United States v. Roach , 2008 CAAF LEXIS 809 ( 2008 )

UNITED STATES, Appellee
v.
Charles S. ROACH, Senior Airman
United States Air Force, Appellant
No. 07-0870
Crim. App. No. S31143
United States Court of Appeals for the Armed Forces
Argued May 6, 2008
Decided June 26, 2008
EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined. STUCKY, J., filed a separate
dissenting opinion, in which RYAN, J., joined.
Counsel
For Appellant: Dwight H. Sullivan, Esq. (argued); Colonel Nikki
A. Hall and Major Shannon A. Bennett (on brief).
For Appellee: Colonel Gerald R. Bruce (argued); Major Matthew
S. Ward and Captain Ryan N. Hoback (on brief); Captain Jefferson
E. McBride.
Military Judge: Jennifer Whittier
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Roach, No. 07-0870/AF
Chief Judge EFFRON delivered the opinion of the Court.
A special court-martial composed of a military judge sitting
alone convicted Appellant, pursuant to his pleas, of willful
dereliction of duty and the use of cocaine, in violation of
Articles 92 and 112a, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 892, 912a (2000). The sentence adjudged by the
court-martial included a bad-conduct discharge, confinement for
four months, and reduction to the lowest enlisted grade. The
convening authority, pursuant to a pretrial agreement, approved
that portion of the sentence that provided for a bad-conduct
discharge, confinement for three months, and reduction to the
lowest enlisted grade.
The case was transmitted to the United States Air Force
Court of Criminal Appeals for mandatory review under Article 66,
UCMJ, 10 U.S.C. § 866 (2000), with a submission by defense
counsel due on November 14, 2006. At appellate defense
counsel’s request, the court granted three enlargements of time.
On March 14, 2007, the court denied appellate defense counsel’s
request for a fourth enlargement. On August 23, 2007, appellate
defense counsel submitted a motion to reconsider that denial and
provide an additional sixty days to submit a brief on
Appellant’s behalf. The court denied the motion on August 30,
2007. See United States v. Roach, No. ACM S31143 2007 CCA LEXIS
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United States v. Roach, No. 07-0870/AF
402, at *2, 2007 WL 2790660, at *1 (A.F. Ct. Crim. App. Sept.
13, 2007) (per curiam) (unpublished).
On September 13, 2007, the Court of Criminal Appeals issued
a decision affirming the findings and sentence as approved by
the convening authority. Id. at *9, 2007 WL 2790660, at *3-*4.
On Appellant’s petition, we granted review in light of United
States v. May, 47 M.J. 478 (C.A.A.F. 1998) (regarding
proceedings in the Courts of Criminal Appeals when appellate
defense counsel had not provided a submission on the merits of
the case).1 For the reasons set forth below, we set aside the
decision of the Air Force Court of Criminal Appeals and remand
this case for further consideration.
1
We granted review of the following issues:
I. WHETHER THE LOWER COURT ERRED BY DECIDING APPELLANT’S
CASE IN THE ABSENCE OF A SUBSTANTIVE SUBMISSION ON
APPELLANT’S BEHALF DESPITE THIS COURT’S CASE LAW
HOLDING THAT IT IS “ERROR” FOR A COURT OF CRIMINAL
APPEALS TO DECIDE A “CASE WITHOUT ASSISTANCE OF
COUNSEL” FOR AN APPELLANT. United States v. May, 47
M.J. 478, 482 (C.A.A.F. 1998).
II. WHETHER THE LOWER COURT ERRED BY HOLDING: (1) THAT IT
WAS NOT OBJECTIVELY UNREASONABLE FOR THE APPELLATE
DEFENSE COUNSEL TO FAIL TO FILE A BRIEF ON APPELLANT’S
BEHALF DURING THE 182 DAYS BETWEEN THE EXPIRATION OF
APPELLANT’S BRIEFING DEADLINE AND THE LOWER COURT’S
DECISION IN APPELLANT’S CASE; AND (2) THAT APPELLANT
DEMONSTRATED NO PREJUDICE, DESPITE THIS COURT’S CASE
LAW HOLDING THAT WHERE APPELLATE COUNSEL “DO NOTHING”
ON AN APPELLANT’S BEHALF, THE “APPELLANT HAS BEEN
EFFECTIVELY DEPRIVED OF COUNSEL, AND PREJUDICE IS
PRESUMED.” United States v. May, 47 M.J. 478, 482
(C.A.A.F. 1998).
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I. MILITARY APPELLATE REVIEW AT THE COURT OF CRIMINAL APPEALS
A. UNIQUE RESPONSIBILITIES UNDER ARTICLES 66 AND 70
Although the military justice system incorporates civilian
criminal law practices in important respects, see, e.g., Article
36, UCMJ, 10 U.S.C. § 836 (2000), Congress in the UCMJ has
preserved many of the historic aspects of military law.
Appellate review in the Courts of Criminal Appeals, for example,
embodies the traditional affirmative responsibility of military
reviewing authorities to conduct mandatory, de novo review of
court-martial proceedings. See Daniel T. Ghent, Military
Appellate Processes, 10 Am. Crim. L. Rev. 125, 125 (1971)
(comparing appellate procedures among military and civilian
courts); Delmar Karlen, Civilian and Military Justice at the
Appellate Level, 3 Wis. L. Rev. 786, 787 (1968) (same); William
F. Fratcher, Appellate Review in American Military Law, 14 Mo.
L. Rev. 15, 59-64 (1949) (describing appellate review in the
military justice system prior to enactment of the UCMJ).
In the Article III courts, the responsibility in a criminal
case for initiating a timely appeal, paying costs and fees,
obtaining a transcript, and retaining counsel rests with the
party seeking review. See, e.g., Fed. R. App. P. 3, 4(b), 10,
11. Provision of counsel on appeal at government expense and
waiver of costs and fees occur only in the case of an indigent
party. See 18 U.S.C. § 3006A(b), (d)(7) (2000); 3 Wayne R.
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LaFave et al., Criminal Procedure §§ 11.1(a), 11.2(b) (3d ed.
2007). The courts of appeals on direct review focus on issues
of law, with the burden generally on the appellant to
demonstrate prejudicial error. See, e.g., Fed. R. Crim. P. 52;
18 U.S.C. § 3742 (2000).
Proceedings in the Courts of Criminal Appeals differ from
civilian appeals in three significant respects. First, review
is mandatory. The Judge Advocate General must submit each case
of the type at issue in the present appeal to the court unless
the accused affirmatively waives the appeal. See Article 66(b),
UCMJ.
Second, the Judge Advocate General must provide government-
furnished appellate counsel to the accused, regardless of
indigence, on request of the accused, or when the government is
represented on appeal by counsel. See Article 70, UCMJ. The
report accompanying enactment of Article 70, UCMJ, observed that
such representation would “assure that the accused’s case will
be thoroughly considered.” H.R. Rep. No. 81-491, at 33 (1949),
as reprinted in 1950 U.S.C.C.A.N. 2220, 2256.
Third, the scope of review by the Courts of Criminal
Appeals differs in significant respect from direct review in the
civilian federal appellate courts. See United States v. Crider,
22 C.M.A. 108, 110-11, 46 C.M.R. 108, 110-11 (1973). In
addition to reviewing the case for legal error in a manner
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similar to other appellate courts, see Article 59(a), UCMJ, 10
U.S.C. § 859(a) (2000), Congress has provided the Courts of
Criminal Appeals with “plenary, de novo power of review” and the
ability to “‘determine[], on the basis of the [entire] record’
which findings and sentence should be approved.” United States
v. Cole, 31 M.J. 270, 272 (C.M.A. 1990) (citation omitted). In
that regard, the court conducts a de novo review under Article
66(c) of the facts as part of its responsibility to make an
affirmative determination as to whether the evidence provides
proof of the appellant’s guilt of each offense beyond a
reasonable doubt. United States v. Turner, 25 M.J. 324, 324-25
(C.M.A. 1987). The court also conducts a de novo review of the
sentence under Article 66(c) as part of its responsibility to
make an affirmative determination as to sentence
appropriateness. See United States v. Baier, 60 M.J. 382, 384-
85 (C.A.A.F. 2005) (discussing the requirement that the Courts
of Criminal Appeals independently determine the sentence
appropriateness of each case they affirm). The reports
accompanying the enactment of the UCMJ identified the unique
powers established under Article 66 as responding to significant
deficiencies in the operation of the military justice system
during World War II, particularly with respect to sentence
disparities. See H.R. Rep. No. 81-491, at 31-32 (1949), as
reprinted in 1950 U.S.C.C.A.N. 2220, 2253-54; see also Fratcher,
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14 Mo. L. Rev. at 55-56, 59-60 (describing concerns growing out
of the World War II experience).
B. THE RELATIONSHIP BETWEEN THE APPELLATE REVIEW UNDER ARTICLE
66 AND APPELLATE REPRESENTATION UNDER ARTICLE 70
Two cases illustrate the responsibilities of the Courts of
Criminal Appeals when presented with a case in which defense
counsel have not submitted a filing on the merits of the appeal.
In United States v. Bell, 11 C.M.A. 306, 309, 29 C.M.R. 122, 125
(1960), the relationship between the appellant and his two
detailed military defense counsel deteriorated to the point
where the appellant asked the Board of Review (as the Courts of
Criminal Appeals were then denominated) to appoint new counsel,
and counsel asked the Board for permission to withdraw. Before
acting, the Board asked the Office of the Judge Advocate General
whether other counsel would be appointed to replace the assigned
counsel. Id. at 309, 29 C.M.R. at 125. When the Board was
informed that no other counsel would be appointed, the Board
“relieved the officers of the assignment and, without timely
notice to the accused, proceeded to hear and decide the matter.”
Id.
The opinion in Bell noted that the responsibility for
appointing appellate counsel rested with the Judge Advocate
General under Article 70, UCMJ, but that the authority to
control the case rested with the court. Id. at 309-10, 29
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C.M.R. at 125-26. The opinion recognized that if an accused
“becomes unreasonable in his demands, he may forfeit his right
to any assistance,” but that the Board of Review had not reached
any conclusion in that regard. Id. at 309, 29 C.M.R. at 125.
The opinion also emphasized that the Board had a number of
options in the event of disagreement between counsel and client,
including: (1) direction for both client and counsel to
separately file their assignments of error; and (2) a
requirement for the Judge Advocate General to appoint substitute
counsel as a predicate to further appellate proceedings. Id. at
309-10, 29 C.M.R. at 125-26. If the accused unreasonably
refused to proceed with assigned or substitute counsel, the
opinion observed that the Board of Review should stay the
proceedings “for a period adequate to allow service upon the
accused of the order permitting counsel to withdraw, and giving
him sufficient time to meet the new situation.” Id. at 310, 29
C.M.R. at 126. The opinion added: “In the order releasing
counsel, there should be included a notice that different
military counsel will not be made available to accused and he
must either represent himself or obtain civilian counsel.” Id.
After noting that the Board did not explore the alternatives or
provide the appellant with appropriate notice, the opinion
concluded that the case should be returned to the Board of
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Review for further proceedings with counsel appointed to
represent the appellant. Id. at 311, 29 C.M.R. at 127.
United States v. May, 47 M.J. 478 (C.A.A.F. 1998), further
illustrates the relationship between mandatory review under
Article 66 and the requirement for the government to provide
appellate counsel under Article 70. In May, the defense
appellate team consisted of civilian counsel obtained by the
appellant at his own expense and government-furnished military
appellate counsel. Id. at 480. The civilian counsel, who
served as lead counsel, undertook the responsibility for
preparing a brief. Id. While awaiting civilian counsel’s
preparation of the brief, military counsel filed seven requests
for enlargement with the Court of Criminal Appeals, which were
granted. In the course of granting an eighth request for
enlargement, the Court of Criminal Appeals ordered military
appellate defense counsel to notify civilian defense counsel
that further requests would not be favorably considered absent
extraordinary circumstances. Id. The court also ordered
military appellate defense counsel to prepare to file
assignments of error with the court by a date certain
“‘independent of any assistance or guidance by civilian
counsel.’” Id. In the meantime, further communications
involving the appellant, various military defense counsel, and
civilian defense counsel led to additional requests for
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United States v. Roach, No. 07-0870/AF
enlargement, but no filing of a substantive brief. Id. Two
months after denying a request for enlargement, the Court of
Criminal Appeals issued a decision affirming the findings and
sentence. Id. at 481.
On appeal, we considered a number of issues, including
whether the lower court acted properly under the circumstances
of the case. We made the following observations regarding the
powers of the Courts of Criminal Appeals and the role of
counsel: “Although Courts of Criminal Appeals have a broad
mandate to review the record unconstrained by an appellant’s
assignments of error, that broad mandate does not reduce the
importance of adequate representation.” Id. We also noted that
“[w]here individual civilian counsel’s failure to act is working
to the detriment of an appellant, military appellate counsel may
not stand by idly, because they remain responsible for
protecting the interests of their client.” Id. We added: “As
officers of the court as well as appellate defense counsel,
military counsel had an obligation to comply with court orders
and protect the interests of their client.” Id. at 482. In
that regard, we observed that military appellate counsel could
have pursued a number of options to fulfill their obligations to
the court and their client in the event that civilian counsel
did not make a timely filing. Id. Each of these options would
have provided the court with a filing on the merits, including
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the appellant’s views, the position of military appellate
defense counsel, and pertinent explanatory material regarding
the posture of the case. Id.In addition to describing the failure of military defense
counsel to take appropriate action, we noted: “Inexplicably,
the court below did nothing to enforce its order” that military
defense counsel file an assignment of merits by a date certain.
