

   
   
   
   U.S. v. Pfister



UNITED STATES, Appellee
v.
Brant D. PFISTER, Chief Warrant Officer Two
U.S. Army, Appellant
 
No. 99-0311
Crim. App. No. 9600589
 
United States Court of Appeals for the Armed
Forces
Argued January 11, 2000
Decided July 5, 2000
CRAWFORD, C.J., delivered the opinion of
the Court, in which GIERKE and EFFRON, JJ., and COX, S.J., joined. SULLIVAN,
J., filed an opinion concurring in the result.

Counsel
For Appellant: Captain Stephanie L. Haines
(argued);
Colonel Adele H. Odegard, Major Scott
R. Morris, and Captain Donald P. Chisholm (on brief); Colonel
John T. Phelps II, Captain Kirsten Campbell-Brunson, and Captain
Jodi E. Terwilliger-Stacey.
For Appellee: Captain Kelly D. Haywood
(argued); Lieutenant Colonel Eugene R. Milhizer and Major Patricia
A. Ham (on brief); Captain Arthur J. Coulter.
Military Judge: Robert F. Holland
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
 

Chief Judge CRAWFORD delivered the opinion
of the Court.
Pursuant to a pretrial agreement, appellant
pleaded guilty to 2 specifications of sodomy and 4 specifications of committing
indecent acts with his daughter, in violation of Articles 125 and 134,
Uniform Code of Military Justice, 10 USC §§ 925 and 934, respectively.
Accordingly, the Government dismissed a charge of rape, 1 specification
of sodomy, a charge of assault, 2 specifications of committing indecent
acts, and 2 specifications of adultery. Appellant was sentenced by officer
members to a dismissal, 20 years confinement, and total forfeitures. The
confinement portion of the sentence was limited to 8 years by the pretrial
agreement. The Court of Criminal Appeals affirmed the findings and sentence,
and we granted review of the following issue:

WHETHER THE STAFF JUDGE ADVOCATE DEPRIVED
APPELLANT OF AN OPPORTUNITY TO RESPOND TO NEW POST-TRIAL MATTERS BY: (1)
PRESENTING SAID NEW MATTERS TO THE CONVENING AUTHORITY ONLY ONE DAY AFTER
THE ARMY COURT OF CRIMINAL APPEALS DENIED APPELLANTS PETITION FOR EXTRAORDINARY
RELIEF IN THE NATURE OF A WRIT OF PROHIBITION TO EXCLUDE SAID NEW MATTERS,
WITHOUT FIRST NOTIFYING APPELLANTS COUNSEL OF THE COURTS DECISION, AND
(2) PRESENTING SAID NEW MATTERS TO THE CONVENING AUTHORITY WITHOUT FIRST
NOTIFYING APPELLANTS COUNSEL THAT APPELLANTS REQUEST THAT THE STAFF JUDGE
ADVOCATE WITHDRAW THE NEW MATTERS WAS DENIED; APPELLANTS DECISION TO DEFER
REBUTTAL OF THE SAID NEW MATTERS UNTIL AFTER RESOLUTION OF THE PENDING
PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF PROHIBITION
AND UNTIL AFTER RESOLUTION OF HIS PENDING REQUEST TO THE STAFF JUDGE ADVOCATE
TO WITHDRAW THE NEW MATTERS WAS NOT AN AFFIRMATIVE WAIVER; THEREFORE, WAIVER
DOES NOT APPLY.

For the reasons discussed herein, we affirm.
In response to the staff judge advocate (SJA)
recommendation prepared on September 4, 1996, appellant submitted a detailed
letter to the convening authority dated September 7, 1996, in his clemency
petition. In this letter, appellant stated:

My behavior was wrong, and caused pain and
confusion for our daughter....

* * *

Wendy [appellant's second wife], our family,
and friends, all support my release from confinement soon so the necessary
healing process can resume. In fact, Wendy, our family, friends, and subject
matter experts are shocked and saddened by the outcome of this case....
Not one of them felt confinement was warranted in this case, of any benefit
to society, or in the best interest of rebuilding a loving and caring family.

Apparently, in response to appellants clemency
petition, appellants first wife, Betty, the mother of the victim, submitted
a letter as a Victim Impact Statement dated October 24, 1996. This letter
rebutted appellants assertion that his family supported his release from
confinement by stating that his claim that the children wanted his early
release was "an outright lie." It said:

He is a man who on three occasions attempted
to murder me and threatened my death on other occasions. He was
violent to me and to the children, and he
was extremely emotionally manipulative to the point that one could not
trust a word from his mouth. He was once described by his own co-workers
in a security investigation as "a pathological liar" who was "believed
to be violent toward his wife." He was once accused of sexually molesting
his daughter when she was only 2 years old, but charges were not filed.

