                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                       Spencer W. QUICK, Private
                     U.S. Marine Corps, Appellant

                               No. 03-0566

                        Crim. App. No. 200001657


       United States Court of Appeals for the Armed Forces

                        Argued February 11, 2004

                         Decided April 19, 2004

     ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed
an opinion concurring in the result.

                                  Counsel

For Appellant: Commander Michael J. Wentworth, JAGC, USNR
(argued); Lieutenant Commander Eric J. McDonald, JAGC, USN (on
brief).

For Appellee: Lieutenant Christopher J. Hajec, JAGC, USNR
(argued); Commander Robert P. Taishoff, JAGC, USN (on brief);
Lieutenant Frank L. Gatto, JAGC, USN.

Military Judge:    R. H. Kohlmann


  This opinion is subject to editorial correction before final publication.
United States v. Quick, No. 03-0566/MC

     Judge ERDMANN delivered the opinion of the Court.

     Appellant, Private (E-1) Spencer W. Quick, was tried by a

military judge sitting as a general court-martial.   He entered

guilty pleas to rape, wrongful appropriation, robbery, assault

with the intent to inflict grievous bodily harm and kidnapping

in violation of Articles 120, 121, 122, 128 and 134, Uniform

Code of Military Justice [UCMJ], 10 U.S.C. §§ 920, 921, 922, 928

and 934 (2000), respectively.   Following an inquiry into the

providence of his pleas, he was convicted of all charges.   Quick

was sentenced to a dishonorable discharge, confinement for 65

years and forfeiture of all pay and allowances.   Pursuant to a

pretrial agreement, the convening authority approved the

sentence but suspended all confinement in excess of 30 years.1

     The Navy-Marine Corps Court of Criminal Appeals reviewed

the conviction pursuant to Article 66(c), UCMJ, 10 U.S.C. §

866(c) (2000).   That court consolidated the robbery and

aggravated assault specifications into a single specification

under Article 122, affirmed the consolidated specification and

remaining charges, reassessed the sentence, and affirmed the

adjudged sentence as approved by the convening authority.

United States v. Quick, NMCM 200001657 (N-M. Ct. Crim. App.

April 18, 2003).



1
  The suspended portion of Quick’s sentence terminates 12 months
after he is released from confinement.

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United States v. Quick, No. 03-0566/MC

     Quick petitioned this Court and we granted review of the

following issue:

          WHETHER THE LOWER COURT ERRED IN CONCLUDING
          THAT APPELLANT WAS NOT PREJUDICED BY HIS
          TRIAL DEFENSE COUNSEL’S CONCESSION DURING
          HIS SENTENCING ARGUMENT THAT APPELLANT
          DESERVED A DISHONORABLE DISCHARGE, AND THAT
          CONFINEMENT FOR 40 YEARS OR LESS WAS NOT
          EXCESSIVE, BECAUSE “THE REASONABLE
          LIKELIHOOD THAT THE APPELLANT WOULD HAVE
          RECEIVE[D] AT LEAST A DISHONORABLE DISCHARGE
          AND CONFINEMENT WELL IN EXCESS OF 40 YEARS
          CANNOT BE DOUBTED.”


We find that Quick has failed to meet his burden of showing

prejudice under the ineffective assistance of counsel test set

forth in Strickland v. Washington, 466 U.S. 668 (1984) and

therefore affirm the decision of the Court of Criminal Appeals.

                                FACTS

     Quick’s guilty pleas arose out of a number of offenses he

committed in the early morning hours of June 2, 1999.    After

spending the previous night drinking at an “adult” nightclub,

Quick hired a taxi driven by a young woman.   He initially

directed her to drive to various places in an unsuccessful

search for a friend.   He then had her drive to his barracks at

Camp LeJeune and as he was getting out of the taxi, he noticed a

rock on the floor.    He grabbed the driver by the neck and pulled

her into the back seat where he struck her several times on the

head with the rock.