Id. In that context, we concluded that the Court of Criminal
Appeals erred in deciding the case “without assistance of
counsel” and “that appellant has been denied the assistance of
counsel guaranteed by Article 70 and the plenary review
contemplated by Article 66.” Id. We remanded the case to the
Court of Criminal Appeals “for plenary review, with assistance
of counsel under Article 70, UCMJ.” Id. at 483.
II. APPELLATE CONSIDERATION
A. PROCEEDINGS BEFORE THE COURT OF CRIMINAL APPEALS
The convening authority took action in this case on August
7, 2006. After the case was transmitted to the Court of
Criminal Appeals for mandatory review, pursuant to Appellant’s
request for representation made on the day of his trial, Captain
(Capt) D was appointed to represent Appellant as military
appellate defense counsel.
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1. The first two requests for enlargement
On November 14, 2006, appellate defense counsel filed a
motion for a first enlargement of time, which the lower court
granted, establishing a January 13, 2007, filing deadline. On
January 16, 2007, appellate defense counsel filed a motion for a
second enlargement of time until February 15, 2007, accompanied
by a further motion to submit the enlargement request out of
time. The lower court granted the second enlargement on January
17, 2007.
2. The third request for an enlargement, accompanied by an
alternative request for specified sentence relief
On February 15, 2007, appellate defense counsel filed a
motion for a third enlargement. The motion was signed by both
Capt D as “Appellate Defense Counsel” and Lieutenant Colonel (Lt
Col) S as “Chief Appellate Defense Counsel.” The third
submission requested an enlargement of 120 days until June 15,
2007. To justify an enlargement beyond the thirty-day period
provided under Rule 24.1(b) of the court’s rules, the motion
stated that counsel “will likely not be able to complete a
competent review of Appellant’s case within the next thirty
days.” The motion cited the “demands of previously docketed
cases in the Court of Appeals for the Armed Forces and this
Honorable Court [as] preclud[ing] earlier consideration of
Appellant’s case.”
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Under the heading “The steps counsel will take to ensure
that their brief is filed on or before the date requested,” the
motion stated that counsel “presently has over 20 cases pending
initial assignments of error before this Honorable Court that
were initially docketed before Appellant’s.” The motion
promised that counsel “will make every diligent effort to ensure
that Appellant’s brief is filed on or before the date
requested.” In that regard, the motion stated that such efforts
would include “completing a review of the record of trial,
conducting research, and accomplishing any investigation
required to resolve a meritorious issue.”
The motion also indicated that further requests for
enlargement might be forthcoming “given counsel’s current
workload, and that of the entire division.” In addition, the
defense requested alternative relief in the form of the options
described in United States v. Moreno, 63 M.J. 129, 143 (C.A.A.F.
2006), if the court viewed an enlargement as involving
unreasonable delay.
In response to the motion, the Court of Criminal Appeals
issued an order on March 2, 2007, providing a limited extension
until March 15, with specific requirements. As a predicate for
its action, the court observed:
The sole basis for the delay requested by the
appellant’s counsel appears to be the fact that
counsel has other cases pending on his docket
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United States v. Roach, No. 07-0870/AF
that were received prior to the appellant’s case.
Counsel has not, however, related any information
concerning these other cases that would justify
further delay in this case.
After noting that counsel had declined to advise the court
as to the views of Appellant on the request for enlargement, the
order stated:
The Court is unable to determine, on the record
before us, that the appellant has been apprised
of the status of his case or that he desires any
additional time for the filing of his brief.
Further, we are unconvinced that the appellant’s
interests are served by permitting this case to
languish while others are processed.
In the course of granting a limited enlargement of time to
March 15, the court emphasized that any further requests for
time must contain all information required by the court’s rules.
See A.F. Ct. Crim. App. R. 24.1(b)(2)-(3).
3. The fourth request for an enlargement, accompanied by an
alternative request for specified sentence relief
On March 12, 2007, appellate defense counsel filed a motion
for a fourth enlargement of time for a period ending May 14,
2007. As with the prior defense filing, the motion was signed
by both Capt D as “Appellate Defense Counsel” and Lt Col S as
“Chief Appellate Defense Counsel.” The motion noted that
counsel had responsibility for over ten cases filed prior to
Appellant’s case. In all other pertinent respects, the motion
repeated verbatim the matter previously offered by counsel for
the third enlargement: that counsel would not likely complete
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review within the next thirty days, that counsel would take
action to complete the case, and that counsel’s workload and the
workload of the division might require a further extension. In
addition, counsel requested relief under Moreno if the court
viewed the request for enlargement as involving an unreasonable
delay. The motion did not respond to the court’s observation,
in its March 2 order, that counsel had failed to offer an
adequate justification for an enlargement. On March 14, 2007,
the court denied Appellant’s motion for an enlargement.
4. Appellant’s motion to reconsider the order denying the
fourth request for enlargement
Over the next five months, the court issued no further
orders, and the defense made no further filing. On August 23,
2007, appellate defense counsel filed a motion out of time
asking the court to reconsider its March 14, 2007, order denying
the defense request for an enlargement of time to submit an
assignment of errors, and to grant an enlargement of sixty days,
lasting until October 21, 2007. As with the prior defense
filings, the motion was signed by both Capt D as “Appellate
Defense Counsel” and Lt Col S as “Chief Appellate Defense
Counsel.” The filing noted that Appellant consented to the
motion for enlargement. The filing stated that counsel was
responsible for “approximately 4 cases pending initial
assignments of error prioritized before Appellant’s.” The
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filing also stated that counsel “will likely not be able to
complete a competent review of Appellant’s case within the next
thirty days.” The filing added that the “demands of previously
docketed cases in the Court of Appeals for the Armed Forces and
this Honorable Court have precluded earlier consideration of
Appellant’s case.” The filing further noted that the “case
potentially contains several issues.” In that regard, the
filing stated: “Specifically, Appellant believes that his
counsel may have been ineffective during the post-trial stages
of the case, and also challenges the trial counsel’s
qualifications to serve on the prosecution team.”
The Air Force Court of Criminal Appeals denied Appellant’s
motion on August 30, 2007. In the order denying the motion, the
court summarized the history of the case and stated: “[T]he
facts remain the same. The record is 81 pages in length and the
case involves a two specification guilty plea in a Military
Judge alone case.” The court further noted that it had already
“begun review of this case, therefore a delay till [sic] October
is inappropriate.” The court added that if appellate defense
counsel filed a brief prior to its action, it would be
considered.
B. THE DECISION OF THE COURT OF CRIMINAL APPEALS
On September 13, 2007, the Air Force Court of Criminal
Appeals issued an opinion affirming the findings and sentence.
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Roach, 2007 CCA LEXIS 402, at *9, 2007 WL 2790660, at *3-*4.
