In this post from last August, I discussed the Army CCA’s opinion in United States v. Sickels, No. 20110110 (A.Ct.Crim.App. Jul. 23, 2013) (link to unpub. op.) that set aside an approved sentence of life without the possibility of parole that was adjudged by members after they convicted Appellant, contrary to his pleas, of various sexual offenses related to his “rape, sodomy, and sexual assault of his two daughters.” Slip op. at 2. The CCA took this action after finding ineffective assistance by unidentified civilian and military defense counsel in the sentencing phase of the court-martial.
Then, in October, the Army JAG certified the case to CAAF with the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT DEFENSE COUNSEL’S INVESTIGATION AND PRESENTATION OF A SENTENCING CASE WAS INEFFECTIVE.
Last Wednesday, CAAF summarily affirmed the CCA:
No. 14-5001/AR. U.S. v. Joshua R. SICKELS. CCA 20110110. On consideration of the issue certified by the Judge Advocate General of the Army, 73 M.J. __ (C.A.A.F. Oct. 16, 2013), concerning ineffective assistance of counsel in the sentencing phase of this child sexual assault court-martial, we note that Appellee faced a maximum sentence including confinement for life without parole and that the approved sentence includes that severe punishment. We also note that both the civilian and military defense counsel failed to: (1) interview or call as witnesses former supervisors who assert that they would have offered favorable testimony; (2) offer any evidence of Appellee’s bravery in combat; (3) present any documentation of Appellee’s personal decorations and other awards; and (4) offer any other evidence in extenuation or mitigation. See generally United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998). Accordingly, we conclude that the United States Army Court of Criminal Appeals did not err when it held that the trial defense team’s investigation and presentation of a sentencing case was ineffective. Accordingly, it is ordered that the certified issue is answered in the negative and the decision of the United States Army Court of Criminal Appeals is affirmed.
Notably, the CCA’s opinion included this sentence:
Because of this breakdown in the adversarial system, necessary to ensure a reliable sentence, and despite the seriousness of appellant’s offenses, we will therefore order a rehearing on sentence, where appellant will enjoy the opportunity to present a case in extenuation and mitigation with new counsel.
Slip op. at 4-5 (emphasis added).