           UNITED STATES, Appellant and Cross-Appellee

                                    v.

                   Brandon T. ROSE, Airman Basic
           U.S. Air Force, Appellee and Cross-Appellant

                              No. 09-5003

                         Crim. App. No. 36508

       United States Court of Appeals for the Armed Forces

                         Argued April 3, 2012

                         Decided May 24, 2012

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and STUCKY, JJ., and EFFRON, S.J., joined.

                                 Counsel

For Appellant and Cross-Appellee: Lieutenant Colonel Linell A.
Letendre (argued); Colonel Don M. Christensen and Gerald R.
Bruce, Esq. (on brief).

For Appellee and Cross-Appellant: Dwight H. Sullivan, Esq.
(argued); Major Michael S. Kerr (on brief); Major Daniel E.
Schoeni.

Amicus Curiae for Appellee: Cherlyn Walden (law student)
(argued); Danielle Purcell (law student), Brooks Holland, Esq.
(supervising attorney) (on brief) –- for Gonzaga University
School of Law.

Military Judges: David F. Brash (court-martial) and Jennifer
Whittier (DuBay hearing)




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rose, 09-5003/AF 


     Judge RYAN delivered the opinion of the Court.

     Under Article 67(a)(2), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 867(a)(2) (2006), the Judge Advocate General

of the Air Force (TJAG) certified the following issue:

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN
     FINDING INEFFECTIVE ASSISTANCE OF COUNSEL IN THIS CASE.

We answer the question in the negative, albeit under different

reasoning than the United States Air Force Court of Criminal

Appeals (AFCCA).   Where, as here, a defendant’s reasonable

request for information regarding sex offender registration was

“a key concern” identified to defense counsel that “went

unanswered,” and if it had been correctly answered he would not

have pleaded guilty, we hold that he received ineffective

assistance of counsel.

     Moreover, in light of our decision in United States v.

Ballan, 71 M.J. 28 (C.A.A.F. 2012), we hold that it was obvious

error to omit the terminal element of Article 134, UCMJ, 10

U.S.C. § 934 (2006), from Specification 4 under Charge V, but

that there was no prejudice to Appellee’s substantial rights.1


                                                        
1
   On January 17, 2012, we granted the issue raised in Appellee’s
cross-petition:

     WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT
     FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
     STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN
     UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED
     STATES, AND THIS COURT’S OPINION IN UNITED STATES v.
     FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

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United States v. Rose, 09-5003/AF 


Therefore, we affirm the decision and order of the AFCCA setting

aside the findings of guilty to Specifications 1, 2, and 3 under

Charge V and the sentence, affirming the remaining findings of

guilty, and authorizing a rehearing.2

                                                          I.         PROCEDURAL HISTORY

             Consistent with his pleas, a military judge sitting as a

general court-martial convicted Appellee of attempted larceny,

disobeying an order, drunk driving, larceny, forgery,

housebreaking, indecent assault, and obstructing justice, in

violation of Articles 80, 92, 111, 121, 123, 130, and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 892,

911, 921, 923, 930, 934 (2006).3                                                            The military judge sentenced



                                                                                                                                                                                   

__ M.J. __ (C.A.A.F. 2012) (order granting review).
 
2
  Oral argument in this case was heard at Gonzaga University
School of Law, Spokane, Washington, as part of the Court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
3
  The indecent assaults occurred prior to October 1, 2007, the
effective date of the amendments to the UCMJ and
Manual for Courts-Martial, United States (MCM) made by the
National Defense Authorization Act for Fiscal Year
2006, Pub. L. No. 109-163, § 552, 119 Stat. 3136, 3256-63
(2006), so they were properly charged under Article 134, UCMJ.
See MCM, Punitive Articles Applicable to Sexual Assault Offenses
Committed Prior to 1 October 2007 app. 27 at A27-2 (2008 ed.).
     None of the specifications under Charge V alleged the
terminal element of Article 134, UCMJ.
 

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United States v. Rose, 09-5003/AF 


Appellee to a dishonorable discharge and confinement for twenty

months.   The convening authority approved the sentence.

     The long appellate history in this case began when Appellee

learned that he was required to register as a sex offender after

he completed his in-processing paperwork for confinement at

Scott Air Force Base.    As a result of his discovery and pursuant

to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),

Appellee claimed, inter alia, that he received ineffective

assistance of counsel.   In response to Appellee’s claim, Mr.

