. He
was approved for a TERA retirement with an effective date of
December 1, 1994. Prior to this retirement date, Davis’s
misconduct was discovered and the processing of his TERA
retirement was terminated.2
During sentencing, Davis made a brief unsworn statement. He
informed the members that he had been passed over twice and that
he was eligible to retire under TERA. Under questioning from his
attorney, Davis indicated that he desired more confinement to
offset forfeitures and a dismissal so that he could “save” his
retirement and provide for his family. The Government argued for
a sentence that included forty years of confinement and a
dismissal from the Navy. Defense counsel presented the defense
sentencing strategy as follows:
He told you send him to prison, send him for as long
as you feel that it’s necessary, but protect his
family because he didn’t. The bottom line, that’s
what happened, he didn’t protect them, but you have an
opportunity to do what he didn’t. And punish him and
send him to prison for as long as you think is
necessary, add extra years if you -– to give the
family money, if you think that you need to balance
1
The Temporary Early Retirement Authority (TERA) was enacted in
§ 4403 of Pub. L. No. 102-484, 106 Stat. 2702 (1992). To
implement the program, the Navy promulgated NAVADMIN 093/95,
Temporary Early Retirement Program for Officers.
2
Paragraph 7, Subsection B, of NAVADMIN 093/95 provided: “An
officer who is under adverse disciplinary . . . action under the
[UCMJ] . . . may not apply for early retirement until the action
is resolved in favor of the member.” (Emphasis added.)
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that, but he asks you to do that, and that’s what
we’re asking today. Show some mercy for that family.
You don’t have to show mercy for him, put him in jail,
show mercy for the family because they need it right
now and you’re the only ones that can give him -– give
them that.
You have an actuarial table that I have given to you
as Defense Exhibit B, and that shows you the value of
retirement, and I think that’s probably the worst
thing in his case is he actually was retirement-
eligible. His family would have been taken care of
financially and medically, but they’re not, but he’s
still eligible for that. . . . Please consider not
dismissing Lieutenant Commander Davis from the Navy.
Arrangements can be made for his retirement to go to
the family. He won’t get a dime, he’s going to be in
prison. What’s he going to do with money? They will
get medical benefits, they will get money, if he
survives they can try to rebuild their lives, and we
ask you to consider that and consider that family.
At the request of the defense, a sentencing instruction was
given informing the members that “[a] dismissal deprives one of
all retirement benefits[.]” As noted, Davis was sentenced to
confinement for life and forfeiture of $2,500 pay per month for
twenty-four months, but no dismissal.
In a post-trial request for clemency, Davis’s defense
counsel asked the convening authority to suspend the adjudged
forfeitures so that Davis’s family would have the means to
subsist. This clemency request stated, in part:
A less immediate, but no less important reason to
suspend the forfeiture of pay is that the feasibility
of LCDR Davis receiving retirement pay is nonexistent.
The members did not award a dismissal in this case to
ensure that the family had access to financial and
medical resources that they are desperately in need
of. I researched the issue as to whether or not LCDR
Davis would be allowed to retire and was dismayed to
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find that the system was not going to allow retirement
despite the court-martial members[’] wishes.
His defense counsel further explained that she had been
informed that Davis would be required to show cause why he
should not be eliminated from the Navy. She explained that even
if Davis were recommended for retention after the show cause
board, he would not be allowed to retire voluntarily under TERA.
Eligibility for TERA retirement required that an adverse action
be “resolved in favor of the member.” Even though Davis was not
dismissed at his court-martial, “the fact that LCDR Davis was in
jail [the disciplinary action against him] was considered to not
be resolved in his favor[.]” The convening authority approved
the sentence but suspended the adjudged forfeitures contingent
upon Davis providing “all disposable pay and allowances” to his
family.
A show cause proceeding was initiated almost a year later
to determine whether Davis should be separated from the Navy.
The board recommended that Davis be separated from the Navy with
an “other than honorable” discharge. The recommendation was
accepted and in April 1997 Davis was discharged with a
separation code denoting “misconduct, commission of a serious
offense.”
At the DuBay hearing held in January 2000, Davis and his
two military defense counsel testified about the advice Davis
had been given regarding his eligibility for retirement as it
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related to the defense sentencing strategy. The military
judge’s findings of fact reflect that defense counsel informed
Davis that while obtaining a TERA retirement would be difficult,
it would be possible:
e. . . . Both counsel advised him that, even if he was
not dismissed as a result of the court-martial, he
would unquestionably have to go through the
administrative discharge process. Counsel believed
that, armed with a member’s [sic] sentence of no
dismissal, they could credibly argue for a favorable
result at a [Board of Inquiry]. A favorable result
would be not to receive an other than honorable
discharge. Such a result would raise the issue of
TERA eligibility. . . . At that point, the worst case
for LCDR Davis, that is if BUPERS [Bureau of Naval
Personnel] found LCDR Davis ineligible for TERA, would
still entitle him to severance pay and the limited
attendant military benefits. All of these
consequences were communicated to LCDR Davis.
. . . .
i. After the member’s [sic] clear rejection of LCDR
Davis’s credibility and his resulting conviction, the
defense counsel believed that arguing for more
confinement in lieu of a dismissal was their only
effective extenuation and mitigation strategy. . . .
A sentence to no dismissal would preserve the
possibility of maintaining an income stream for the
family, as well as medical benefits. . . .
j. Defense counsel effected this strategy through
LCDR Davis’s unsworn statement, LCDR Tinker’s
sentencing argument, and the defense’s tailored
sentencing instruction on the effect of a dismissal.
Because of their awareness of the limitations of
bringing up collateral consequences of a conviction
during pre-sentencing, defense counsel presented their
strategy to the members in an unequivocal manner: he
was retirement eligible under TERA, his family needed
his retirement benefits, do not sentence him to a
dismissal. As a result, the reality, which included
the uncertainties of the administrative discharge
process and the eligibility for TERA, was not brought
to the attention of the members.
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Despite framing a sentencing strategy centered on the
possibility of TERA retirement, it was not until about a month
after trial that defense counsel learned telephonically that the
Bureau of Navy Personnel (BUPERS) “did not intend to allow LCDR
Davis to retire under TERA.” Specifically, defense counsel was
informed during that phone conversation that no TERA retirement
would be considered unless pending disciplinary action was
“resolved in favor of the member” by acquittal.
DISCUSSION
Ineffective Assistance of Counsel
The Sixth Amendment right to effective assistance of
counsel at trials by court-martial is a fundamental right of
servicemembers. United States v. Knight, 53 M.J. 340, 342
(C.A.A.F. 2000)(citing United States v. Palenius,
2 M.J. 86
(C.M.A. 1977)). In reviewing claims that counsel rendered
ineffective representation we apply the two-pronged test for
ineffective assistance of counsel set forth by the United States
Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984).
The burden on each prong rests with the appellant challenging
his counsel’s performance.
First, an appellant must show that counsel’s performance
fell below an objective standard of reasonableness -– that
counsel was not functioning as counsel within the meaning of the
Sixth Amendment. United States v. Terlep, 57 M.J. 344, 349
8
(C.A.A.F. 2002). Our review of counsel’s performance is highly
deferential and is buttressed by a strong presumption that
counsel provided adequate professional service. United States
v. Garcia, 59 M.J. 447 (C.A.A.F. 2004). Thus, an appellant's
burden is especially heavy on this deficiency prong of the
Strickland test. United States v. Adams,
59 M.J. 367 (C.A.A.F.
2004). An appellant must establish a factual foundation for a
claim of ineffectiveness; second-guessing, sweeping
generalizations, and hindsight will not suffice. See United
States v. Key,
57 M.J. 246, 249 (C.A.A.F. 2002); United States
v. Alves,
53 M.J. 286, 289 (C.A.A.F. 2000); United States v.
Gray,
51 M.J. 1, 19 (C.A.A.F. 1999). The presumption of
competence is rebutted by a showing of specific errors made by
defense counsel that were unreasonable under prevailing
professional norms. United States v. McConnell,
55 M.J. 479,
482 (C.A.A.F. 2001).