The Victim Impact Statement was included in an
addendum to the SJA recommendation and was served on appellant and defense
counsel on October 30, 1996. The next day, Captain (CPT) V replaced CPT
F, the trial defense counsel. On November 4, 1996, CPT V was granted a
delay before submitting the defense response to the SJA recommendation.
On November 11, 1996, appellant's request for an extension to file a new
clemency petition through CPT V was granted until December 1, 1996. On
November 12, 1996, CPT V moved to withdraw the previous defense submission
by CPT F.
CPT V submitted a second clemency petition
on December 2, 1996. That same day, the defense faxed a request to Major
(MAJ) Gross, Chief of Criminal Law in the SJA's office, requesting that
the Victim Impact Statement not be forwarded to the convening authority
for his review. In the alternative, the defense requested a delay until
the Army Court of Criminal Appeals decided whether to issue a writ of prohibition
to preclude the Victim Impact Statement from being sent to the convening
authority. On the fax cover sheet, CPT V asked MAJ Gross to advise her
of his decision regarding submission of the addendum as soon as possible
and indicated that she would be on temporary duty from December 3-7, 1996.
On December 3, 1996, appellant filed a petition
for extraordinary relief and for a stay of proceedings, as well as a supporting
brief in the Court of Criminal Appeals. Cpt V provided a copy of this to
the SJA. The petition was denied on December 4, and the next day the addendum
containing a redacted version of the Victim Impact Statement and the SJA
recommendation was forwarded to the convening authority. He took action,
reducing the sentence in conformance with the pretrial agreement.
On December 6, 1996, CPT V learned of the convening
authority's action. She was unaware of the Court of Criminal Appeals decision
or the convening authority's action until that time. Neither MAJ Gross
nor the SJA had attempted to contact her. On December 10, 1996, CPT V spoke
with MAJ Gross, who confirmed that the convening authority had acted on
December 5, 1996. MAJ Gross indicated that appellant had already received
clemency in the form of the pretrial agreement, which limited the confinement
to 8 years versus the 20 years adjudged in the case.
The defense now claims that they should have
been given a chance to rebut the redacted version of the Victim Impact
Statement. The defense was served a copy of the Victim Impact Statement
on October 30, and the convening authority took action on December 5. During
the approximately 33 days between those dates, CPT V submitted a second
clemency petition and filed a petition for extraordinary relief and for
a stay, as well as a supporting brief in the Court of Criminal appeals.
There was more than ample time for CPT V, who was so clearly familiar with
the facts, to prepare a rebuttal to the redacted version of the Victim
Impact Statement.
Additionally, CPT V did not seek a further
extension from the convening authority. The fact that she filed a petition
for extraordinary relief in the Court of Criminal Appeals did not relieve
her of the obligation either to apply for such an extension or to provide
the convening authority with specific rebuttal to the addendum. We conclude
that, under all these circumstances, her failure to do either constituted
waiver of such rebuttal.
Finally, we hold that there was no plain error
that would overcome this waiver. Plain error is an error that is clear
or obvious and materially prejudices the substantial rights of the accused.
United States v. Powell, 49 MJ 460, 464 (1998). Under the circumstances
described above, the decision of the convening authority to take his action
without appellant's rebuttal to the redacted statement did not constitute
clear or obvious error.
The decision of the United States Army Court
of Criminal Appeals is affirmed.


SULLIVAN, Judge (concurring in the result):
First, I do not believe this is a case involving
waiver. Waiver entails the "intentional relinquishment or abandonment of
a known right." United States v. Olano, 507 U.S. 725, 733 (1992).
Appellants counsel did not waive the claim of error in the Victim Impact
Statement attached to the staff judge advocates (SJA) recommendation because
she responded to it in a timely manner by: (1) requesting that the SJA
remove the material at issue; (2) filing an extraordinary writ petition
in the U.S. Army Court of Criminal Appeals; and (3) requesting that the
SJA delay action until the petition was reviewed.
In my opinion, appellants claim is really
one of ineffective assistance of counsel. Cf. United States v.
Pierce, 40 MJ 149 (CMA 1994). An appellant is entitled to effective
post-trial representation, which is judged under the Strickland v. Washington,
466 U.S. 668 (1984), standard. See, e.g., United States
v. Wiley, 47 MJ 158 (1997); cf. Evitts v. Lucey, 469
U.S. 387 (1985). The appellant must show that counsels performance was
deficient and that the deficient performance prejudiced appellant. See
Strickland, 466 U.S. at 687.
This case involves poor, but not ineffective,
lawyering. Defense counsel was aggressive and zealous in taking this post-trial
matter to the U.S. Army Court of Criminal Appeals by an extraordinary writ
process. However, defense counsel failed to take a crucial extra step by
only asking for a delay in submitting the SJAs recommendation to the convening
authority until the Court of Criminal Appeals acted. Defense counsel should
have also requested an extension of time to reply to the SJA recommendation.
See RCM 1106(f)(5), Manual for Courts-Martial, United States (1995
ed.).
I would resolve this case under the prejudice
prong of Strickland. "The defendant must show that there is a reasonable
probability that, but for counsels unprofessional errors, the result of
the proceeding would have been different." 466 U.S. at 694. Appellant has
not convinced me that the convening authority would have acted differently
had appellant been able to reply to the SJAs recommendation. Appellant
had already submitted various post-trial matters to the convening authority.
Defense counsels actions were not prejudicial
to appellant. To the contrary, defense counsels actions did result in
some relief regarding the SJA recommendation: the SJA redacted a portion
of the material at issue in the Victim Impact Statement. Accordingly, I
join the majoritys affirmance of the lower court opinion.


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