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United States v. Quick, No. 03-0566/MC

     Following the assault, Quick drove the taxi from Camp

LeJeune to a rural area where he raped the semi-conscious

driver.   He then drove the cab around with the driver in the

back seat until it ran out of gas.    Quick took $110.00 that he

found in the cab and fled the scene, leaving the driver alone

and injured.

     Based on his pleas, his admissions during the providence

inquiry and the stipulation of fact, the military judge found

Quick guilty of rape, wrongful appropriation of a vehicle,

robbery, aggravated assault and kidnapping.   Quick was advised

by the military judge that based on his pleas alone he faced a

maximum sentence that included, inter alia, a dishonorable

discharge and confinement for life without parole.

     During his sentencing case, Quick made a brief unsworn

statement in which he apologized to his victim, his mother, and

the Marine Corps.   He asked for forgiveness but made no mention

of any specific type of punishment.   Defense counsel, in

concluding his sentencing argument, stated:

           [Quick] is not the animal that the
           [G]overnment presents to you and says,
           [“]Lock him up and throw away the key and
           let him die behind bars.[”] The defense has
           no reason to argue a lesser type of
           discharge other than a dishonorable is
           proper in this case. The defense concedes
           that [it] is. This type of conduct truly
           deserves to be labeled as dishonorable. The
           other punishments are collateral. They have
           no real consequences in the outcome of this
           case. But the real issue is: How much time


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United States v. Quick, No. 03-0566/MC

          is enough? How long does he deserve to be
          locked up[?]
               He won’t go . . . prey on people again.
          He does not have that tendency in his life.
          There’s no indication that he’s ever been
          violent. He’s never abused other women.
          And that’s a predicament that he won[’]t
          give us in the future, especially when he
          gets an opportunity to receive the type of
          treatment that he does. A period of
          confinement in a term of years is adequate,
          Your Honor, to punish him, to let society
          know he has been punished, to allow him to
          accomplish one of the goals of punishment in
          a sentence of rehabilitation, and to give
          him light at the end of the tunnel that may
          allow him, one day, to get out and adjust
          and live life again.
               The defense will argue that any period
          of confinement in excess of 40 years is
          excessive. It is not necessary. Not for
          the military judge, who has a horribly
          difficult task here, to work through all of
          this stuff and try to understand this
          particular individual. And to try to scope
          and mold a punishment that will adequately
          punish him and serve the needs of justice in
          the military in that particular accused,
          Your Honor.

(Emphasis added.)   The military judge sentenced Quick to a

dishonorable discharge, confinement for 65 years and

forfeiture of all pay and allowances.    Pursuant to Quick’s

pretrial agreement, the convening authority suspended all

confinement in excess of 30 years for a period of 12 months

following Quick’s release from confinement and approved the

remainder of the sentence as adjudged.

     Before the Court of Criminal Appeals, Quick claimed that

his counsel provided ineffective assistance when he “conceded



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United States v. Quick, No. 03-0566/MC

the appropriateness of a dishonorable discharge and confinement

of up to 40 years.”   The Court of Criminal Appeals concluded

that defense counsel’s sentencing argument constituted deficient

performance when he conceded the appropriateness of the

dishonorable discharge where the record did not reflect Quick’s

agreement.   The lower court concluded, however, that Quick had

not demonstrated prejudice and therefore failed to carry his

burden of demonstrating ineffective assistance of counsel.

     On appeal to this Court, Quick again raises the argument

that his counsel provided ineffective assistance in conceding

the appropriateness of a dishonorable discharge and confinement

of up to 40 years.    In addition, Quick asserts that the Court of

Criminal Appeals applied the wrong standard in determining that

there was no prejudice.   We review this decision of the Court of

Criminal Appeals de novo as a question of law.   See United

States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002); United States

v. Sales, 56 M.J. 255 (C.A.A.F. 2002).