Connors, civilian defense counsel, and Captain Logan, detailed

military defense counsel, submitted affidavits to the AFCCA.

Unable to resolve the issue based on the information from the

affidavits, the AFCCA returned the record of trial to TJAG for

referral to the convening authority for a post-trial hearing in

accordance with United States v. DuBay, 17 C.M.A. 147, 37 C.M.R.

411 (1967).

     Relying on the facts developed at the DuBay hearing, the

AFCCA held that Appellee met his burden of proof to establish

ineffective assistance of counsel under both prongs of

Strickland v. Washington, 466 U.S. 668, 687 (1984) (requiring a

defendant to show deficient performance by counsel and “that the

deficient performance prejudiced the defense”).   United States

v. Rose, 67 M.J. 630, 636 (A.F. Ct. Crim. App. 2009).      The AFCCA

then set aside the findings of guilty as to the three indecent


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United States v. Rose, 09-5003/AF 


assault specifications (Specifications 1, 2, and 3 of Charge V)

and authorized a rehearing on the indecent assault findings and

the sentence.   Id. at 638.   On April 8, 2009, TJAG certified two

issues to this Court.4   Following oral argument, we set aside the

decision of the AFCCA and remanded to the lower court to obtain

an affidavit from Appellee’s original assistant military defense

counsel and to reconsider the issue of ineffective assistance of

counsel.   United States v. Rose, 68 M.J. 236 (C.A.A.F. 2009)

(summary disposition).

     After receiving the affidavit from Appellee’s original

trial defense counsel, the AFCCA, sitting en banc, found that it




                                                        
4
     Under Article 67(a)(2), UCMJ, TJAG certified the following
issues:

     I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
     IN DENYING THE UNITED STATES’ REQUEST THAT THE COURT ORDER
     AN AFFIDAVIT FROM APPELLEE’S ORIGINAL MILITARY DEFENSE
     COUNSEL.

     II. WHETHER AN “IMPRESSION” LEFT BY CIVILIAN DEFENSE
     COUNSEL THAT APPELLEE MAY NOT HAVE TO REGISTER AS A SEX
     OFFENDER AMOUNTED TO AN AFFIRMATIVE MISREPRESENTATION AND
     LED TO APPELLEE RECEIVING INEFFECTIVE ASSISTANCE OF
     COUNSEL.

United States v. Rose, 67 M.J. 402 (C.A.A.F. 2009) (certificate
for review filed).



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United States v. Rose, 09-5003/AF 


“add[ed] nothing.”5   United States v. Rose, No. ACM 36508 (f

rev), 2010 CCA LEXIS 251, at *2, 2010 WL 4068976, at *1 (A.F.

Ct. Crim. App. June 11, 2010) (en banc).    The AFCCA reconsidered

its prior decision and again held that Appellee met his burden

under both prongs of the Strickland test.     2010 CCA LEXIS 251,

at *13, 2010 WL 4068976, at *5.   On July 12, 2010, TJAG filed

another certificate for review, 69 M.J. 198 (C.A.A.F. 2010), and

we again set aside the AFCCA’s decision because it acted on the

findings with respect to the indecent assault specifications but

not on the remaining findings and the sentence.      United States

v. Rose, 69 M.J. 426 (C.A.A.F. 2010) (summary disposition).

Thus, we remanded the case to the lower court to complete its

review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006), as

to the remaining findings and the sentence.    Id.

     In response, the AFCCA issued its third opinion in this

case, and, consistent with its initial opinion finding

ineffective assistance of counsel, it once again dismissed the

indecent assault specifications, affirmed the remaining

findings, and reassessed the sentence from twenty to seventeen

months of confinement and a dishonorable discharge.     United
                                                        
5
     In his affidavit, Mr. (formerly Captain) George stated, “With
regard to any discussions regarding sex offender registration, I
have no recollection, one way or the other, as to whether
[Airman Basic (AB)] Rose and I discussed this matter prior to AB
Rose releasing me as his [area defense counsel].” 2010 CCA
LEXIS 251, at *2, 2010 WL 4068976, at *1.



