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

        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 h e a v y
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
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O’CONNOR—ARMY 20130853

             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.




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O’CONNOR—ARMY 20130853

                                  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
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of Court
                                       Clerk of Court




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