                        UNITED STATES, Appellee

                                      v.

        Frank J. OSHESKIE, Machinist’s Mate Second Class
                      U.S. Navy, Appellant

                                No. 05-0165

                       Crim. App. No. 200001296

       United States Court of Appeals for the Armed Forces

                     Argued January 10, 2006

                     Decided August 14, 2006

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




                                  Counsel

For Appellant: Lieutenant Aimee M. Cooper, JAGC, USNR (argued);
Captain James Valentine, USMC (on brief).

For Appellee: Captain Roger E. Mattioli, USMC (argued);
Commander Charles N. Purnell, JAGC, USN, and Lieutenant
Guillermo J. Rojas, JAGC, USNR (on brief).


Military Judge:   Robert W. Redcliff




         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Osheskie, No. 05-0165/NA

     Judge CRAWFORD delivered the opinion of the Court.

     In accordance with his plea, Appellant was convicted by a

military judge at a general court-martial of murder while

engaging in an act inherently dangerous to another in violation

of Article 118(3), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 918(3) (2000).   The Government proceeded to trial on

the greater offense of unpremeditated murder in violation of

Article 118(2), UCMJ, however, Appellant was found not guilty of

this offense.   Appellant was sentenced to confinement for

twenty-seven years, forfeiture of all pay and allowances,

reduction to E-1, and a dishonorable discharge.   Pursuant to the

terms of the pretrial agreement, the convening authority

suspended all confinement in excess of nineteen years from the

date of his action, suspended the forfeitures of pay for

nineteen years,1 and approved the remainder of the sentence with

the exception of the dishonorable discharge.

                      STATEMENT OF THE ISSUES

     On September 15, 2005, this Court granted review of the

following issues:

     I.   WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT
          APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL

1
  Appellant has not challenged the terms of this suspension.
Also the Government has not attempted to vacate this suspension.
It is not presently necessary that we address whether the
suspension of forfeitures for this period was an “unreasonably
long” period of probation, which is prohibited by Rule for
Courts-Martial. 1108(d). See Spriggs v. United States, 40 M.J.
158, 162-63 (C.M.A. 1994).

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United States v. Osheskie, No. 05-0165/NA

         WHEN THE TRIAL DEFENSE COUNSEL FAILED TO
         ADEQUATELY INVESTIGATE THE FACTS AND CIRCUMSTANCES
         OF HIS CASE AS WELL AS A POTENTIAL DEFENSE TO THE
         CHARGE OF PREMEDITATED MURDER. IN DOING SO, THE
         LOWER COURT EXPRESSED A STATEMENT OF CONFIDENCE IN
         APPELLANT’S GUILT THAT WAS BASED UPON EVIDENCE
         RELATED TO A CHARGE OF WHICH APPELLANT WAS
         ACQUITTED.2

     II. WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO
         TIMELY REVIEW WHEN ALMOST FIVE YEARS PASSED
         BETWEEN THE DATE OF SENTENCE AND COMPLETION OF
         REVIEW PURSUANT TO ARTICLE 66, UNIFORM CODE OF
         MILITARY JUSTICE.

                        STATEMENT OF FACTS

     Appellant was stationed in Pearl Harbor, Hawaii, as a

Machinist’s Mate Second Class.   While stationed there, Appellant

lived in base housing with his wife and two children, including

the victim, AO, Appellant’s daughter, who was three and a half

months old.   The events in this case occurred on the morning of

May 10, 1998.   The night before, Appellant had been up with AO


2
  Appellant’s assertion that the lower court erroneously
considered evidence related to a charge of which Appellant was
acquitted must be considered in context. As the Government
reserved its right to try to prove, and went forward with, the
greater charge of intentional murder (pursuant to Article
118(2), UCMJ), the lower court had a complete record to review
in determining whether Appellant received effective assistance
of counsel. Appellant told his trial defense counsel about
using the “laying of the hands” method to put his children to
sleep on prior occasions. The lower court sought and received
affidavits from both trial defense counsels. In determining
whether it was error for the trial defense counsel not to raise
this defense, the lower court was able to look at what evidence
was presented against Appellant and, therefore, what effect, if
any, this could have had on his case. We reject Appellant’s
assertion that the lower court erred in its consideration of the
evidence of record in evaluating his ineffective assistance of
counsel claim.

