United States v. Mickens
ACM S32396
| A.F.C.C.A. | May 18, 2017Background
- Appellant pleaded guilty at a special court-martial to multiple wrongful uses of marijuana, Alprazolam, and Lorazepam, and being incapacitated for duty from drug overindulgence; sentenced to a bad-conduct discharge, six months confinement, and a reprimand.
- A pretrial agreement (PTA) limited the convening authority’s approval of confinement to a maximum of three months if a bad-conduct discharge was adjudged.
- The Staff Judge Advocate’s Recommendation (SJAR) incorrectly advised the convening authority that he lacked authority to disapprove, commute, or suspend confinement or the punitive discharge.
- Defense counsel’s clemency submission correctly informed the convening authority he retained discretion to disapprove, commute, or suspend the six-month confinement and requested approval of only the time already served (~1.5 months).
- The SJAR addendum did not correct the SJA’s erroneous legal advice and merely reiterated the original recommendation, though it attached the defense clemency materials and noted they must be considered.
- Convening authority approved a bad-conduct discharge, three months confinement, and a reprimand; the court found the erroneous SJAR advice created a colorable showing of possible prejudice requiring remand for new post-trial processing.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether erroneous SJA advice about convening authority clemency power requires relief | SJA’s incorrect statement undermined consideration of Appellant’s clemency request; counsel correctly claimed convening authority could grant the requested relief | SJAR’s recommendation limited by PTA; convening authority approved lesser confinement consistent with PTA | Court held SJA erred; conflict between SJA and defense counsel created colorable prejudice and warranted new post-trial processing |
| Whether PTA’s confinement cap eliminated convening authority’s power to disapprove or commute confinement | Appellant argued PTA sets a maximum but does not strip convening authority’s clemency powers | Government effectively relied on PTA limitation to support action taken | Court held PTA set only a maximum; it did not remove the convening authority’s statutory authority to disapprove, commute, or suspend confinement |
Key Cases Cited
- LeBlanc v. United States, 74 M.J. 650 (A.F. Ct. Crim. App.) (standard of review for post-trial processing and prejudice threshold)
- Sheffield v. United States, 60 M.J. 591 (A.F. Ct. Crim. App.) (de novo review of post-trial processing legal questions)
- Kerwin v. United States, 46 M.J. 588 (A.F. Ct. Crim. App.) (erroneous post-trial advice invalidates action when it prejudices the accused)
- Scalo v. United States, 60 M.J. 435 (C.A.A.F.) (low threshold for material prejudice in erroneous post-trial recommendations due to convening authority’s broad clemency power)