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United States v. Rose, 09-5003/AF 


States v. Rose, No. ACM 36508 (rem), 2011 CCA LEXIS 349, at *4,

2011 WL 6010908, at *1 (A.F. Ct. Crim. App. Mar. 9, 2011) (en

banc).   The Government then filed a motion to reconsider, which

the AFCCA granted.   In an unpublished order, the AFCCA noted

that the findings of guilty for the indecent assault

specifications had already been set aside in its February 2009

opinion, so it affirmed the remaining findings, set aside the

sentence, and authorized a rehearing on the indecent assault

specifications and the sentence.       United States v. Rose, No. ACM

36508 (rem), slip op. at 1-2 (A.F. Ct. Crim. App. Aug. 15, 2011)

(en banc) (unpublished order).

     On September 14, 2011, TJAG certified the instant issue,

asking us to consider whether the AFCCA erred in finding

ineffective assistance of counsel.      Appellee then filed, and we

granted, a cross-petition seeking review in light of United

States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), of Charge V,

alleging violations of Article 134, UCMJ, where the terminal

element was omitted from the language of the specifications.

                      II.   FACTUAL BACKGROUND

     The following facts are relevant to Appellee’s decision to

plead guilty to the indecent assault specifications.6



                                                        
6
     For a more detailed account of the underlying offenses, see
Rose, 67 M.J. at 631-32.



                                   7
United States v. Rose, 09-5003/AF 


      In 2005, Appellee was charged with committing numerous

offenses.   He was initially represented during the early stages

of the investigation and at the first Article 32, UCMJ, 10

U.S.C. § 832 (2006), hearing by Captain George and Mr. Connors,

a civilian defense counsel.    Appellee later released Captain

George, who was replaced by Captain Logan.   The DuBay military

judge noted that Captain Logan was “a relatively new [defense

counsel] at the time” who was “very deferential to Mr. Connors’

handling of [the] case.”   Before trial began, Appellee submitted

a proposed pretrial agreement in which he agreed to plead guilty

to all of the offenses except for the three indecent assault

specifications listed under Charge V as Specifications 1, 2, and

3.   The convening authority rejected this proposal.

      Appellee testified that he was worried about pleading

guilty to indecent assault because he did not want to register

as a sex offender, and he communicated his concern multiple

times to his defense counsel.   This testimony was corroborated.

For example, a defense paralegal testified that Appellee asked

him on the telephone about sex offender registration on “two or

three occasions.”   And Captain Logan testified that he recalled

Appellee telling him, “I won’t plead guilty if I have to

register as a sex offender.”    Indeed, the “[o]ne thing” that

Captain Logan recalled that Appellee “made clear” –- “the one

thing from the case” that stuck out to him -- was that


                                  8
United States v. Rose, 09-5003/AF 


“[Appellee] wasn’t going to plead to the indecent assaults if he

had to register as a sex offender.”

     Mr. Connors viewed the alleged indecent assaults as “fairly

innocuous types of charges” that amounted to “just foolery.”     He

testified that, while the issue of sex offender registration was

“raised at some point” during his discussions with Appellee,

neither he nor Captain Logan ever directly told Appellee that he

would have to register as a sex offender if he pleaded guilty.

In fact, Mr. Connors testified that he “[did not] remember a

complete dispositive answer being ever elicited from myself or

the other counsel.”   Nevertheless, Mr. Connors acknowledged that

he would not have advised Appellee to plead guilty if he had

known that Appellee would have to register as a sex offender.

At no point did any defense counsel investigate the answer to

Appellee’s question regarding sex offender status.

     Appellee recalled that Mr. Connors said that “he was not

sure” about sex offender registration, but that Mr. Connors did

not “see [a reason] why,” based on the allegations, it “would be

a registerable offense.”   Captain Logan simply deferred to Mr.

Connors.   Relying on the responses from his counsel, Appellee

believed that he would not have to register.    He testified:

“The only thing I understood was that . . . I would not have to

[register];” and “the way he made it seem was I wouldn’t have to

[register] by everything that he was saying.”   The DuBay


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United States v. Rose, 09-5003/AF 

military judge found the testimony truthful and credible, and

she concluded that Appellee’s question regarding sex offender

registration was “a key concern” that “went unanswered” in this

case.    Additionally, she concluded that Appellee’s “impression

that he would not have to register” was “reasonable under the

circumstances.”