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United States v. Osheskie, No. 05-0165/NA

twice.   According to Appellant, because May 10, 1998, was

Mother’s Day, he let his wife sleep in and made her breakfast in

bed.   At roughly 10:30 a.m., AO again began to cry and Appellant

went to attend to her.   Appellant contends he was frustrated and

tired because his wife rarely assisted with the child care even

though Appellant worked all week.     Appellant notes he placed AO

face down in her crib, covered her with a blanket, and placed

his left hand between her shoulder blades, holding her down with

his left hand in an attempt to make her lie still.    Appellant

admits to feeling her struggle but continued to apply pressure

until she was still and quiet.   Although he claims he was

concerned for AO, Appellant left the room for approximately

thirty minutes.   At that point, Appellant looked in on AO.

Finding her unresponsive, Appellant performed CPR on AO until

paramedics arrived.   AO could not be revived and was pronounced

dead at the hospital.

                               ISSUE I

       This Court reviews ineffective assistance of counsel claims

de novo.   United States v. Wiley, 47 M.J. 158, 159 (C.A.A.F.

1997).   In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court established the following test for determining

ineffective assistance of counsel:

       A convicted defendant’s claim that counsel’s
       assistance was so defective as to require reversal of
       a conviction or death sentence has two components.
       First, the defendant must show that counsel’s


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United States v. Osheskie, No. 05-0165/NA

     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 or death sentence resulted from a
     breakdown in the adversary process that renders the
     result unreliable.

Id. at 687.   This Court has followed the Strickland analysis

when dealing with claims of ineffective assistance of counsel.

United States v. Burt, 56 M.J. 261, 264 (C.A.A.F. 2002).

     The Strickland test governs ineffective assistance of

counsel claims in cases involving guilty pleas.   United States

v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000).    Because this is a

guilty plea case, Appellant must show not only that his counsel

was deficient but also that “‘there is a reasonable probability

that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.’”   Id. at 289

(quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)).    United

States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997), furnished a number

of circumstances where, despite an appellant’s submission of an

affidavit, this Court determined it could independently resolve

the factual and legal issues in the case.   Id. at 248.    One of

those circumstances is, “[I]f the affidavit is factually

adequate on its face but the appellate filings and the record as




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United States v. Osheskie, No. 05-0165/NA

a whole ‘compellingly demonstrate’ the improbability of the

facts.”    Id.   This is the situation we find before us today.

     Appellant makes two basic assertions of inadequate

performance of counsel:

     (1)    defense counsel did not adequately investigate the

circumstances of AO’s death and potential defenses, such as

accident or mistake, that might have resulted in his acquittal

or mitigated the seriousness of the finding of guilty, including

learning that the “laying of the hands” technique is a medically

accepted method for calming crying children; and

     (2)    defense counsel did not advise Appellant of his right

to plead guilty without a pretrial agreement to lesser included

offenses, which included involuntary manslaughter and negligent

homicide.   We address these claims in order.

Failure to Investigate

     Appellant contends that he received ineffective assistance

of counsel because his trial defense counsel did not investigate

the “laying of the hands” child care technique.3    In their post-

trial affidavits, both members of Appellant’s trial defense team

admitted that they did not investigate the “laying of the hands”




3
  Appellant asserts that his actions that resulted in AO’s death
were in line with an accepted child care technique called
“laying of the hands” in which a parent applies light pressure
to a child’s back in order to calm the child so that he or she
can sleep.

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United States v. Osheskie, No. 05-0165/NA

technique.   However, this does not amount to an ineffective

assistance of counsel.

       In United States v. Brownfield, 52 M.J. 40, 42 (C.A.A.F.