The court stated that “[l]engthy delays in reaching final
resolution on adjudged punitive discharges in straightforward
cases such as this case do not serve either the interests of the
accused or the interests of the Air Force. Therefore this Court
is taking action sans a brief [sic] appellate counsel.” Id. at
*3, 2007 WL 2790660, at *1 The court explained that after
denying appellate defense counsel’s request for a fourth
enlargement of time on March 14, 2007, the court “completed its
review in the normal course of appellate review based upon the
Court’s workload and the Rules of Practice and Procedure.” Id.
at *2, 2007 WL 2790660, at *1.
The court stated that it could not discern whether the
failure of appellate defense counsel to file a brief was due to
“deficiency of counsel, a strategy to create an issue, or a
delay tactic for the benefit of their client.” Id. at *7-*8,
2007 WL 2790660, at *3. The court concluded that the interplay
between Article 66, UCMJ, and the court’s own rules of practice
and procedure meant that if defense counsel did not file a
brief, the court could presume the case was submitted on the
merits. Id. at *7, 2007 WL 2790660, at *3.
The court conducted its own review of the record of trial
and discussed two issues in Appellant’s case. First, with
respect to the failure of the assistant trial counsel to take
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the oath required by Article 42, UCMJ, 10 U.S.C. § 842 (2000),
the court concluded that the error was not jurisdictional, nor
did it materially affect the substantial rights of the accused.
Id. at *4-*6, 2007 WL 2790660, at *2. The court also rejected
Appellant’s argument that trial defense counsel erred in failing
to raise this technical issue in Appellant’s clemency petition.
Id. at *6, 2007 WL 2790660, at *2.
Second, the court discussed whether appellate defense
counsel’s failure to file a timely brief constituted ineffective
assistance of counsel. Id. at *6-*8, 2007 WL 2790660, at *3.
The court explained that it considered the case submitted on the
merits despite counsel’s failure to submit a brief, and
concluded that submitting the case on its merits did not fall
“‘below an objective standard of reasonableness’” under
Strickland v. Washington, 466 U.S. 668, 688 (1984). Id. The
court further held that even if counsel’s performance was
deficient in not filing a brief, the error was not prejudicial
because Appellant still received the benefit of the appellate
process. Id. at *8, 2007 WL 2790660, at *3 (citing Roe v.
Flores-Ortega, 528 U.S. 470, 484 (2000)). The court noted that
because it had conducted an Article 66, UCMJ, review and found
no errors, Appellant was not prejudiced by appellate defense
counsel’s failure to file a brief in the context of a brief
record and Appellant’s guilty plea. Id. at *6-*8, 2007 WL
18United States v. Roach, No. 07-0870/AF
2790660, at *3. Accordingly, the court approved the findings
and sentence.
C. FURTHER FILINGS REGARDING THE PROCEEDINGS BEFORE
THE COURT OF CRIMINAL APPEALS
On September 17, 2007, Appellant submitted a petition for
grant of review by this Court signed on his behalf by Capt D.
All subsequent submissions by the defense were filed by
appellate defense counsel different from the counsel who had
represented Appellant before the Court of Criminal Appeals. The
new appellate defense counsel submitted the petition supplement
on October 17, 2007. The defense petition supplement asserted
that if the defense had submitted a brief before the lower court
issued its opinion, the defense would have raised two issues:
(1) whether the military judge erred by accepting
his plea of guilty to the willfullness component
of Charge II in light of the military judge’s
failure to explain to him the potential voluntary
intoxication defense; and (2) whether the
enormous disparity between his sentence and that
of his co-actor, A1C Neff, warranted reduction of
Appellant’s sentence.
Appellant asserted that his sentence, which included a bad-
conduct discharge, was inappropriate because his alleged “co-
accused” did not receive a punitive separation. The sentence
appropriateness issue had not been raised by appellate defense
counsel in any of the submissions to the court below.
Subsequently, Appellant submitted a further issue pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), asserting
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that the convening authority erred by failing to grant
Appellant’s supplemental clemency request seeking release from
confinement following his wife’s miscarriage. United States v.
Roach, 66 M.J. 109, 110 (C.A.A.F. 2008) (granting motion).
The defense subsequently filed affidavits from both of the
counsel who had represented Appellant before the Court of
Criminal Appeals. Roach, 66 M.J. at 110 (granting defense
motion to attach). Capt D stated in his affidavit: “Due to my
caseload and my prioritization of my cases, I never read the
transcript in the Roach case.” Lt Col S, who identified himself
as the person responsible for supervising and assigning counsel
within the Appellate Defense Division, stated: “I did not, and
have not now, read the record of trial.” Neither affidavit
offered any further explanation for the five-month period of
inactivity after the lower court’s order denying the request for
a fourth enlargement or for the decision not to give priority
attention to Appellant’s case in light of the orders issued by
the lower court. Neither affidavit asserted that CPT D, as
counsel, requested additional assistance to ensure a timely
filing, or that Lt Col S, as supervisory counsel, lacked
sufficient resources to provide such assistance. The defense
also subsequently filed an affidavit from Colonel M, an Air
Force Reservist, who stated that she had been given the record
to review sometime between August 20, 2007 and August 23, 2007.
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She stated that she had not read the record before she learned
that the lower court had decided the case. United States v.
Roach, 66 M.J. __ (C.A.A.F. 2008) (Apr. 24, 2008 order granting
defense motion to attach).
III. DISCUSSION
Appellant requested representation under Article 70, UCMJ,
on the day of his court-martial. Over the next year, counsel
appointed to represent him under Article 70 not only failed to
file a brief on his behalf under Article 66, they also failed to
provide the Court of Criminal Appeals with timely or informative
explanations for their inaction. Appellate defense counsel’s
filings consisted of rote comments about first-in-first-out
prioritization, reference to the number of pending cases
unaccompanied by any explanation as to the significance of those
numbers, and vague references to the workload of defense counsel
and the work of the division without any information
demonstrating that the entire Appellate Defense Division was
incapable of providing timely appellate representation.
The actions and omissions were taken at a time when
Appellant was represented by an attorney who was under the
direct supervision of the Chief Appellate Defense Counsel.
According to the affidavits filed by both counsel, neither one
read the record of trial in this case during the entire period
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that it was under consideration by the Court of Criminal
Appeals, a case involving a guilty plea in which the transcript
of the three hour trial consisted of eighty-one pages, with no
defense motions before, during, or after trial.
The decisions in Bell and May reflect our understanding
that the Courts of Criminal Appeals have broad powers to issue
orders to counsel to ensure the timely progress of cases
reviewed under Article 66. May, 47 M.J. at 481-82; Bell, 11
C.M.A. at 309, 29 C.M.R. at 125. These cases also underscore
that such actions must be taken in a manner consistent with the
requirements of Article 70, UCMJ. May, 47 M.J. at 481; Bell, 11
C.M.A. at 309-10, 29 C.M.R. at 125-26. When counsel appears to
be unresponsive, the court has a variety of actions it may take,
including: (1) holding a status conference with the parties to
inquire into the reason for the delay in filing; (2) ordering
appellate defense counsel to show cause as to why they could not
file their brief on time; (3) warning counsel that flagrant
disregard of the court’s rules for timely filing of briefs could
result in suspension or disbarment from practice before the
court; (4) asking the Judge Advocate General to direct the
assignment of additional or substitute counsel; or (5)
appointing another member of the bar to represent the appellant
on a pro bono basis. See May, 47 M.J. at 482; United States v.