                                DISCUSSION

     Quick’s claim that defense counsel rendered ineffective

assistance is reviewed under the standards set forth by the

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

In Strickland, the Supreme Court stated that the “benchmark for

judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial



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United States v. Quick, No. 03-0566/MC

process that the trial cannot be relied on as having produced a

just result.”    Id. at 686.   To determine whether the result in

any particular case was unreliable, the Supreme Court went on to

establish a two-prong test:

           A convicted defendant’s claim that counsel’s
           assistance was so defective as to require
           reversal of a conviction . . . has two
           components. 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, a trial whose result is
           reliable. Unless a defendant makes both
           showings, it cannot be said that the
           conviction . . . resulted from a breakdown
           in the adversarial process that renders the
           result unreliable.

Id. at 687.     Key, 57 M.J. at 249.

     The burden on an appellant is heavy because counsel is

presumed to have performed in a competent, professional manner.

To overcome this presumption, an appellant must show specific

defects in counsel’s performance that were “unreasonable under

prevailing professional norms.”    United States v. Anderson, 55

M.J. 198, 201 (C.A.A.F. 2001).

     There is, however, no particular order that must be

followed in analyzing an ineffective assistance of counsel

claim.   “[A] court need not determine whether counsel’s



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United States v. Quick, No. 03-0566/MC

performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged

deficiencies. . . .   If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course should

be followed.”   Strickland, 466 U.S. at 697; see also United

States v. Adams, __ M.J. __, __ (C.A.A.F. 2004); United States

v. McConnell, 55 M.J. 479, 481 (C.A.A.F. 2001).

     Although the Court of Criminal Appeals correctly concluded

that the trial defense counsel improperly conceded the

appropriateness of a dishonorable discharge where the record was

silent as to the wishes of his client, see, e.g., United States

v. Dresen, 40 M.J. 462, 465 (C.M.A. 1994), that court did not

address trial defense counsel’s concession regarding the

appropriate amount of confinement.   Because we can resolve this

case by addressing the prejudice prong of Strickland, we need

not decide whether the trial defense counsel’s concession as to

confinement met the first prong of Strickland.    In addressing

the prejudice prong, it is first necessary to examine Quick’s

claim that the Court of Criminal Appeals used the wrong standard

in analyzing prejudice.

     The Court of Criminal Appeals properly cited Strickland and

the appropriate standard for evaluating ineffective assistance

of counsel.   That court went on, however, to cite our decision



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United States v. Quick, No. 03-0566/MC

in United States v. Pineda, 54 M.J. 298 (C.A.A.F. 2001), a case

that also involved a claim of ineffectiveness of counsel based

on the concession of a punitive discharge by the defense counsel

where the record did not reflect the appellant’s agreement.

Although this Court relied on the Strickland prejudice standard

in Pineda, the opinion did include the following language:

“[W]here the facts of a given case compel a conclusion that a

bad-conduct discharge was reasonably likely, we do not normally

order a new sentence hearing.”   Id. at 301.

     Quick argues that whether a particular result was

“reasonably likely” is not the proper standard and goes on to

argue that the “Court of Criminal Appeals must be persuaded

beyond a reasonable doubt that its reassessment has rendered

that constitutional deprivation harmless.”     At oral argument the

Government asserted that while the Strickland test is generally

the appropriate test for assessing prejudice, Pineda established

a different test for ineffective assistance of counsel cases

that involve an improper concession of a punitive discharge by

defense counsel.

     We agree with Quick that the Court of Criminal Appeals

utilized the wrong standard in analyzing the prejudice prong of

Strickland, but disagree with his assertion that “beyond a

reasonable doubt” is the correct standard.     Quick appears to

argue that once he meets the first prong (deficient performance)



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United States v. Quick, No. 03-0566/MC

under Strickland, he has shown a constitutional violation which

shifts the burden to the Government to demonstrate that the

deficient performance was harmless beyond a reasonable doubt.