1999), this Court ruled that, “Defense counsel must perform a

reasonable investigation, or make a reasonable decision that an

avenue of investigation is unnecessary.”    This principle was

first explained by the Supreme Court in Strickland, 466 U.S. at

691.   In the case at bar, it is clear that Appellant’s trial

defense counsel determined that investigating the “laying of the

hands” technique was unnecessary.     As Mr. Richard M. Harper II

(formerly lieutenant) stated in his affidavit:

       I did not investigate whether light rubbing or “the
       laying of hands” had received the imprimatur of
       professional acceptance as a method of soothing or
       quieting a fussy infant. After my many conversations
       with MM2 [Machinist’s Mate] Osheskie, it was my
       understanding that MM2 Osheski[e] did not merely lay
       his hands on [AO], but rather pushed her so hard into
       the mattress that he knew that his actions were
       inherently dangerous to [AO].

The defense team did not make an arbitrary decision not to

investigate the “laying of the hands” technique.

       Lieutenant (LT) Marcus N. Fulton described how the

defense team reasonably determined this avenue did not need

further investigation:

       During a pretrial interview in my office, Dr. Ophoven
       [a Government expert] told me that Petty Officer
       Osheskie would have seen AO flail about with her body,
       arms and legs and struggle to move her head and get
       air. I was told Petty Officer Osheskie would have
       been able to hear her cry through the mattress, crying


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United States v. Osheskie, No. 05-0165/NA

     she described to me as “high gear” crying or
     screaming. Dr. Ophoven told me that a great deal of
     force would have been necessary to smother [AO]. Dr.
     Ophoven told me that this would have likely gone on
     for two minutes or more, a duration with which other
     physicians I interviewed agreed. With respect to his
     statement that he had [previously used the “laying of
     hands” technique with his older child when he] pressed
     on his son’s back, I believed that either he had
     applied only a soothing amount of pressure, or that he
     had smothered [his son] to the point of
     unconsciousness without killing him. I did not view
     either possibility as helpful in terms of showing that
     Petty Officer Osheskie did not commit an inherently
     dangerous act with wanton disregard of human life when
     he pressed [AO]’s face into the mattress.

According to Appellant’s trial defense

counsel, they did not find the “laying of the hands” technique a

plausible defense given the facts of the case, based on

interviews with expert witnesses and the statements of

Appellant.   The amount of force and time required to kill AO, as

well as the physical distress AO would have demonstrated when

Appellant was holding her face into the mattress, negated the

need to pursue a “laying of the hands” theory for AO’s death.

     During the providence inquiry, Appellant admitted to the

elements of Article 118(3), UCMJ, which would have made

investigation into the “laying of the hands” theory irrelevant

because he stated that he knew “that death was a probable

consequence” of his actions.   The military judge fulfilled his

duty in ensuring a knowing, voluntary guilty plea during the

inquiry:




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United States v. Osheskie, No. 05-0165/NA

     MJ: Can you explain to me, in your own words, if you
     can, how it is that your act was inherently dangerous,
     under these circumstances? What is it that you did
     which would be inherently dangerous, under these
     circumstances, to someone the size of [AO]?

     ACC: I was well larger than [AO]. She was young.
     She was definitely not fully developed. She didn’t
     have the strength to fight me. She couldn’t
     verbalize, either. She couldn’t say it hurt.

Appellant goes on to admit that he knew his actions

were inherently dangerous to AO.       Appellant’s

statements during the providence inquiry are consistent with his

trial defense counsels’ affidavits, not his own.

     The decision not to investigate further was reasonably

made, and therefore there was no deficiency in counsel

performance.   See United States v. Scott, 24 M.J. 186, 192-93

(C.M.A. 1987) (concluding counsel failed to investigate

adequately).   We need not address the second prong of the

Strickland analysis.

Advice of Right to Plead Guilty to Lesser Included Offenses

     In his affidavit, Appellant states, “At no time was I

advised that I could plead guilty to a lesser-included offense

such as negligent homicide or involuntary manslaughter without

an agreement with the convening authority.      This option was

never explained to me prior to trial.”