The second prong of an appellant's burden requires a
showing of prejudice flowing from counsel’s deficient
performance. The appellant must demonstrate such prejudice as
to indicate a denial of a fair trial or a trial whose result is
unreliable. United States v. Dewrell, 55 M.J. 131, 133
(C.A.A.F. 2001). The appropriate test for prejudice under
Strickland is whether there is a reasonable probability that,
but for counsel’s error, there would have been a different
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result. United States v. Quick, 59 M.J. 383, 387 (C.A.A.F.
2004).
Ineffective assistance of counsel involves a mixed question
of law and fact. United States v. Anderson, 55 M.J. 198, 201
(C.A.A.F. 2001). Factual findings are reviewed under a clearly
erroneous standard. But the ultimate determinations of whether
an appellant received ineffective assistance of counsel and
whether the error was prejudicial are reviewed de novo. Id.;
United States v. Cain,
59 M.J. 285, 294 (C.A.A.F. 2004); United
States v. McClain,
50 M.J. 483, 487 (C.A.A.F. 1999).
The Sentencing Strategy
The entire defense sentencing strategy was to preserve an
opportunity for Davis to retire under TERA and thereby provide
support and benefits for his family. The Government argues that
retirement eligibility under TERA is a collateral matter not
subject to the Strickland analysis for ineffective assistance of
counsel. We disagree. While retirement eligibility may well be
a collateral matter in a different case, it is not so here. The
potential for a TERA retirement and defense counsel’s advice in
that regard formed the theme and foundation for the defense
sentencing strategy. Davis relied on this advice when he asked
for increased confinement in lieu of a dismissal from the Navy.
Under these particular facts, we reject any suggestion that the
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cornerstone of the defense sentencing strategy was merely a
collateral matter.
While Davis’s counsel advised him that it would be an
uphill struggle to achieve a TERA retirement, they held out the
hope that if he did not receive a dismissal, retirement under
TERA, while uncertain, was a possibility. Although a critical
component of the defense sentencing philosophy was based on this
possibility, Davis’s defense counsel failed to determine the
meaning and effect of the eligibility language in TERA that an
officer charged with a UCMJ offense may not “apply for early
retirement until the action is resolved in favor of the member.”
Prior to trial, defense counsel did not thoroughly research this
critical point of eligibility or even call BUPERS to determine
whether Davis would be eligible to seek TERA retirement. In
fact, BUPERS policy was that an individual with a felony
conviction was disqualified from a TERA retirement.3
Turning to the question of whether Davis has met his burden
under the first prong of Strickland, we have created a three-
part test for determining whether the presumption of competence
has been overcome:
3
The government argued that Davis could have been eligible for a
TERA retirement through a waiver from the Secretary of the Navy
and therefore the defense strategy was sound. This merely
underscores the fact that under the eligibility criteria at the
time, Davis was not eligible for a TERA retirement. We need not
speculate whether the Secretary of the Navy would have waived
the eligibility criteria under these circumstances.
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1. We ask first whether the Appellant's allegations are true
and, if so, whether there is a reasonable explanation for
counsel’s actions.
2. Next, if the allegations are true, we review whether
defense counsel’s level of advocacy fell measurably below
the performance standards ordinarily expected of fallible
lawyers.
3. Finally, if we find that defense counsel was ineffective,
we test for prejudice and determine whether there is a
reasonable probability that, absent the error, there
would have been a different result.