Quick misperceives the test.   The Supreme Court in Strickland

established a two-prong test which must be met before there is a

finding of constitutional violation.    Absent a showing of both

deficient performance and prejudice, there is no constitutional

violation under Strickland.

     The second prong of the Strickland test does not include

the “reasonably likely” language relied on by the Court of

Criminal Appeals.   Rather, the appropriate test for prejudice

under Strickland is whether there is a reasonable probability

that, but for counsel’s error, there would have been a different

result.   466 U.S. at 694.   The Court of Criminal Appeals

properly cited Strickland as controlling authority and that is

the standard it should have applied, not a standard measuring

whether the sentence adjudged was “reasonably likely.”

     In Pineda, this Court assessed prejudice “under the second

prong of the test in Strickland.”     54 M.J. at 301.   To the

extent that the language in Pineda referenced by the Court of

Criminal Appeals has caused uncertainty in regard to the proper

standard for prejudice in cases involving concessions of

punitive discharges, we take this opportunity to clarify that

the Strickland test is the proper vehicle for reviewing a claim



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United States v. Quick, No. 03-0566/MC

that a defense counsel provided ineffective assistance of

counsel by conceding the appropriateness of a punitive

discharge.

     We now turn to the prejudice prong of Strickland – is there

a reasonable probability that, absent the error, there would

have been a different result?

     Quick’s pleas, his admissions during the providence inquiry

and the stipulation of fact reveal a brutally senseless crime.

For no explained reason, and certainly with no provocation,

Quick struck the taxi driver with a rock several times

inflicting, among other injuries, a “severe concussion . . .

deep cuts to the head . . . swelling and discoloration of the

tongue, and a brain contusion.”    This assault was but a first

step in a course of conduct marked by a total disregard for the

physical well-being and human dignity of the victim.   After

having beaten, kidnapped and raped her, Quick ultimately

abandoned her in a rural area.

     Given the nature of the crime there is no reasonable

probability that, even if defense counsel had not conceded a

dishonorable discharge and argued for 40 years confinement,

there would have been a different result.   This is underscored

by the fact that this was a trial by military judge alone.     The

record does not reveal that the military judge was perceptibly

swayed by defense counsel’s concessions.    To the contrary, in



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United States v. Quick, No. 03-0566/MC

the face of trial counsel’s argument that Quick be confined for

life, the military judge appears to have exercised independent

judgment in determining an appropriate sentence.

     While the Court of Criminal Appeals applied the wrong

standard in their prejudice analysis, the result does not

change.   Under the facts of this case, there is no reasonable

probability that, absent the error, the result would have been

different.   Quick has failed to meet his burden to establish

prejudice under the Strickland test.

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Quick, No. 03-0566/MC


       CRAWFORD, Chief Judge (concurring in the result):

       I agree with the majority that Appellant suffered no

prejudice from defense counsel’s allegedly deficient

performance.    I disagree, however, that “trial defense counsel

improperly conceded [during the sentencing argument] the

appropriateness of a dishonorable discharge” and that any period

of confinement in excess of forty years is excessive.      ___ M.J.

(8).   In my view, counsel’s concession was an appropriate

tactical decision aimed to ensure his credibility with the

court-martial and assess reasonable sentencing probabilities.

To this end, counsel would have been remiss not to concede the

appropriateness of a dishonorable discharge and a lengthy period

of confinement.   Accordingly, I concur only in the result of the

lead opinion.

       Both the Sixth Amendment and Article 27, Uniform Code of

Military Justice, 10 U.S.C. § 827 (2000), guarantee an accused

the significant right to effective assistance of counsel.

United States v. Fluellen, 40 M.J. 96, 98 (C.M.A. 1994).

