Sean M. WILLIAMS, Mess Management Specialist
U.S. Navy, Appellant
Crim. App. No. 200000895
United States Court of Appeals for the Armed Forces
Argued February 6, 2002
Decided June 19, 2002
BAKER, J., delivered the opinion of the Court, in which GIERKE and EFFRON, JJ., joined. CRAWFORD, C.J., and SULLIVAN, S.J., each filed a dissenting opinion.
For Appellant: Lieutenant Marcus N. Fulton, JAGC, USNR (argued); Captain Donald L. Nelson, JAGC, USNR (on brief); Lieutenant Amanda St. Claire, JAGC, USNR.
For Appellee: Lieutenant Jason A. Lien, JAGC, USNR (argued); Colonel Rose M. Favors, USMC (on brief).
Military Judge: David M. White
This opinion is subject to editorial correction before final publication.
Judge BAKER delivered the opinion of the court.
On November 16, 1999, appellant pled guilty without the benefit of a pretrial agreement to unauthorized absence, larceny, and forgery, in violation of Articles 86, 121, and 123, Uniform Code of Military Justice, 10 USC §§ 886, 921, and 923, respectively. A military judge sitting as a special court-martial found appellant guilty in accordance with these pleas and adjudged a bad-conduct discharge, confinement for 100 days, and a fine of $1,500. The convening authority approved the sentence as adjudged, and the Court of Criminal Appeals affirmed in an unpublished opinion. No. 200000895 (N-M. Ct. Crim. App. May 7, 2001). The granted issue requires our review of the post-trial handling of a military servicemember’s case.1 Here, we find error and remand.
After announcing the sentence during appellant’s court-martial, the military judge made the following comments on the record:
RCM 1106(f) requires the following:
The Government’s contention is that appellant has failed to make a colorable showing of prejudice under United States v. Chatman, 46 MJ 321 (1997). We have consistently held that "service of the SJA’s recommendation on the accused’s counsel is a critical part of the accused’s post-trial representation." United States v. Mark, 47 MJ 99, 101 (1997)(citing United States v. Moseley 35 MJ 481, 484-85 (CMA 1992)). Further, we agree with Judge Gierke’s view espoused in Moseley that
In Chatman, we addressed the question of the standard to be applied when a staff judge advocate fails to serve on the defense a copy of an addendum that contains "new matter" to which an accused has the right to respond. See RCM 1106(f)(7). We required an appellant to "demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter." 46 MJ at 323 (internal quotations omitted). We further indicated that "the threshold should be low, and if an appellant makes some colorable showing of possible prejudice, we will give that appellant the benefit of the doubt and we will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment." Id. at 323-24 (internal quotations omitted)(emphasis added). In United States v. Howard, 47 MJ 104, 107 (1997), we extended this standard to cases involving failure to serve the original recommendation on defense counsel.
We accept without more trial defense counsel’s
statement in his declaration that he would have commented on the command
judge advocate’s failure to include the second part of the military judge’s
comments.3 We disagree
with the Government that the omitted part of the military judge’s comments
was simply a repeat of the first part. In the second part of his comments,
the military judge stated the basis for his personal view that appellant
was worthy of the type of clemency he was recommending. These comments
indicated that the "nice testimonials from two pastors and from his mother
concerning his intended desire to do well in the Navy," considered by the
military judge during sentencing, had moved him to make this particular
clemency recommendation. More importantly, the second part of the military
judge’s comments included his favorable assessment of appellant’s rehabilitative
potential. Given the numerous offenses with which appellant was originally
charged,4 the convening authority might logically have given the on-the-record remarks little weight in the absence of the military judge’s stated reasons for making them.
"The essence of post-trial practice is basic fair play—notice and an opportunity to respond." United States v. Leal, 44 MJ 235, 237 (1996). It certainly would have been within the convening authority’s discretion to decline the military judge’s recommendation, even had counsel been provided the opportunity to comment. However, appellant had the right to have his counsel served the recommendation in accordance with RCM 1106(f). In this case, he also had the attendant right to respond to the command judge advocate’s failure to include the military judge’s favorable recommendation in its entirety. We hold that appellant was denied these rights when his counsel was not served the recommendation prior to the convening authority’s action, and that he has made a "colorable showing" of prejudice.5
The decision of the United States Navy-Marine Corps Court of Criminal Appeals and the action of the convening authority are set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to a convening authority for a new post-trial recommendation and action. Thereafter, Articles 66 and 67, UCMJ, 10 USC §§ 866 and 867, respectively, will apply.
1 Granted Issue:
3 Neither the record nor defense counsel’s declaration mentions when counsel became aware of the fact that the convening authority had already issued his action by the time the CJAR was received. We remind counsel that RCM 1107(f)(2) allows the convening authority to recall and modify any action prior to forwarding the record for review.