United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004);
United States v. Grigoruk,
52 M.J. 312, 315 (C.A.A.F. 2000).
In determining whether Davis’s allegations are true, we are
mindful that we will not reject findings of fact unless they are
unsupported in the record. In light of the record, we agree
with the determination of the Court of Criminal Appeals that
Davis was not credible when he asserted “that he believed, based
on the advice from his lawyers, that his TERA retirement
benefits would automatically result if the court-martial did not
adjudge a dismissal.”
Nonetheless, a critical portion of Davis’s allegations is
confirmed in this record. The military judge found that both
defense counsel believed that Davis understood their advice that
there was a chance, although remote, that he could retain
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retirement benefits. Davis understood this advice and approved
the strategy. Even though counsel advised Davis that it would
be a difficult path to retirement, that advice obviously held
out the hope that retirement was possible. Therefore, that
portion of Davis’s allegations is true -- he was led to believe
there was a chance that somewhere down the road, after his
conviction, he could be retired under TERA. A single phone
call, made by defense counsel a month after trial, revealed the
fallacy of this belief and counsel’s subsequent advice.
We find no reasonable strategic or tactical reason for the
flawed advice. The flaw is a direct result of not investigating
the meaning and effect of eligibility language in the TERA
regulation as it applied to a member facing adverse action.
Davis pleaded guilty to very serious offenses. Regardless of
the outcome on the contested offenses, he would stand convicted
of felony offenses based on his pleas alone. It strains reason
to conclude that such a result -– a general court-martial
conviction involving child sexual-abuse offenses that resulted
in confinement for life -– might somehow be considered a
resolution “favorable” to the member.
Assuming that the application and administration of TERA in
the Navy is as confusing as the Government claims, that fact
itself provides greater incentive for counsel to investigate and
research the area thoroughly before formulating an entire
sentencing strategy and advising a client to pursue that course.
13
Yet counsel did not know that under the Navy rules and policy at
the time, TERA was not an option in this case. Consequently,
they could not and did not correctly advise Davis. Counsels’
sentencing strategy was fundamentally flawed from its inception
because of a failure to research the critical law and
regulations. Davis was misadvised and there is no reasonable
explanation for counsels’ failure to conduct proper research.
We next must determine whether counsels’ performance fell
below that ordinarily expected of fallible lawyers. We find
that it did. Familiarity with the facts and applicable law are
fundamental responsibilities of defense counsel. See Wiggins v.
Smith, 539 U.S. 510, 521 (2003); Strickland v.
Washington, 466
U.S. at 690-91 (“[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation.”). A reasonable attorney acting
on behalf of a client would have researched the meaning and
effect of TERA’s conditional language prior to embarking on a
trial or sentencing strategy. The failure to investigate this
critical component of the defense sentencing strategy precluded
counsel from exercising informed judgment and fully informing
Davis of the possible consequences of the strategy. Advising
Davis and formulating a sentencing strategy based upon what
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counsel considered confusing eligibility criteria for TERA was
risky; not determining the actual meaning of those eligibility
criteria was unreasonable. We find that counsels’ performance
was ineffective.
We must next test for prejudice and determine whether there
is a reasonable probability that, absent the error, there would
have been a different result. Had Davis and his counsel known
that there was no possibility of a TERA retirement except for a
Secretarial waiver, there would have been little incentive for
Davis to ask for increased confinement to offset a possible
punitive dismissal. Following counsel’s argument that the
members should maximize Davis’s period of confinement to
preserve the possibility of his retirement, the members did just
that. They adjudged the maximum period of confinement
available. If that possibility had not been presented to the
members, with the Government arguing for a sentence of forty
years of confinement and a dismissal, there is a reasonable
probability that there would have been a different result.
Davis was therefore prejudiced by the faulty advice and strategy
of his trial defense counsel.
DECISION
The decision of the Navy-Marine Corps Court of Criminal
Appeals is affirmed as to the findings, but is reversed as to
the sentence. The sentence is set aside. The record is
15
returned to the Judge Advocate General of the Navy. A rehearing
on the sentence is authorized.
16
