United States v. Cooper

21-0150/NA. United States, Appellee/Cross-Appellant v. Paul E. Cooper, Appellant/Cross-Appellee. CCA 201500039. Notice is given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date.
 
DID THE LOWER COURT ERR APPLYING UNITED STATES V. CHIN, 75 M.J. 220 (C.A.A.F. 2016), (A) AS A PREREQUISITE TO CONSIDERING INEFFECTIVE ASSISTANCE OF COUNSEL, AND (B) TO DISREGARD THE KNOWING, VOLUNTARY, AND R.C.M. 905 WAIVERS, OF INDIVIDUAL MILITARY COUNSEL?

In 2014, Appellant was convicted, contrary to his pleas, of three specifications of sexual assault and one specification of abusive sexual contact, in violation of Article 120, Uniform Code of Military Justice [UCMJ]. In 2015, this Court ordered a DuBay hearing to ascertain whether Appellant's trial defense counsel [TDC] was ineffective in failing to submit Appellant's request for a certain Individual Military Counsel [IMC]. The DuBay military judge found that Appellant did make an IMC request to his TDC, who did not properly forward it for action by the appropriate approval authority, and that the IMC would have been reasonably available for his trial. Based on that, in 2018 we set aside the findings and sentence and remanded the case for a new trial. But the Judge Advocate General of the Navy certified the case to the Court of Appeals for the Armed Forces [CAAF], asserting, among other things, that during the trial, Appellant waived his right to an IMC during a colloquy with the military judge. CAAF agreed that Appellant waived his right to an IMC, declined to reach the remaining certified issues, and remanded to this Court to resolve the remaining assertions of error, which include whether Appellant's TDC was ineffective for failing to submit his IMC request.
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Now that this case is before us for a second time, we use our authority under Article 66, UCMJ, as expressed by CAAF in United States v. Chin, to disregard Appellant's waiver and find ineffective assistance of counsel by the TDC, find material prejudice to Appellant's substantial statutory right to IMC, set aside the findings and sentence, and remand for a new trial.

United States v. Cooper, No. 201500039, 2020 CCA LEXIS 440, at *1-3 (N-M Ct. Crim. App. Dec. 10, 2020).

Cheers, Phil Cave