22
United States v. Roach, No. 07-0870/AF
Ortiz, 24 M.J. 323, 325 (C.M.A. 1987); Bell, 11 C.M.A. at 309-
10, 29 C.M.R. at 125-26.
Such actions are particularly important when it is unclear,
as in this case, whether the failure to file a brief is a result
of (1) appellate defense counsel’s individual inability or
unwillingness to familiarize himself with the case prior to the
filing deadline, (2) appellate defense counsel’s unwillingness
to file a brief raising substantive issues, (3) staffing
shortages in the Appellate Defense Division, (4) improper
supervision of the Appellate Defense Division, or (5) a
deliberate tactical decision by appellate defense counsel not to
file the brief in order to create an appellate issue.
Irrespective of the reason for not filing a brief, however,
our cases underscore that when an appellant has requested
representation that does not appear to be forthcoming, the court
must ensure that military counsel are performing their primary
obligation “to comply with court orders and protect the
interests of [the] client.” See May, 47 M.J. at 482. Although
the Courts of Criminal Appeals have a de novo power to review
the merits of cases, they do not possess a duty of loyalty to
the client or a duty to zealously represent the interests of the
client. These duties help underpin the rigor and validity of
the adversarial process of justice. Moreover, it is in drafting
a brief that counsel will often identify issues and formulate
23
United States v. Roach, No. 07-0870/AF
arguments to bring to the court’s attention. If the court
determines that circumstances warrant proceeding without a brief
filed by appointed military appellate counsel, the court must
first provide adequate notice to the appellant so that the
appellant can determine whether to request substitute counsel
under Article 70, obtain civilian counsel at the appellant’s
expense, or waive the right to counsel and proceed pro se. See,
e.g., Bell, 11 C.M.A. at 310, 29 C.M.R. at 126. The one aspect
of this record that is clear is that the court below proceeded
to decide Appellant’s case without providing such notice. In so
doing, the lower court assumed the existence of a merits
submission and proceeded to decide the case without the
requisite notice to Appellant. Where appellate defense counsel
made multiple requests for extension of time and those filings
raised substantive issues of concern, the lower court erred in
presuming a merits submission. Cf. United States v. Adams, 59
M.J. 367, 371 (C.A.A.F. 2004) (concluding that the appellant was
not unrepresented because counsel had made the deliberate
decision to submit the case on its merits).
Although we understand the lower court’s concern about the
circumstances related to timely appellate review, there is no
indication on the record that Appellant personally bears any
responsibility for these circumstances of concern. Moreover, as
we noted in Bell, even when difficulties in the relationship
24
United States v. Roach, No. 07-0870/AF
between Article 70 counsel and an appellant may be attributable
to an appellant, the appellant must still be given a reasonable
opportunity to proceed in an alternative fashion with substitute
counsel, retained counsel, or pro se. Bell, 11 C.M.A. at 310-
11, 29 C.M.R. at 126-27.
As in Bell and May, the issue before us is not whether
Appellant was deprived of his Sixth Amendment right to the
effective assistance of counsel under Strickland, 466 U.S. 668,
but whether the court below ensured that the Government provided
Appellant with representation under Article 70. The error in
this case is that the court below proceeded to decide the case
without taking the steps required under Bell and May.
Under these circumstances, we need not resolve the
questions left unanswered by the court below as to why a brief
was not filed in this case; nor need we determine whether the
lower court’s error in failing to provide notice to Appellant
was inherently prejudicial or whether it should be tested for
specific prejudice. Cf. Flores-Ortega, 528 U.S. at 483(discussing prejudice in the context of a Sixth Amendment
ineffective assistance of counsel claim, and citing Penson v.
Ohio, 488 U.S. 75, 88-89 (1988); United States v. Cronic, 466
U.S. 648, 650 (1984); Smith v. Robbins, 528 U.S. 259, 286
(2000)).
25
United States v. Roach, No. 07-0870/AF
In remanding the case, we emphasize that the Court of
Criminal Appeals may set and enforce deadlines. If the Court of
Criminal Appeals encounters similar delays during further
proceedings, it should consider the methods identified in this
opinion to determine the nature of the problem, ensure that
Appellant understands the available options, and take
appropriate action, including requiring that the Judge Advocate
General appoint additional or substitute counsel if necessary.
In view of appellate defense counsel’s repeated reference to the
workload of the Appellate Defense Division during prior
consideration of this case at the Court of Criminal Appeals, the
Court of Criminal Appeals upon remand should ensure that
Appellant receives conflict-free counsel under Articles 66 and
70, UCMJ, during further review of this case.
IV. DECISION
The decision of the Air Force Court of Criminal Appeals is
set aside. The record of trial is returned to the Judge
Advocate General of the Air Force for remand to that court for
plenary review with assistance of counsel under Article 70,
UCMJ, 10 U.S.C. § 870 (2000). Thereafter, Article 67, UCMJ, 10
U.S.C. § 867 (2000), will apply.
26
United States v. Roach, No. 07-0870/AF
STUCKY, Judge, with whom RYAN, Judge, joins (dissenting):
Citing United States v. Bell, 11 C.M.A. 306, 29 C.M.R. 122(1960), and United States v. May, 47 M.J. 478 (C.A.A.F. 1998),
the majority asserts that the issue before the Court “is not
whether Appellant was deprived of his Sixth Amendment right to
the effective assistance of counsel under Strickland, 466 U.S.
668, but whether the court below ensured that the Government
provided Appellant with representation under Article 70.”
United States v. Roach, __ M.J. __ (25) (C.A.A.F. 2008). It
then holds that the United States Air Force Court of Criminal
Appeals (AFCCA) failed in its duty. Id.We granted review of two issues: (1) whether the AFCCA
erred by deciding Appellant’s case in the absence of a
substantive submission on Appellant’s behalf; and (2) whether
the AFCCA erred by failing to conclude that appellate defense
counsel were ineffective. Rather than answering these granted
issues, the majority frames a different issue that improperly
imposes a duty on the Courts of Criminal Appeals contrary to the
precedents of this Court and the Supreme Court. Therefore, I
dissent.
I.