        In accordance with Mr. Connors’s recommendation, Appellee

entered into a pretrial agreement and agreed to plead guilty to

all of the charges.     Relevant to Appellee’s cross-petition, the

military judge listed and defined both clauses of the terminal

element for each Article 134, UCMJ, specification during the

plea colloquy.    The military judge had Appellee describe the

underlying facts and explain why his conduct was service

discrediting or prejudicial to good order and discipline for

each specification.     Ultimately, the military judge found the

pleas to be provident, and he accepted them.

                             III.   DISCUSSION

                  A.   Ineffective Assistance of Counsel

        To establish ineffective assistance of counsel, “an

appellant must demonstrate both (1) that his counsel’s

performance was deficient, and (2) that this deficiency resulted

in prejudice.”    United States v. Green, 68 M.J. 360, 361

(C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687).      The

Strickland test applies in the context of guilty pleas where an


                                    10
United States v. Rose, 09-5003/AF 

appellant challenges the plea based on ineffective assistance of

counsel.   Hill v. Lockhart, 474 U.S. 52, 58 (1985).   And the

Supreme Court recently reaffirmed that the entry of a guilty

plea is a critical stage of the litigation, where a criminal

defendant is entitled to effective assistance of counsel.

Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012); Lafler v.

Cooper, 132 S. Ct. 1376, 1384 (2012); Padilla v. Kentucky, 130

S. Ct. 1473, 1480-81 (2010) (noting that a defendant is entitled

to “‘the effective assistance of competent counsel’” before

deciding to plead guilty (quoting McMann v. Richardson, 397 U.S.

759, 771 (1970))); cf. United States v. St. Blanc, 70 M.J. 424,

428 (C.A.A.F. 2012).

     Ineffective assistance of counsel claims involve mixed

questions of law and fact:   “[t]his Court reviews factual

findings under a clearly erroneous standard, but looks at the

questions of deficient performance and prejudice de novo.”

United States v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008).

With respect to the first prong, whether counsel’s performance

was deficient, courts “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.”    Strickland, 466 U.S. at 689; see also

Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (“Even under

de novo review, the standard for judging counsel’s

representation is a most deferential one.”).   With regard to the


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United States v. Rose, 09-5003/AF 

second prong, an appellant in a guilty plea case establishes

prejudice by showing that, but for counsel’s deficient

performance, there is a “‘reasonable probability’” that “‘he

would not have pleaded guilty and would have insisted on going

to trial.’”    United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F.

2007) (quoting United States v. Alves, 53 M.J. 286, 289

(C.A.A.F. 2000)); see also Hill, 474 U.S. at 59.

        In order to establish deficient performance, Appellee must

establish that counsel’s “representation amounted to

incompetence under ‘prevailing professional norms.’”

Harrington, 131 S. Ct. at 788 (quoting Strickland, 466 U.S. at

690).    While we indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance, there are nevertheless “important guides” by which

we must measure that conduct, one of which is the Rules of

Professional Conduct.    Frye, 132 S. Ct. at 1408 (“Though the

standard for counsel’s performance is not determined solely by

reference to codified standards of professional practice, these

standards can be important guides.”).

        Under the American Bar Association (ABA) Model Rule of

Professional Conduct 1.4 and the Air Force (AF) Rule of

Professional Conduct 1.4 (2005), an attorney has a duty to

“promptly comply with reasonable requests for information.”




                                  12
United States v. Rose, 09-5003/AF 

In this case, it is undisputed that Appellee requested

information from his defense counsel asking whether he would

have to register as a sex offender if he pleaded guilty to the

indecent assault offenses, and that, at a minimum, his attorney

never complied with his request for information.   Further, the

DuBay military judge found as fact that Appellee raised the

issue of registering as a sex offender as “a key concern” with

his counsel.   And, tellingly, Mr. Connors acknowledged that he

would not have advised Appellee to plead guilty if he had known

that Appellee would have to register as a sex offender, but

never undertook to investigate the actual answer to the question

posed by Appellee.   Yet while Mr. Connors never investigated or

correctly answered the question that was his client’s key

concern, he nonetheless advised Appellee to plead guilty.

     While counsel’s failure to answer a specific request for

information violates the duty to “promptly comply with

reasonable requests for information” under the ABA Model Rules

of Prof’l Conduct R. 1.4 and the AF Rule of Prof’l Conduct 1.4,

not every failure to answer a client’s question will rise to the

level of deficient performance under the stringent Strickland

standard.   However, based on the facts of this case, it did.   We

hold that counsel’s failure to comply with a reasonable request

for information about sex offender registration amounted to

deficient performance where counsel knew that this was a “key


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United States v. Rose, 09-5003/AF 

concern,” and where, had the request been investigated and

answered, even counsel acknowledges that his advice would have

been different.