Importantly, there are “countless ways to provide effective

assistance in any given case.”   Strickland v. Washington, 466

U.S. 668, 689 (1984).   As to effective assistance during the

closing and sentencing argument, “deference to counsel's

tactical decisions in his closing presentation is particularly

important because of the broad range of legitimate defense
United States v. Quick, No. 03-0566/MC


strategy at that stage.”    Yarborough v. Gentry, ___ U.S. ___,

___, 124 S.Ct. 1, 4 (2003)(per curiam).    Such arguments should

“sharpen and clarify the issues for resolution by the trier of

fact, but which issues to sharpen and how best to clarify them

are questions with many reasonable answers.”    Id. (citation and

internal quotation marks omitted).

     Defense counsel’s concession in the instant case was, in my

view, a legitimate tactical decision to which this Court should

afford great deference.     “[C]onfessing a client’s shortcomings

. . . is precisely the sort of calculated risk that lies at the

heart of an advocate’s discretion.     By candidly acknowledging

his client’s shortcomings, counsel might have built credibility

with the jury and persuaded it to focus on the relevant issues

in the case.”   Id. at 6.    The same tactic was famously employed

by Clarence Darrow in the Leopold and Loeb case:

     I do not know how much salvage there is in these two
     boys . . . . [Y]our Honor would be merciful if you
     tied a rope around their necks and let them die;
     merciful to them, but not merciful to civilization,
     and not merciful to those who would be left behind.

Id. at 6-7 (quoting Famous American Jury Speeches 1086 (Hicks

ed. 1925)(reprint 1990)).    In this vein, counsel’s concession

that Appellant’s conduct “deserves to be labeled as

dishonorable” and “that any period of confinement in excess of

forty years is excessive” was a calculated attempt to build

credibility with the judge.


                                   2
United States v. Quick, No. 03-0566/MC


     Moreover, defense counsel appropriately realized that given

the severity of Appellant’s offenses and the resultant injuries

to the victim, counsel’s best argument was to limit the

difference between the sentence cap on the pretrial agreement

and any sentence announced and approved by the convening

authority.   Appellant’s pretrial agreement permitted the

convening authority to suspend any confinement in excess of 30

years.   Suspension of confinement, unlike disproval of

confinement, can be revoked upon further misconduct by the

accused.   Given Appellant’s established history of criminal

offense and alcohol abuse, defense counsel astutely acknowledged

the likelihood of future misconduct, and therefore the

likelihood of the suspension’s revocation.   In short, by

conceding that confinement over 40 years would be excessive,

counsel in effect limited to ten years the additional

confinement Appellant would serve were his suspension revoked.

     Finally, counsel’s concession as to excessive confinement

was also a legitimate attempt to avoid an unfavorable life

sentence for Appellant.   Appellant would earn 10 days of “good

time” credit each month for his 30 year sentence, but no “good

time” credit for a life sentence.    U.S. Dep’t of Defense,

Instruction 1325.7, Administration of Military Correctional

Facilities and Clemency and Parole Authority, Enclosure 26.1.1-




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United States v. Quick, No. 03-0566/MC


.5 (July 17, 2001).∗      In this light, defense counsel not only

negotiated a favorable deal for Appellant, but by making a

credible sentencing argument, may well have avoided a sentence

of life or life without parole.

      Given the reasonable tactical motives behind defense

counsel’s concession, as well as the substantial deference this

Court should afford counsel when analyzing ineffective

assistance claims, I cannot find the concession improper.              On

the contrary, defense counsel’s actions on Appellant’s behalf

were entirely consistent with the “wide range of reasonable

professional assistance” considered to be effective.

Strickland, 466 U.S. at 689.        Concluding otherwise, as the

majority does, will result in a disservice to accuseds by

encouraging counsel to be timid in employing pro forma

sentencing arguments simply to avoid ineffectiveness claims.

Accordingly, I concur only in the lead opinion’s ultimate

result.




∗
  The current instruction is materially identical to the one in effect at the
time of trial.


                                      4