On the day of trial, June 20, 2006, Appellant signed a
request for appellate defense counsel to represent him before
the AFCCA. The record of trial was received by the Air Force
United States v. Roach, No. 07-0870/AF
Appellate Defense Division on August 16, 2006, and Lieutenant
Colonel (Lt Col) S, Deputy Chief, Appellate Defense Division,
assigned the case to Captain (Capt) D. Appellate defense
counsel failed to file their brief within the ninety days
allotted, A.F. Ct. Crim. App. R. 15(b), but did request two
enlargements of time. The AFCCA granted both enlargements of
time such that the brief was required to be submitted by
February 15, 2007.
On that date, Capt D and Lt Col S moved to submit an
enlargement of time out of time, requesting an additional
enlargement of 120 days. As this was the third requested
enlargement of time and the asserted reason was other
litigation, counsel were required to disclose whether Appellant
concurred in the requested delay, A.F. Ct. Crim. App. R.
24.1b(3), and to specifically explain the number and types of
their other cases and the courts involved. A.F. Ct. Crim. App.
R. 24.1(b)(2). Capt D and Lt Col S asserted that, “absent
client consent, counsel is unable to answer this Honorable
Court’s request for an averment of prior coordination.” They
challenged the Air Force Court to either grant the request for
enlargement or grant Appellant relief from his sentence under
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), “to remedy
the denial of speedy post-trial processing.”
2
United States v. Roach, No. 07-0870/AF
The AFCCA issued an order on March 2, 2007, in which it
observed that the case had been with the Appellate Defense
Division for more than six months, the record of trial was only
eighty-one pages long and contained only seventeen exhibits, the
sole basis for the enlargement request was counsel’s other
pending cases, and counsel had neither provided the required
information concerning the other pending cases to justify the
requested enlargement of time nor indicated that Appellant
concurred in the request for enlargement. Nevertheless, the
court granted an enlargement until March 15, 2007, but ordered
counsel to provide the information missing from the requested
enlargement.
On March 12, 2007, Appellant’s counsel requested an
additional enlargement of time for sixty days, noting that this
was the fourth request for enlargement and approximately 190
days had elapsed since initial docketing of the case. He
claimed that he then had ten other cases pending, but provided
no details despite the court’s order to do so. The AFCCA denied
the motion for enlargement of time on March 14, 2007.
On August 23, 2007, more than five months later, and more
than a year after Capt D was assigned to the case, he and Lt Col
S filed a motion out of time for reconsideration of the denial
of his fourth request for enlargement and another request for
enlargement of time. They requested sixty more days to file a
3
United States v. Roach, No. 07-0870/AF
brief, stating that they could “now aver that Appellant allows
him to file requests for enlargements on his behalf.” Capt D
and Lt Col S asserted that Capt D then had approximately four
cases pending that, apparently, he and Lt Col S had determined
to be higher priority, but provided no further details. They
noted that “Appellant believes that his counsel may have been
ineffective during the post-trial stages of the case, and also
challenges the trial counsel’s qualifications to serve on the
prosecution team.”
On August 30, 2007, the AFCCA denied Appellant’s motion,
stating it had already begun review of the case. However, the
AFCCA encouraged appellate defense counsel to file a brief: “If
a brief from Appellant is received prior to action by this
Court, it will be considered.” No brief was filed.
The AFCCA affirmed the findings and sentence approved by
the convening authority on September 13, 2007, almost thirteen
months after the case was received by the Appellate Defense
Division and assigned to Capt D. United States v. Roach, ACM
No. S31143, 2007 CCA LEXIS 402, *9, 2007 WL 2790660 *3-*4 (A.F.
Ct. Crim. App. Sept. 13, 2007) (per curiam) (unpublished).
Finding Appellant had failed to show good cause for a new sixty-
day period for filing a brief, the AFCCA decided the case
without the brief. Id. at *3, 2007 WL 2790660, at *1. Citing
A.F. Ct. Crim. App. R. 15(b) and 15.4, the AFCCA said that “it
4
United States v. Roach, No. 07-0870/AF
is clear that if no brief is filed by appellate defense counsel
then it is presumed to constitute a submission on the merits.”
Id. at *7, 2007 WL 2790660 at *3.
The AFCCA examined both of the issues mentioned by
appellate defense in the motion for reconsideration as possible
issues in the case -- the qualifications of assistant trial
counsel and the effectiveness of trial defense counsel for not
raising the issue in clemency. Id. at *4-*6, 2007 WL 2790660 at
*2. The court also examined Capt D’s failure to file a brief
for ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984):
Despite the clear expression by the appellant that
he desired to be represented by counsel before this
Court, we do not presume a breach of the reasonableness
standard. The unique stature of this Court and the
Court rules themselves make that issue more complex and
the presumption impossible to reach. Under Article
66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1), this Court is
required by law to review the appellant’s case once
referred to the Court by the Judge Advocate General.
That referral has occurred. Appellate defense counsel
is well aware of our obligation. In addition, under
Rules 15(b) and 15.4 of this Court’s Rules of Practice
and Procedure, it is clear that if no brief is filed by
appellate defense counsel then it is presumed to
constitute a submission on the merits. Considering the
extremely limited record in this case and the lack of
any substantive issues, a submission on the merits is
reasonable. As for the failure to expressly file a
merits brief, it is impossible to speculate whether we
have a deficiency of counsel, a strategy to create an
issue, or a delay tactic for the benefit of their
client. See [Roe v. ]Flores-Ortega, 528 U.S. [470,]
484 [2000]. Thus we do not find that the appellant has
met his burden of establishing a breach of the
standard. Nevertheless, we looked to the second prong
5
United States v. Roach, No. 07-0870/AF
of the Strickland analysis. Having done so, we also
find no prejudice to the appellant. Notwithstanding
appellate defense counsel’s failure to file a brief,
the appellant in this case still actually received the
benefit of the appellate process. There is no evidence
to support a contention that this appellate proceeding
is “unreliable or entirely nonexistent” as was the case
in Flores-Ortega. Id. We have reviewed the entire
Record of Trial for errors and find none. The
appellant pled guilty. The trial lasted less than
three hours in length before a certified military judge
and trial defense counsel made no objections or motions
before, during, or after the trial.
Id. at *7-*8, 2007 WL 2790660, at *3 (footnotes omitted).
We granted Appellant’s motion to admit declarations from
Capt D, Lt Col S, and Colonel (Col) M, a reservist also assigned
to the Appellate Defense Division. Capt D stated that, although
he was detailed appellate defense counsel for Appellant, he did
not read the record of trial before the AFCCA affirmed the
findings and sentence. “When AFCCA decided the case, the
defense copy of the record of trial was not in my possession
because it had been sent to a reservist to review.” Lt Col S,
the Deputy Division Chief, Appellate Defense Division, stated
that he assigned Appellant’s case to Capt D, that he signed each
request for enlargement and the motion for reconsideration as a
supervisory appellate defense counsel, but that he did not read
6
United States v. Roach, No. 07-0870/AF
the record of trial. Col M said she “was given the record of
trial” in this case between August 20 and August 23, 2007, but
had neither read the record nor communicated with Appellant.1
II.
