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Tim Bilecki

DC not ineffective

In United States v. Molina, 68 M.J. 532 (C.G.C.C.A. 2009) the court had to determine if (i) DC was ineffective for telling his client that if he pled guilty, he would not have to register as a sex offender when in actuality he would need to register? (ii) DC was ineffective for not introducing evidence against one of the Government witnesses/victim? The court ruled in the negative on both issues. Based on the mutual misunderstanding of the requirement to register as a sex offender under state law, Molina’s pleas of guilty are improvident to the extent that the conviction under Charge IV and its specification triggered a requirement to register, requiring relief. The court dismissed the problematic charge and any IAC that may have existed because of the faulty interpretation disappeared with it as well. The DC was also not ineffective for failing to introduce evidence against the witness because the witness either testified about the information, thus bringing it to the court’s attention on her own accord, or was irrelevant to sentencing and there was a real question regarding the credibility of the assertions. Finally, even if it were relevant and true, it was inadmissible under a variety of evidentiary rules.

In United States v. Thompson, 69 M.J. 516 (A.F.Ct.Crim.App. 2010) was whether DC was ineffective for failing to object to the admission of Thompson’s co-actors pretrial agreements. The court held that counsel is presumed competent so there will be no second-guessing of counsel’s strategic decisions. Counsel had a tactical reason to not object to co-actors’ pretrial agreements in order to highlight bias and in the hope that members would sua sponte engage in sentence comparison. Just because counsel could have objected, does not mean they should have objected, let alone must have objected in order to avoid an IAC claim. “Appellant has fallen woefully short” in providing any information to cause the appellate court to act on his behalf.

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