     To prevail on his claim of ineffective assistance of

counsel, Appellee must also demonstrate prejudice.    In the

context of a guilty plea, the prejudice question is whether

“there is a reasonable probability that, but for counsel’s

errors, [the defendant] would not have pleaded guilty and would

have insisted on going to trial.”7    Hill, 474 U.S. at 59; Tippit,

65 M.J. at 76.    Here, the DuBay military judge’s findings

resolve the question of prejudice.    It is undisputed that

Appellee’s defense counsel failed to provide him with accurate

advice regarding sex offender registration even though he

requested it before he made the decision to plead guilty.      The

DuBay military judge found Appellee’s testimony to be

“truthful[] and credibl[e]” –- he would not have pleaded guilty




                                                        
7
     The Government argues that, because Appellee has “not
registered as a sex offender in any state” since his conviction,
he cannot show prejudice under the second prong of Strickland.
Even though it is unclear from the record whether Appellee has
registered, the test for prejudice is not whether he has
registered, but rather whether there is a reasonable probability
that he would not have pleaded guilty and insisted on going to
trial but for counsel’s deficient performance. See Hill, 474
U.S. at 59; Tippit, 65 M.J. at 76. In this case the record is
clear on that point.



                                 14
United States v. Rose, 09-5003/AF 

“if he had to register as a sex offender.”8   This finding of fact

is not clearly erroneous in a context where Appellee requested

information regarding sex offender status on several occasions,

did not agree to plead guilty to the indecent assault charges in

his first proposed pretrial agreement, made clear to his counsel

that the information was important to him, and was nonetheless

advised to plead guilty.

     Based on the facts of this case, we hold that Appellee has

established ineffective assistance of counsel because he has

“demonstrate[d] both (1) that his counsel’s performance was

deficient, and (2) that this deficiency resulted in prejudice.”

Green, 68 M.J. at 361.

     B.   Failure to Allege Article 134, UCMJ, Terminal Element

     Appellee’s court-martial was in 2005.    Specification 4

under Charge V, alleging obstruction of justice as a violation

of Article 134, UCMJ, was “legally sufficient at the time of

trial and [is] problematic today only because of intervening

changes in the law.”   See Ballan, 71 M.J. at 34 n.4.   When

defects in a specification are raised for the first time on

appeal because of intervening changes in the law, we test for
                                                        
8
     The Government contends that Appellee “was willing to enter
into a quite favorable pretrial agreement (PTA) and plead guilty
to the indecent assaults knowing that his sex offender
registration question had gone unanswered.” However, the
findings of fact from the DuBay hearing do not support this
argument, as in context it is obvious that Appellee thought that
he would not have to register.

                                15
United States v. Rose, 09-5003/AF 

plain error and will only dismiss the specification if there is

prejudice.   Id. at 34.   In this case, we find error but no

prejudice.   See id. at 34-36.

     During the plea colloquy, the military judge listed and

defined clauses 1 and 2 of the terminal element for

Specification 4 under Charge V, and Appellee described his

actions and explained why his conduct was service discrediting

and prejudicial to good order and discipline.    Thus, the record

unambiguously reflects that Appellee “knew under what clause[s]

he was pleading guilty and clearly understood the nature of the

prohibited conduct as being in violation of clause[s 1 and] 2,

Article 134.”   Id. at 35 (quotation marks and citations

omitted).    As a result, there was no prejudice to Appellee’s

substantial rights.

                           IV. CONCLUSION

     The certified question is answered in the negative.     Under

the granted issue, we hold that there was error but no prejudice

to Appellee’s substantial rights.     We affirm the decision and

order of the United States Air Force Court of Criminal Appeals,

setting aside the findings of guilty to Specifications 1, 2, and

3 under Charge V and the sentence, affirming the remaining

findings of guilty, and authorizing a rehearing.    The record of

trial is returned to the Judge Advocate General of the Air Force




                                 16
United States v. Rose, 09-5003/AF 

for remand to an appropriate convening authority for further

proceedings.




                                17
