## UNITED STATES ARMY COUR T 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, Mil itary Judge (trial) Matthew A. Calarco, Military Judge ( DuBay hearing)
Lieutenant Colonel Sebastian A. Ed wards, Staff Judge Advocate (trial)
Lieutenant Colonel Robert C. Insani, Staff Judge Advocate ( DuBay hearing)

For Appellant: Captain Robert H. Meek, II I, JA; Sean A. Marvin, Esquire; James Phillips, Esquire (on brief) ; Captain Payum Doroodian, JA; Sean A. Marvin, Esquire; James Phillips, Esqu ire (on reply brief); Captai n Patrick J. Scudieri, JA; David P. Sheldon, Esquire; Sean A. Marvin, Esquire (on supplemental brief).

For Appellee: Colonel Mark H. Sydenh am, JA; Major John K. Choike, JA (on brief); Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA (on supplemental brief).

22 September 2016

-------------------------------------------------------------------------- SUMMARY DISPOSITION ON FURTHER CONSIDERATION

--------------------------------------------------------------------------

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 Ju stice, 10 U.S.C. § 880 (2012) [hereina fter UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for sixteen months, and reduction to the grade of E-1.O’CONNOR—ARMY 20130853

2 On 3 June 2016, this court or dered a hearing pursuant to United States v. DuBay , 17 U.S.C.M.A. 147, 37 C. M.R. 411 (C.M.A . 1967) “to determine the facts surrounding [a]ppellant’s alle gations that his trial defens e counsel was ineffective in failing to investigate alleged unlawful command influenc e in the preferral process.”
United States v. O’Connor , ARMY 20130853 (Army Ct. Crim. App. 3 Jun. 2016) (order). The DuBay hearing concluded 13 July 2016. On 1 Augu st 2016, the record
of trial was returned to this court for further review and the following day the Defense Appellate Division was served with the record. Defense counsel did not file
an additional brief and over two weeks late r, on 19 August 2016, this court issued a summary disposition. United States v. O’Connor , ARMY 20130853 (Army Ct. Crim. App. 19 Aug. 2016) (summ. di sp.). On 25 August 2016, defense counsel filed a motion for reconsideration requ esting additional time to file a supplemental brief
with this court. This co urt then vacated the previous summary disposition and allowed parties to file additional briefs. United States v. O’Connor , ARMY 20130853 (Army Ct. Crim. Ap p. 29 Aug. 2 016) (order).

This case is again before us for revi ew under Article 66, UCMJ and we have reviewed the supplemental briefs filed by the parties. Ap pellant raises one assignment of error al leging the appellant received ineffective assistance of counsel
when his trial defense couns el failed to act in acco rdance with prevailing professional norms by not investigating or preparing before tr ial, not zealously defending appellant, insisti ng to appellant that he not testify, and falling asleep during trial. Appellant’s matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) are without merit.

Based on the record before us, we do not find defe nse counsel’s performance constitutionally deficient.

DISCUSSION

To establish ineffectiv e assistance of counsel, appellant “bears the heavy burden” of satisfying the two-part test th at: “the performance of his counsel was
deficient and that he wa s 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; th us, 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 defe nse after it has provedO’CONNOR—ARMY 20130853

3 unsuccessful, to conclude that a particular act or omission
of counsel wa s unreasonable. A fair assessment of attorney performance requires th at every effort be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to
evaluate the conduc t from counsel’s perspective at the
time. Because of the difficu lties inherent in making the evaluation, [an appellate] co urt must indulge a strong presumption that a defense co unsel’s conduct falls within the wide range of re asonable professional assistance; that is, [an appellant] must over come the presumption that, under the circumstances, the ch allenged action “might be considered sound trial strategy .” There are countless ways to provide effective assistan ce in any given case. Even
the best criminal defense at torneys would not defend a particular client the same way.

Strickland , 466 U.S. at 689 (c itations omitted).

“Thus, a court decidi ng 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]trat egic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after le ss than complete investigation are reas onable precisely to th e extent that reason able professional judgments support the limitations on investigation.” Id . at 690-91.

To establish prejudice and meet the second prong, appe llant 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 “som e conceivable effect” on the proceedings, but appellant “need not show that counsel’s deficient con duct more likely than not
altered the outcome in the case.” Strickland , 466 U.S. at 693.

The military judge’s conc lusions of law from the DuBay hearing were that appellant’s defense team was not deficien t in their performance by failing to investigate either alleged undue command influence or an order for appellant to delete his PlentyOfFish account. We agree.O’CONNOR—ARMY 20130853

4 CONCLUSION

On consideration of the entire recor d, including considerat ion of the issues personally specified by the appellant, the findings of guilty and the sentence are

AFFIRMED.

Senior Judge MULLIGAN an d Judge HERRING concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: