UNITED STATES, Appellee, v. David P. CHRISTIAN, Staff Sergeant, U.S. Army, Appellant.
No. 04-0797
U.S. Court of Appeals for the Armed Forces
Decided May 31, 2006
63 M.J. 205
Crim.App. No. 20011021. Argued Oct. 12, 2005.
For Appellant: Captain Julie A. Caruso (argued); Colonel Mark Cremin, Lieutenant Colonel Mark Tellitocci, Major Sean S. Park, and Captain Michael L. Kanabrocki (on brief); Colonel John T. Phelps II and Major Allyson G. Lambert.
For Appellee: Captain Larry W. Downend (argued); Colonel Steven T. Salata, Lieutenant Colonel Theresa A. Gallagher, and Major William J. Nelson (on brief).
This Court has granted review of two issues.1 The first issue for our consideration is whether life without eligibility for parole (LWOP) was an authorized punishment at the time Appellant committed the offense of forcible sodomy of a child under twelve years of age. We hold that LWOP was an authorized sentence and conclude that Appellant‘s guilty plea was provident.
The second issue is whether Appellant received ineffective assistance of counsel because his trial defense counsel failed to advocate for confinement credit for Appellant‘s alleged illegal pretrial punishment and restriction tantamount to confinement, and advised Appellant to affirmatively waive the issue. We hold that there were reasonable explanations for these tactical decisions. As a result Appellant did not receive ineffective assistance of counsel. We will address each of these issues seriatim.
Factual Background
Congress passed a bill authorizing the court-martial punishment of confinement for LWOP on November 6, 1997.2 The portion of this bill relevant to this case permitted a court-martial to adjudge a sentence of LWOP for “any offense for which a sentence of confinement for life may be adjudged.”3 The President signed that bill into law on November 18, 1997.4
At the time this law became effective, offenses for which a sentence of confinement for life may be adjudged and to which the new law would apply could arguably be identified in two ways. First, Congress could have explicitly provided for imprisonment for life for a particular offense.5 Second, where the text of a punitive article did not provide for “imprisonment for life,” or otherwise restrict the available sentence, the President in the Manual for Courts-Martial (MCM) may also have prescribed a life sentence for an offense.6
It is this second circumstance that is implicated in the present case. Appellant committed the offense of oral sodomy on a seven-year-old sometime in May 1998. At that time, the punitive article punishing Appellant‘s aggravated sodomy offense did not explicitly provide for a punishment of impris-
On November 13, 2001, Appellant pled guilty to the commission of forcible sodomy of a child under twelve years of age and several other offenses in connection with the sexual molestation of his three minor stepdaughters and a thirteen-year-old friend of one of his stepdaughters. The military judge advised Appellant that the maximum punishment for his offenses included LWOP, and the trial defense counsel agreed without objection. Appellant entered into a pretrial agreement based on this assumption. The military judge accepted Appellant‘s guilty plea, convicted him of the charged offenses, and eventually sentenced Appellant to a dishonorable discharge, confinement for sixteen years, forfeiture of all pay and allowances, and reduction to the grade of Private (E-1).
On April 11, 2002, after Appellant‘s court-martial, the President amended the MCM to identify LWOP as a permissible confinement punishment for an
Congressional Authorization of LWOP as Punishment
The primary issue in this case is whether LWOP was an authorized court-martial punishment for the crime of forcible sodomy of a child under twelve years of age during the period between enactment of the LWOP statute and the eventual changes in the MCM. We conclude that the statute creating LWOP authorized this punishment after the date of its enactment, November 18, 1997. As Appellant committed the offense of forcible sodomy of a child under twelve years of age in May 1998, LWOP was an authorized punishment.
The Framers of the Constitution entrusted in Congress the power “To make Rules for the Government and Regulation of the land and naval Forces[.]”
The Supreme Court, most recently in Loving v. United States, addressed the relationship between congressional Article I powers and the President‘s codal responsibilities.13 The Court reaffirmed both the primacy of the Congress “To make Rules for the Government and Regulation of the land and naval Forces”14 and the flexibility of Congress to assign that authority to the President as conditions and circumstances may warrant.15
The Supreme Court supported these conclusions with historical analysis stating, “[H]istory does not require us to read Clause 14 as granting to Congress an exclusive, nondelegable power to determine military punishments. . . The Framers’ choice in Clause 14 was to give Congress the same flexibility to exercise or share power as times might demand.”16
Consistent with these principles, we view the President‘s exercise of his statutory responsibility under the UCMJ in the context of the constitutionally recognized primacy of the Congress to regulate the military justice system.17
Exercising its Article I power, Congress made the offense of sodomy punishable “as a court-martial may direct.”18 Congress also assigned to the President
The President exercised this responsibility by executive orders published in the MCM. At the time Appellant committed the offense of aggravated forcible sodomy, the President had established that the maximum punishment for the offense of forcible sodomy of a minor under the age of twelve was “confinement for life.”19
As stated above, Congress passed the National Defense Authorization Act for Fiscal Year 199820 on November 6, 1997, and it was signed into law by the President on November 18, 1997.21 The relevant portions of this law are now codified in
It is a well-established principle of statutory construction that, absent a clear direction of Congress to the contrary, a law takes effect on the date of its enactment.23 Applying this principle, the new LWOP statute became effective on November 18, 1997, six months prior to Appellant‘s offense, which occurred in May 1998. The statute also provided that
This Court typically seeks to harmonize independent provisions of a statute.
