United States v. Captain
2016 CAAF LEXIS 121
| C.A.A.F. | 2016Background
- Sgt. Francis L. Captain pleaded guilty to abusive sexual contact (Article 120, UCMJ) and was sentenced to a dishonorable discharge, 5 years 6 months confinement, forfeiture of all pay, reduction to E‑1, and a $50,000 fine; the convening authority disapproved the fine and stated approval of the remainder but did not explicitly list the dishonorable discharge.
- A pretrial agreement capped confinement at four years and permitted approval of any punitive discharge as adjudged.
- Captain claimed ineffective assistance of counsel at sentencing: counsel failed to call character witnesses or introduce documentary military records and conceded (or requested) a dishonorable discharge without Captain’s documented consent.
- The Navy‑Marine Corps Court of Criminal Appeals (NMCCA) ordered a DuBay hearing; the DuBay judge found trial counsel reasonably pursued a tactical sentencing strategy (to avoid opening the door to damaging rebuttal evidence and to secure a confinement cap) and credited counsel’s testimony that Captain agreed to request a dishonorable discharge.
- NMCCA affirmed. On further review, the Court of Appeals for the Armed Forces (CAAF) considered (1) whether counsel was ineffective (deficient performance and prejudice) and (2) whether the convening authority’s action unambiguously approved the dishonorable discharge.
Issues
| Issue | Captain's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective at sentencing for not calling witnesses or introducing documentary military records | Counsel’s omissions were deficient and prejudicial because they likely increased chance of a punitive discharge and greater confinement | Counsel made a reasonable tactical decision to avoid rebuttal that could have worsened outcome; confinement cap obtained; military judge already credited service | Not ineffective; tactical choices were reasonable and no reasonable probability of a better sentence absent omissions |
| Whether counsel improperly conceded/requested a punitive discharge without the accused’s consent | Counsel conceded discharge without Captain’s consent; failure to memorialize consent made counsel’s advocacy deficient | Counsel secured Captain’s agreement to request a dishonorable discharge as part of mitigation strategy; lack of paperwork was not fatal given DuBay findings | No prejudice; DuBay findings suffice to show counsel discussed and obtained assent — failure to memorialize not reversible error, but memorialization recommended |
| Whether the convening authority’s action explicitly approved the dishonorable discharge | The action did not list the punitive discharge among approved punishments; thus NMCCA lacked authority to affirm the discharge | Language in the execution paragraph directing that the punitive discharge "will be executed after final judgment" indicates intent to approve; at minimum action is ambiguous and can be clarified under R.C.M. 1107(g) | Action is ambiguous regarding approval of the dishonorable discharge; record returned for corrective action under R.C.M. 1107(g) |
| Standard for reviewing alleged ineffective assistance in sentencing | N/A (procedural) | N/A | De novo review of legal question with deference to DuBay factual findings; may resolve on prejudice ground without reaching deficiency prong |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (established two‑prong ineffective assistance test)
- United States v. Datavs, 71 M.J. 420 (C.A.A.F.) (prejudice standard in military ineffective assistance claims)
- United States v. Quick, 59 M.J. 383 (C.A.A.F.) (assessing prejudice in sentencing ineffectiveness claims)
- United States v. Pineda, 54 M.J. 298 (C.A.A.F.) (counsel must make record of accused’s consent when requesting punitive discharge)
- United States v. Politte, 63 M.J. 24 (C.A.A.F.) (ambiguous convening authority action may be returned for clarification)
- United States v. Wilson, 65 M.J. 140 (C.A.A.F.) (convening authority language can be clear and thus foreclose approval of punitive discharge)
- United States v. Ballan, 71 M.J. 28 (C.A.A.F.) (de novo review for whether R.C.M. 1107 satisfied)
- United States v. Dresen, 40 M.J. 462 (C.M.A.) (counsel may not ask for a punitive discharge contrary to accused’s wishes)
- United States v. Anderson, 55 M.J. 198 (C.A.A.F.) (deference to military judge’s factual findings on DuBay review)