United States v. Sergeant MICHAEL B. O'CONNOR

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, HERRING, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant MICHAEL B. O’CONNOR
United States Army, Appellant
ARMY 20130853
Headquarters, Fort Campbell
Tyesha Smith, Military Judge (trial)
Matthew A. Calarco, Military Judge (DuBay hearing)
Lieutenant Colonel Sebastian A. Edwards, Staff Judge Advocate (trial)
Lieutenant Colonel Robert C. Insani, Staff Judge Advocate (DuBay hearing)
For Appellant: Captain Payum Doroodian, JA; Sean A. Marvin, Esquire; James
Phillips, Esquire (on reply brief); Captain Robert H. Meek, III, JA; Sean A. Marvin,
Esquire; James Phillips, Esquire (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major John Choike, JA (on brief).
19 August 2016
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SUMMARY DISPOSITION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
BURTON, Judge:
A military judge sitting as a general court-martial convicted appellant,
contrary to his plea, of attempted forcible sodomy, in violation of Article 80,
Uniform Code of Military Justice, 10 U.S.C. § 880 (2012) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, confinement for
sixteen months, and reduction to the grade of E-1. The convening authority
approved the findings of guilt and the adjudged sentence.
This case is before us for review under Article 66, UCMJ. Appellant raises
one assignment of error alleging the appellant received ineffective assistance of
counsel when his trial defense counsel failed to act in accordance with prevailing
professional norms by not investigating or preparing before trial, not zealously
defending appellant, insisting to appellant that he not testify, and falling asleep
O’CONNOR—ARMY 20130853
during trial. Appellant’s matters pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982) are without merit.
On 3 June 2016, this court ordered a DuBay hearing “to determine the facts
surrounding [a]ppellant’s allegations that his trial defense counsel was ineffective in
failing to investigate alleged unlawful command influence in the preferral process.”
United States v. O’Connor, No. 16-0309, 2016 CAAF LEXIS 369 (13 May 2016).
The DuBay hearing concluded 13 July 2016.
Based on the record before us, we do not find defense counsel’s performance
constitutionally deficient.
DISCUSSION
To establish ineffective assistance of counsel, appellant “bears the h e a v y
burden” of satisfying the two-part test that: “the performance of his counsel was
deficient and that he was prejudiced thereby.” United States v. Weathersby , 48 M.J.
668, 670 (Army Ct. Crim. App. 1998) (citing Strickland v. Washington, 466 U.S. 668
(1984); United States v. Scott, 24 M.J. 186 (C.M.A. 1987)). Regarding the first
prong, counsel is presumed competent; thus, appellant “must rebut the presumption
by pointing out specific errors made by his defense counsel which were
unreasonable under prevailing professional norms.” Weathersby, 48 M.J. at 670
(citing United States v. Cronic, 466 U.S. 648 (1984)).
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, [an
appellate] court must indulge a strong presumption that a
defense counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, [an appellant]
must overcome the presumption that, under the
circumstances, the challenged action “might be considered
sound trial strategy.” There are countless ways to provide
effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client the same way.
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O’CONNOR—ARMY 20130853
Strickland, 466 U.S. at 689 (citations omitted).
“Thus, a court deciding an ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct.” Id. at 690. “[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.” Id. at 690-691.
To establish prejudice and meet the second prong, appellant must show
“counsel’s errors were so serious as to deprive the accused of a fair trial, a trial
whose result is reliable.” Weathersby, 48 M.J. at 670. This requires appellant to
show that the errors had more than “some conceivable effect” on the proceedings,
but appellant “need not show that counsel’s deficient conduct more likely than not
altered the outcome in the case.” Strickland, 466 U.S. at 693.
The military judge’s conclusions of law from the DuBay hearing were that
appellant’s defense team was not deficient in their performance by failing to
investigate either alleged UCI or an order for appellant to delete his PlentyOfFish
account. We agree.
CONCLUSION
On consideration of the entire record, including consideration of the issues
personally specified by the appellant, the findings of guilty and the sentence are
AFFIRMED.
Senior Judge MULLIGAN and Judge HERRING concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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