United States v. Private E1 JORDAN R. AXTELL
2013 CCA LEXIS 481
| A.C.C.A. | 2013Background
- On 28 February 2012, a military judge sitting as a special court-martial convicted appellant by plea of conspiracy to distribute methamphetamines, distribution of methamphetamines, wrongful use of methamphetamine, and wrongful use of marijuana under Articles 81 and 112a UCMJ.
- The convening authority approved 135 days confinement and a bad-conduct discharge; 92 days were credited against confinement.
- Appellant appealed under Article 66, UCMJ, challenging post-trial processing related to deferment of automatic forfeitures.
- Prior to trial, CPT MF explained post-trial rights using a DCAP PTAR form, which advised deferment rights and automatic forfeitures, including two-thirds pay forfeiture during confinement under Article 58b.
- The PTAR also included a section where the appellant could indicate a desire to exercise those rights, including a line: “I do ... want to request deferment of automatic ... forfeitures.”
- After trial, no adjudged forfeitures were found in the sentence, but automatic forfeitures occurred; there is no record of a formal deferment request on the appellant’s behalf.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant was denied a proper opportunity to request deferment of automatic forfeitures. | Appellant argues Fordyce-style lost opportunity due to missing submission. | Appellant’s counsel was competent; PTAR elections do not mandate a deferment request. | No reversible error; no evidence of prejudice; competent counsel presumed. |
Key Cases Cited
- United States v. Lee, 52 M.J. 51 (C.A.A.F.1999) (ineffective-assistance framework; post-trial rights absence of prejudice)
- United States v. Gooch, 69 M.J. 353 (C.A.A.F.2011) (Strickland standard; presumption of competence)
- United States v. Polk, 32 M.J. 150 (C.M.A.1991) (three-part test for overcoming presumption of competence)
- United States v. Ellis, 47 M.J. 20 (C.A.A.F.1997) (limits on compelling defense-counsel disclosure; evidentiary record guidance)
- United States v. Gunderman, 67 M.J. 683 (Army Ct.Crim.App.2009) (assertions must be in record or admissible form; no affidavit required)
- United States v. Fordyce, 69 M.J. 501 (Army Ct.Crim.App.2010) (lost-opportunity claims; post-trial deficiencies guidance)
- United States v. Lewis, 42 M.J. 1 (C.A.A.F.1995) (defense-counsel obligations; post-trial matters must be submitted)
- United States v. Melson, 66 M.J. 346 (C.A.A.F.2008) (attorney-client communications and privilege considerations)
- United States v. Wheelus, 49 M.J. 283 (C.A.A.F.1998) (predecessor considerations on deferral requests)
- United States v. Axtell, 72 M.J. 662 (Army Ct.Crim.App.2013) (PTAR advisory use and non-binding nature of form)
- Hawkins, 34 M.J. 991 (A.C.M.R.1992) (lost opportunity contexts and prejudice assessment)