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 Robert H. Meek, III, JA; Sean A. Marvin, Esquire; James 

Phillips, Esquire (on brief); Captain Payum Doroodian, JA; Sean A. Marvin, 

Esquire; James Phillips, Esquire (on reply brief); Captain Patrick J. Scudieri, JA; 

David P. Sheldon, Esquire; Sean A. Marvin, Esquire (on supplemental brief). 

For Appellee: Colonel Mark H. Sydenham, 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 

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SUMMARY DISPOSITION ON FURTHER CONSIDERATION 

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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 

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 

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On 3 June 2016, this court ordered 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 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, ARMY 20130853 (Army Ct. Crim. App. 3 Jun. 2016) 

(order). The DuBay hearing concluded 13 July 2016. On 1 August 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 later, 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. disp.). On 25 August 2016, defense counsel filed a 

motion for reconsideration requesting additional time to file a supplemental brief 

with this court. This court then vacated the previous summary disposition and 

allowed parties to file additional briefs. United States v. O’Connor, ARMY 

20130853 (Army Ct. Crim. App. 29 Aug. 2016) (order).

This case is again before us for review under Article 66, UCMJ and we have 

reviewed the supplemental briefs filed by the parties. 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 

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 defense counsel’s performance 

constitutionally deficient. 

DISCUSSION 

 To establish ineffective assistance of counsel, appellant “bears the heavy 

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 
O’CONNOR—ARMY 20130853 

3 

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. 

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 690-91. 

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 undue command influence or an order for appellant to 

delete his PlentyOfFish account. We agree. 
O’CONNOR—ARMY 20130853 

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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 THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: