United States v. Cary

Judge EFFRON

delivered the opinion of the Court.

At a special court-martial composed of a military judge sitting alone, Appellant was convicted, pursuant to his pleas, of dereliction of duty (two specifications), carnal knowledge, and obstruction of justice, in violation of Articles 92, 120, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 934 (2000). He was sentenced to a bad-conduct discharge, confinement for six months, forfeiture of $500.00 pay per month for six months, and reduction to the lowest enlisted grade. The convening authority approved these results, and the United States Air Force Court of Criminal Appeals affirmed the findings and the sentence. United States v. Cary, 2005 CCA LEXIS 73, 2005 WL 486140 (A.F.Ct.Crim.App. Feb. 8, 2005).

On Appellant’s petition, we granted review of the following issues:

I. WHETHER PRESENTING EVIDENCE TO THE MILITARY JUDGE THAT APPELLANT HAD PREVIOUSLY RECEIVED NONJUDICIAL PUNISHMENT UNDER ARTICLE 15, UNIFORM CODE OF MILITARY JUSTICE, WAS PLAIN ERROR WHEN APPELLANT HAD NOT IN FACT EVER RECEIVED NONJUDICIAL PUNISHMENT UNDER ARTICLE 15.

II. WHETHER THE TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN SENTENCING AND POST-TRIAL PROCESSING BY FAILING TO OBJECT TO THE REFERENCE TO NONJUDICIAL PUNISHMENT ON THE PERSONAL DATA SHEET.

For the reasons set forth below, we affirm.

I. BACKGROUND

Appellant was convicted of offenses pertaining to sexual activity with minor female dependents. Two of the offenses involved violating a base regulation against having under age dependents in his dormitory room; one offense pertained to sexual intercourse with one of the dependents, who was under the age of sixteen; and the third offense concerned obstruction of justice by asking one of the dependents to lie to investigators.

During the sentencing proceeding in this judge-alone trial, trial counsel provided the defense with a document that the prosecution intended to introduce, a personal data sheet summarizing Appellant’s service. The document was admitted without objection. In the midst of data summarizing Appellant’s personal records, the document contained the following entry: “NO. OF PREVIOUS ARTICLE 15 ACTIONS: 1.” See Article 15, UCMJ, 10 U.S.C. § 815 (2000) (nonjudieial punishment). The entry did not describe the basis for or result of any nonjudieial punishment proceeding. Trial counsel specifically introduced two administrative records reflecting negatively on Appellant, but did not introduce any record of a nonjudieial punishment proceeding, nor did trial counsel refer to nonjudieial punishment in his sentencing argument or otherwise. The military judge made no mention of nonjudieial punishment. The reference to Article 15 on the personal data sheet appears to have been a clerical error, as neither party contends that Appellant ever received nonjudieial punishment.

Following the trial, the convening authority, upon recommendation of the staff judge advocate, approved the sentence as adjudged. See Article 60, UCMJ, 10 U.S.C. § 860 (2000). Although the staff judge advocate’s recommendation referred to the attached personal data sheet, the recommendation described Appellant’s prior service as “satisfactory” and did not mention nonjudicial punishment. Prior to consideration by the convening authority, the staff judge advocate’s recommendation was served on defense counsel, who offered no objection.

II. DISCUSSION

In the absence of objection in the circumstances of this case, we proceed under the “plain error” standard set forth in United States v. Powell, 49 M.J. 460, 463, 465 (C.A.A.F.1998). We must determine whether there was error, whether it was plain, and whether it materially prejudiced a substantial right of the accused. See United States v. Finster, 51 M.J. 185, 187 (C.A.A.F.1999).

To place this matter in context, we note that a commander has considerable discretion in deciding whether an offense is a minor offense subject to punishment under Article 15. See Manual for Courts-Martial, United States pt. V, para, l.e (2005 ed.). Nonjudieial punishment can be used to cover a wide variety of offenses, ranging from an incidental infraction during initial training to a significant dereliction by a member of a command’s permanent party. See generally id. para. l.d. A data entry listing the numeral “1” after “Article 15” — without any reference to the nature of the offense or the type of punishment — is not particularly informative. Military judges, staff judge advocates, and convening authorities know this, and it is highly unlikely that an official responsible for adjudicating or approving a sentence would focus on the term “Article 15” without seeking further information about the significance of the entry.

In that regard, it is noteworthy that trial counsel made no mention of the nonjudicial punishment, even though he specifically introduced records of less serious administrative actions. The staff judge advocate, who likewise did not refer to nonjudicial punishment, instead described Appellant’s service as satisfactory. In that context, although the error of introducing the personnel data sheet that contained the numeral “1” after “Article 15” may have been “plain,” Appellant has not demonstrated that the military judge or the convening authority considered this entry.

In the present case, Appellant was charged with offenses for which he could have received the jurisdictional maximum at his special court-martial of one year of confinement. The adjudged and approved confinement was considerably less — 180 days. In that context, the absence of any reliance on the erroneous information by the prosecution or the staff judge advocate underscores the absence of any prejudice under the plain error test. See Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

With respect to Appellant’s claim of ineffective assistance of counsel, an even higher standard of prejudice applies. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987). In this guilty plea case, where the primary concern of the client would be on the sentence, defense counsel should have given careful attention to the evidence that would be introduced during sentencing. Assuming counsel was ineffective in not objecting to the data sheet with the incorrect entry, the defense must show that absent such error, there is a reasonable probability of a different result. United States v. Polk, 32 M.J. 150, 153 (C.M.A.1991). In view of our conclusion on the issue of prejudice under the plain error analysis, any deficiency here does not establish prejudice with respect to the issue of ineffective assistance of counsel.

III. CONCLUSION

The decision of the United States Air Force Court of Criminal Appeals is affirmed.