4 In addition to the offenses to which appellant entered pleas of guilty, he was also charged with five specifications of failure to go, one specification of disrespect to a chief warrant officer, one specification of disrespect to petty officers, one specification of disobeying a commissioned officer, one specification of disobeying a petty officer, two specifications of making false officials statements, and one specification of communicating a threat. These offenses were withdrawn without prejudice by the government just before the military judge entered findings of guilty in accordance with appellant’s pleas. They were ultimately dismissed by the Government at trial.
5 We have become increasingly concerned with what we view as a lack of attention to the post-trial process. For instance, the convening authority’s action in this case purports to implement appellant’s automatic reduction to E-1 under Article 58a, UCMJ, 10 USC § 858a. This is curious since appellant was already at grade E-1 at the time of trial.
CRAWFORD, Chief Judge (dissenting):
While there must be accountability in eliminating errors as to the command judge advocate’s (CJA) recommendation, appellant is required to show a colorable claim of prejudice. United States v. Chatman, 46 MJ 321, 323-24 (1997); see also United States v. Wheelus, 49 MJ 283, 286-87 (1998). That has not been done. Nor is there any chance that appellant will be retained in the service as a result of a new CJA recommendation and action by the convening authority. One only needs to ask whether the Navy wants to have appellant or a new recruit off the street in the service. The answer, based on his offenses, is obvious.
Appellant was an eighteen-year-old sailor with less than a year of active service at the time of the offenses and was assigned to the USS ABRAHAM LINCOLN at the Puget Sound Naval Shipyard, Bremerton, Washington. Over a four-month period, appellant was absent without leave from his unit on four separate occasions. These absences occurred on May 6-11, June 1-4 and 7-25, and June 28-September 3, 1999. Appellant offered no excuses for his absences other that he just did not want to go to work. He stayed in the local area during his first three absences and for a good portion of his last absence. His last unauthorized absence terminated when he turned himself in at the Great Lakes base in Chicago after traveling through Texas.
On August 1, 1999, appellant stole $1,500.00 from the Washington Mutual Bank in Everett, Washington. He did so by depositing a forged check into his checking account using the ATM. Over the next few days, he withdrew the funds from his checking account. He obtained the blank check from Senitria Larue, whose account at Washington Mutual Bank had been closed. Appellant forged Senitria Larue’s signature on the check and made it payable to himself in the amount of $1,500.00.
Appellant was convicted based on his pleas of guilty. After announcing the sentence, the military judge made the following comment:
I say that in light of the nice testimonials from two pastors and from his mother concerning his intended desire to do well in the Navy, as well as his youth, and realizing that hopefully, if he has learned from this experience and the brig can perform its rehabilitative function, that Seaman Recruit Williams may have an opportunity to fulfill that enlistment.
The court below found that the convening authority erred by taking action before the CJA’s recommendation was served on the detailed defense counsel. In a footnote to its opinion, the court below stated:
RCM 1106(f)(5) states: "Counsel for the accused shall be given 10 days from service of the record of trial under RCM 1104(b) or receipt of the recommendation, whichever is later, in which to submit comments on the recommendation." The court below acknowledged that the convening authority erred by taking action before the ten days had expired. I agree.
Nonetheless, appellant is not entitled to relief unless he is able to demonstrate prejudice. The court below found no prejudice because appellant’s earlier clemency submission of January 21, 2000, was before the convening authority, and appellant has failed to show what additional clemency matters he would have submitted.
Thus, I cannot conclude that appellant was prejudiced by the failure of the CJA’s recommendation to include the second paragraph of the military judge’s clemency recommendation.
SULLIVAN, Senior Judge (dissenting):
I agree with the majority that the convening authority erred by taking action in this case before defense counsel was served with the command staff judge advocate’s recommendation. See generally United States v. Johnston, 51 MJ 227, 229 (1999). Nevertheless, I am not convinced that appellant has made a colorable showing of possible prejudice. United States v. Chatman, 46 MJ 321, 323-24 (1997); see United States v. Schrode, 50 MJ 459 (1999).
In this regard, I note that all defense clemency materials were submitted to and considered by the convening authority prior to his taking action in this case. Moreover, the command staff judge advocate in his post-trial review called the convening authority’s attention to the military’s judge favorable comments on the suspension of the bad-conduct discharge. Finally, although the command staff judge advocate did not repeat verbatim the military judge’s comments, they were in the record of trial and, therefore, before the convening authority.
I further note that defense counsel himself in his earlier clemency submissions in this case did not reference the military judge’s post-sentence comments. Such inaction may suggest error by the defense counsel at trial; however, appellant did not raise that issue on this appeal. Moreover, the omission from mentioning this matter in the clemency materials may reflect the defense’s belief that the trial judge’s comments were not that helpful. In all these circumstances, I would affirm on the basis of harmless error. See United States v. Kho, 54 MJ 63, 65 (2000) (no plain error in failure to note military judge’s recommendation on sentence where clearly not prejudicial under circumstances of case).