We now hold that LWOP is an authorized punishment for Appellant‘s offense of forcible sodomy of a child under twelve years of age, which occurred after November 18, 1997. In light of this holding, we conclude that the pretrial agreement is both proper and lawful and Appellant‘s guilty plea was provident. In our view, Appellant was not misled as to the maximum permissible punishment of LWOP. The military judge correctly instructed Appellant as well as trial defense counsel that LWOP was an available punishment for his offense. Rejecting Appellant‘s challenge to the providency of his guilty plea, we turn to Issue II.
Evaluation of the Claim of Ineffective Assistance of Counsel for Failure to Seek Credit for Pretrial Confinement
Appellant also asserts that he received ineffective assistance of counsel because his trial defense counsel failed to advocate for confinement credit for Appellant‘s alleged illegal pretrial punishment and restriction tantamount to confinement and advised Appellant to affirmatively waive the issue.
The Supreme Court has established a two-pronged test to determine whether there has been ineffective assistance of counsel within the meaning of the Sixth Amendment: 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.30
This Court developed a three-pronged test in United States v. Polk, 32 M.J. 150 (C.M.A. 1991), to determine whether an appellant has overcome the presumption of competence: (1) Are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel‘s actions in the defense of the case? (2) If they are true, did the level of advocacy “fall[] measurably below the performance . . . [ordinarily expected] of fallible lawyers“? (3) If ineffective assistance of counsel is found to exist, “is . . . there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?”31
In the present case, we do not have to look beyond the first prong of the Polk analysis to realize that Appellant fails to establish ineffective assistance of counsel. Appellant alleges that his pretrial restraint was tantamount to confinement, and by not arguing for confinement credit, his trial defense counsel was ineffective. We hold that the Appellant has failed to show that his trial defense counsel‘s actions were not reasonable. As a result, Appellant has not demonstrated ineffective assistance of counsel.
According to Appellant, he was hospitalized at the 121 General Hospital in Korea on March 26, 2001, after writing a suicide letter to his wife the previous day. When Appellant returned to his unit at Fort Bragg, North Carolina, his commander placed him on restriction and ordered him to move to on-post quarters. Appellant told this informa-
Trial defense counsel could have reasonably concluded that the restrictions imposed on Appellant during his time in Korea were necessary in light of Appellant‘s suicide threat and therefore not restrictions tantamount to confinement. Appellant does not contest that he was hospitalized at the 121 General Hospital in Korea on March 26, 2001, after writing a suicide letter to his wife the previous day.
Upon arrival at Fort Bragg, Appellant‘s command imposed a series of necessary administrative measures to ensure Appellant‘s future safety as a result of his expressed suicidal intentions. Appellant‘s commander revisited these safeguards on numerous occasions and, upon each review, the commander reduced the restrictions imposed.
We note that upon departing Korea, Appellant spent thirty-six days on leave in Colorado before reporting to his duty in Fort Bragg, North Carolina on July 23, 2001. Appellant‘s new commander arrested him and preferred charges against him that same morning. According to Appellant, his restrictions included being restricted to post, being required to sign in with the staff duty noncommissioned officer, and having to remain in his barracks room during evening hours. Due to the serious nature of the charges (including the forcible sodomy of a child under twelve years of age) and his emotional history in Korea, it would be reasonable for defense counsel to conclude that there was a legitimate purpose for the revocation of off-post privileges. This Court has been clear that revocation of off-post privileges is not restriction tantamount to confinement.32 Here, it was reasonable to place initial restrictions on Appellant upon his return to the military post. As a result, trial defense counsel could reasonably conclude that the initial restrictions imposed on Appellant upon his return to the military post were not tantamount to confinement.
Thus, it would also be reasonable for a trial defense counsel to conclude that a claim of restriction tantamount to confinement may be held meritless at trial. Consequently, for tactical reasons, a defense counsel may want to avoid asserting such a claim. Moreover, we note that trial defense counsel discussed Appellant‘s restrictions with the military judge. Here, defense counsel appears to have made a reasonable tactical decision to offer the circumstances of Appellant‘s restriction as a factor in mitigation of the sentence instead of requesting confinement credit.33
In light of this conclusion, it follows that it was also a reasonable tactical decision for trial defense counsel to advise Appellant to affirmatively waive these issues. As a result, the first prong of the Polk analysis has not been satisfied and Appellant did not receive ineffective assistance of counsel.
DECISION
The decision of the United States Army Court of Criminal Appeals is affirmed.