“Appellate defense counsel shall represent the accused
before the Court of Criminal Appeals . . . when requested by the
accused,” Article 70(c)(1), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 870(c)(1) (2000), and Appellant so requested
on the day of his trial. This Court has interpreted an
appellant’s statutory right to appellate counsel under Article
70, UCMJ, to mean the effective representation by counsel
through the entire period of review following trial. Diaz v.
Judge Advocate General of the Navy, 59 M.J. 34, 37 (C.A.A.F.
2003); accord United States v. Adams, 59 M.J. 367, 370 (C.A.A.F.
2004).
Appellate courts may be the guardians of an appellant’s
Article 70, UCMJ, right to be represented by counsel on appeal;
contrary to the majority opinion, however, compliance with
Article 70, UCMJ, depends on appellate defense counsel’s
performance, not on the performance of the AFCCA. Compare
1
The declarations of Capt D, Lt Col S, and Col M are relatively
unhelpful. It is unclear, for instance, whether the case was
ever actually reassigned to Col M. The declarations of Capt D
and Lt Col S also fail to mention any communications they may
have had with Appellant, although that would obviously be of
7
United States v. Roach, No. 07-0870/AF
Article 70, UCMJ, with Article 66, UCMJ, 10 U.S.C. § 866 (2000).
To resolve issues of appellate defense counsel’s performance,
“we are guided by the Supreme Court’s two-pronged test set forth
in Strickland v. Washington, 466 U.S. 668 (1984).” Adams, 59
M.J. at 370; accord United States v. Miller, 63 M.J. 452, 455-56
(C.A.A.F. 2006); see Roe v. Flores-Ortega, 528 U.S. 470, 477-87
(2000) (vacating the judgment of the lower court that had held
counsel’s failure to file a notice of appeal without the
appellant’s consent was sufficient to grant him a right to a new
appeal, and holding that the Strickland test is the proper
framework for evaluating an ineffective assistance of counsel
claim, based on counsel’s failure to obtain the appellant’s
consent).2 The Strickland test provides:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair
trial.
466 U.S. at 687.
interest to an appellate court. See May, 47 M.J. at 482. Col M
denied ever communicating with Appellant.
2
While recognizing the difference between failing to file a
notice of appeal in civilian court and failing to file a brief
in a military appellate court, the Flores-Ortega opinion is
helpful in analyzing the granted issues.
8
United States v. Roach, No. 07-0870/AF
The majority’s reliance on Bell and May is misplaced.
First, those cases were decided before the Supreme Court
resolved how to handle deficient appellate counsel performance
in Flores-Ortega. Second, the procedural posture of those cases
was different, as was the degree to which the appellants were
represented by counsel. Bell’s “obstreperous . . . . conduct
caused two qualified defense counsel to request relief from
assignment to avoid compromising their standings as lawyers.”
Bell, 11 C.M.A. at 308, 29 C.M.R. at 124. The Board of Review
relieved the counsel and decided the case without notifying the
appellant. Id. at 309, 29 C.M.R. at 125. Thus, at the time of
his appeal, Bell was totally unrepresented. In May, the
appellant’s trial defense counsel alleged three errors in his
post-trial submissions. 47 M.J. at 479. Neither the
appellant’s civilian nor military appellate counsel filed a
brief on appeal, so none of those issues was presented to the
Court of Criminal Appeals. Id. at 480. This Court held that
May was, in effect, unrepresented by counsel and prejudice was,
therefore, presumed. Id. at 481.
This case is different. Appellant was represented by
appellate defense counsel who continued to submit matters to the
AFCCA up until the court rendered its decision. Although
Appellant’s counsel never filed a formal brief, the AFCCA
reviewed at length both of the issues Appellant raised.
9
United States v. Roach, No. 07-0870/AF
Appellant was represented by counsel and, therefore, his case
should be analyzed under the Strickland standard. See Flores-
Ortega, 528 U.S. at 478.
III.
A.
The first prong of the Strickland standard requires an
appellant to “show that counsel’s representation fell below an
objective standard of reasonableness. . . . under prevailing
professional norms.” 466 U.S. at 688. In Flores-Ortega, the
Supreme Court refused to adopt a bright-line rule that, unless
an accused instructs him otherwise, counsel’s failure to file a
notice of appeal is per se objectively unreasonable. 528 U.S.
at 478. Instead, the Court affirmed the applicability of the
Strickland standard for deficient performance -- whether
counsel’s performance “‘was reasonable considering all the
circumstances.’” Id. (quoting Strickland, 466 U.S. at 688).
The circumstances the Supreme Court considered included whether
counsel consulted with the accused -- “advising the [accused]
about the advantages and disadvantages of taking an appeal, and
making a reasonable effort to discover the defendant’s express
instructions.” Id. If counsel consulted with the accused, his
performance is objectively unreasonable “only by failing to
follow the [accused’s] wishes.” Id.10
United States v. Roach, No. 07-0870/AF
The record does not establish whether Capt D or Lt Col S
consulted with Appellant within the meaning of Flores-Ortega.
Despite the importance of the issue, appellate defense counsel’s
declarations are not helpful in determining whether, and to what
extent, counsel even communicated with Appellant. The August
23, 2007, defense submission to the AFCCA suggests that counsel
had contacted Appellant so as to receive permission to tell the
court that Appellant agreed to the requested enlargements of
time and to receive Appellant’s request to raise two issues on
appeal. But that is not sufficient to establish consultation as
defined in Flores-Ortega. Col M asserts she had no
communications with Appellant.
If an appellate defense counsel does not consult with the
accused, his performance is objectively unreasonable “when there
is reason to think either (1) that a rational accused would want
to appeal (for example, because there are nonfrivolous grounds
for appeal), or (2) that this particular [accused] reasonably
demonstrated to counsel that he was interested in appealing.”
Flores-Ortega, 528 U.S. at 480. Appellant reasonably expressed
his interest in appealing by signing the request for appellate
counsel at trial and by advising counsel of the two issues he
wanted raised to the AFCCA. Yet neither Capt D nor Lt Col S
reviewed the record to see if it supported Appellant’s claims.
11
United States v. Roach, No. 07-0870/AF
In fact, they even failed to submit a Grostefon3 brief listing
the issues Appellant wanted raised. Instead, they merely listed
the issues in a request for reconsideration. Under the
circumstances, I conclude that the performance of Capt D and Lt
Col S was deficient; it was objectively unreasonable for them
not to timely file a brief.
B.
The second prong of the Strickland test, which requires
Appellant to establish prejudice, focuses on the reliability of
the proceeding as a whole. See Flores-Ortega, 528 U.S. at 483;
United States v. Cronic, 466 U.S. 648, 659 (1984). Normally,
there is a strong presumption of reliability in judicial
proceedings that an accused must overcome by showing “that there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694.