     Appellant’s trial defense counsel told a different story.

As stated above, both of Appellant’s trial defense counsels

submitted affidavits to the court below.      Regarding Appellant


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United States v. Osheskie, No. 05-0165/NA

pleading guilty to either a violation of Article 119, UCMJ, or

Article 134, UCMJ, 10 U.S.C. § 934 (2000), Mr. Harper wrote:

     I completely disagree with MM2 Osheskie’s statement
     that we did not advise him he could plead to these
     lesser included offenses without a pretrial
     agreement. On more than one occasion, when MM2
     Osheskie expressed exasperation at having to plead
     guilty to Art. 118(3) in order to obtain a pretrial
     agreement limiting confinement, we informed MM2
     Osheskie that he could plead guilty to a lesser
     offense without a pretrial agreement. We also
     informed MM2 Osheskie of the government’s statement
     that if MM2 Osheskie [pled] blind to a lesser
     included offense, the government would go forward in
     an attempt to prove premeditated murder.

Appellant’s other trial defense counsel corroborated Mr.

Harper’s statements.   In his own affidavit, LT Fulton wrote:

     During the course of preparation for the case, we
     reviewed with Petty Officer Osheskie what his options
     were concerning the case. Among the options we
     discussed were the possibilities that he could plead
     to one of the lesser included offenses of Article 118
     such as Article 119 involuntary manslaughter or
     Article 134 negligent homicide. We informed him that
     he would not receive the benefit of an agreed to cap
     on punishment, and that if he was found guilty as
     charged he would be facing a mandatory minimum
     sentence of confinement for life.

Appellant presents no evidence, other than his own statements,

to prove that trial defense counsel did not explain that he

could plead guilty to a lesser included offense.   In light of

both trial defense counsels’ affidavits, Appellant cannot carry

his burden to show a deficiency based on this claim.   Defense

counsels’ responding affidavits, taken in context with the

record as a whole, particularly Appellant’s own statements



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United States v. Osheskie, No. 05-0165/NA

during the providence inquiry regarding his satisfaction that he

had considered any possible defense arising from the

circumstances, demonstrate the improbability of his assertion.

See Ginn, 47 M.J. at 248 (no affidavit required under the

principles set forth).

                             ISSUE II

     We review claims of post-trial and appellate delay using

the four-factor analysis from Barker v. Wingo, 407 U.S. 514, 530

(1972).   United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.

2006).4   If there has been a denial of due process, an appellant

is entitled to relief unless the court is convinced that the

error was harmless beyond a reasonable doubt.   United States v.

Toohey, 63 M.J. ___ (24) (C.A.A.F. 2006).   Where we can

determine that any violation of the due process right to speedy

post-trial review and appeal is harmless beyond a reasonable

doubt, we need not undertake the four-factor Barker analysis

prior to disposing of that post-trial or appellate delay issue.

See United States v. Allison, 63 M.J. ___ (15) (C.A.A.F. 2006).

In this case, we conclude that even if Appellant was denied his

due process right to speedy review and appeal, that error is

harmless beyond a reasonable doubt and no relief is warranted.




4
  We apply the analysis from the majority opinion in Moreno, but
see Moreno, 63 M.J. at 144 (Crawford, J., concurring in part and
dissenting in part).

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United States v. Osheskie, No. 05-0165/NA

                           CONCLUSION

     Appellant has failed to prove either prong of the

Strickland test with respect to his allegations of ineffective

assistance of his trial defense counsel.    Appellant’s trial

defense counsel were competent in their representation and there

has been no showing that Appellant was prejudiced by the

counsels’ actions and advice.   In fact, Appellant’s trial

defense counsel, through the pretrial agreement, saved Appellant

from one-third of his adjudged sentence.    Therefore, pursuant to

our decision in Ginn, 47 M.J. at 248, we hold that the record as

a whole “compellingly demonstrate[s]” the improbability of

Appellant’s post-trial affidavit.    Accordingly, the decision of

the United States Navy-Marine Corps Court of Criminal Appeals is

affirmed.




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