The Supreme Court has identified three circumstances “so
likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified,” Cronic, 466
at 658: (1) if there is a “complete denial of counsel”; 2) “if
3
United States v. Grostefon, 12 M.J. 431, 435-36 (C.M.A. 1982).
12
United States v. Roach, No. 07-0870/AF
counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing”; and (3) if counsel is called
upon to render assistance where competent counsel very likely
could not have rendered effective assistance. Id. at 659-61.
When an accused establishes that “he was -- either actually
or constructively -- denied the assistance of counsel
altogether. . . . ‘no specific showing of prejudice is
required,’ because ‘the adversary process itself [is]
presumptively unreliable.’” Flores-Ortega, 528 U.S. at 483(quoting Cronic, 466 U.S. at 659). “[W]hen counsel’s
constitutionally deficient performance deprives a defendant of
an appeal that he otherwise would have taken, the defendant has
made out a successful ineffective assistance of counsel claim
entitling him to an appeal.” Id. at 484. In such a case, the
accused need not “demonstrate that his hypothetical appeal might
have had merit before any advocate has ever reviewed the record
in his case in search of potentially meritorious grounds for
appeal.” Id. at 486. Instead, he is required to show that “but
for counsel’s deficient conduct, he would have appealed.” Id.
In Flores-Ortega, “counsel’s alleged deficient performance
arguably led not to a judicial proceeding of disputed
reliability, but rather to the forfeiture of a proceeding
itself.” Id. at 483. This appellant, however, was not denied
an appeal. The AFCCA considered, analyzed, and rendered
13
United States v. Roach, No. 07-0870/AF
judgment on the two issues Appellant raised and one issue it
raised sua sponte. The AFCCA also complied with its statutory
duty to
affirm only such findings of guilty and the sentence
or such part or amount of the sentence, as it finds
correct in law and fact and determines, on the basis
of the entire record, should be approved. In
considering the record, it may weigh the evidence,
judge the credibility of witnesses, and determine
controverted questions of fact, recognizing that the
trial court saw and heard the witnesses.
Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). It reviewed the
case for legal and factual sufficiency and considered the legal
errors Appellant alleged.
IV.
As Appellant was not denied an appeal, he has the burden of
demonstrating that his counsel’s deficient performance
prejudiced his defense -- “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Appellant has failed to do so.
As the majority notes, Appellant’s new defense counsel
claim they would have raised two issues on appeal had they been
given the opportunity to do so: (1) the plea was improvident
because the military judge failed to explain the defense of
14
United States v. Roach, No. 07-0870/AF
voluntary intoxication; and (2) the enormous disparity in the
sentence imposed on his co-actor warranted a reduction in
Appellant’s sentence.
A.
Voluntary intoxication is not a defense, but may be
introduced for the purpose of raising a reasonable doubt as to
the existence of actual knowledge or specific intent if either
is an element of the offense. Rule for Courts-Martial
916(l)(2). To raise the issue, there must be some evidence that
the intoxication was of a severity as to render the appellant
incapable of having the requisite knowledge or of forming the
specific intent. United States v. Peterson, 47 M.J. 231, 234
(C.A.A.F. 1997).
In the early morning hours of October 13, 2005, Appellant
consumed a large quantity of alcoholic beverages eventually
causing him to pass out for approximately ninety minutes. After
awakening, he directed another airman to drive him to a downtown
apartment building, where he got out of the vehicle and walked
around the neighborhood. He was eventually stopped and
interrogated by police officers. After his release, he directed
the airman to drive him to another location where Appellant
again left the vehicle. Appellant returned with a woman. They
drove to an ATM where Appellant withdrew money from his bank
15
United States v. Roach, No. 07-0870/AF
account using his government travel card. Appellant paid the
woman $40 in exchange for a rock of cocaine, which he showed the
other airman how to smoke.
While the military judge did not specifically discuss
involuntary intoxication with Appellant, she did ensure that his
plea was provident. During the providence inquiry, Appellant
told the military judge that he knew at the time that he was
using cocaine and had no legal justification for doing so; he
knew that his use of cocaine was a violation of the law; despite
his drinking, he remembered making a conscious choice to use
cocaine; he knew what he was doing when he used the cocaine and
could have avoided using the cocaine if had wanted to do so.
Under these circumstances, the military judge was not required
to discuss how the issue of voluntary intoxication could affect
Appellant’s plea.
B.
Appellant’s sentence is not “highly disparate” when
compared to that of Airman First Class (A1C) Neff and there are
rational reasons for any difference. See United States v. Lacy,
50 M.J. 286, 288 (C.A.A.F. 1999). It would have been apparent
to the AFCCA from its review of the record that Appellant’s
sentence was not disproportionate to A1C Neff’s. After all,
Appellant orchestrated the use of cocaine. He outranked A1C
Neff, directed A1C Neff to drive them to the place where
16
United States v. Roach, No. 07-0870/AF
Appellant located the drug dealer who provided the cocaine, used
his government travel card to obtain funds for purposes other
than official travel, provided funds to the drug dealer to
purchase steel wool for the crack pipe, and showed A1C Neff how
to use the crack pipe to smoke the cocaine.
The AFCCA was also aware of A1C Neff’s sentence. Appellant
described it in his unsworn statement as being confinement for
one month, hard labor without confinement for ninety days,
forfeiture of $325 pay per month for six months, a reprimand,
and reduction to E-1, specifically noting that A1C Neff did not
receive a bad-conduct discharge. While the AFCCA did not
discuss the issue, it concluded that the sentence was correct in
law and fact. Roach, 2007 CCA LEXIS 402, at *9, 2007 WL
2790660, at *3. Under the circumstances, that is sufficient.
There is no evidence to warrant a reduction in Appellant’s
sentence.
Appellant failed to demonstrate prejudice -- that there was
a reasonable probability that but for his counsel’s deficient
performance his sentence would have been different. Therefore,
the decision of the AFCCA should be affirmed.
V.
In Moreno, this Court held that “[d]ue process entitles
convicted service members to a timely review and appeal of
court-martial convictions.” 63 M.J. at 132. We expressed
17
United States v. Roach, No. 07-0870/AF
concern that “[t]here is no evidence in this case that the
numerous requests for delay filed by appellate defense counsel
benefited Moreno or that Moreno was consulted about and agreed
to these delays.” Id. at 137. This Court established “a
presumption of unreasonable delay where appellate review is not
completed and a decision is not rendered within eighteen months
of docketing the case before the Court of Criminal Appeals.”
Id. at 142.
We warned the Courts of Criminal Appeals that we expected
them “to document reasons for delay and to exercise the
institutional vigilance that was absent in Moreno’s case.” Id.
at 143. Through its court rules, the AFCCA attempted to
document these delays and undertake the institutional vigilance
necessary to ensure Appellant received a timely appeal. The
majority permits appellate counsel to frustrate that plan by
refusing to file a brief or to adequately document the reasons
for not doing so. Therefore, I dissent.
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