Lead Opinion
Opinion of the Court
At his special court-martial at Naval Air Station Oceana, Virginia Beach, Virginia, the accused pleaded guilty to specifications alleg
On appellate review, citing United States v. Moseley,
I
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY INTERPRETED THIS-COURT’S DECISION IN UNITED STATES V MOSELEY,35 MJ 481 (CMA 1992), AS REQUIRING A “PER SE” RULE OF REVERSAL WHERE THE STAFF JUDGE ADVOCATE’S RECOMMENDATION IS NOT SERVED ON TRIAL DEFENSE COUNSEL BUT WHERE CLEMENCY MATTERS WERE SUBMITTED ON BEHALF OF [THE ACCUSED] AND CONSIDERED BY THE CONVENING AUTHORITY?
II
IF MOSELEY DOES ESTABLISH A “PER SE” RULE OF REVERSAL IN EVERY CASE, WHETHER THAT DECISION SHOULD BE OVERRULED?
Arguably, the underlying principles articulated in Moseley could be applied to the facts of this case and to United States v. Miller,
The Facts
The accused was tried on June 24, 1992. On August 20, his defense counsel submitted a clemency petition on his behalf to the convening authority under RCM 1105, Manual for Courts-Martial, United States (1995 ed.). On September 1, the military judge authenticated the record of trial, and defense counsel received a copy of it on September 3. See RCM 1104(a)(2)(A) and (b)(1)(C), and RCM 1106(f)(3). The SJA signed his recommendation on October 1, see RCM 1106(a), and on November 10, the convening authority took his action, noting that he had considered the SJA’s recommendation and the clemency petition that had been submitted by defense counsel in August.
Meanwhile, sometime in September, defense counsel had left active duty for civilian life. The Court of Criminal Appeals concluded that there was no indication anywhere in the record that substitute defense counsel was appointed to pursue the accused’s post-trial interests, see United States v. Palenius,
Thus, for purposes of its review, the Court of Criminal Appeals concluded that there was no such service, and for our purposes, we do likewise. We might add, as well, that there is no indication, either, that any counsel in any formal or informal capacity acted on the
The Law
Before a record of a general court-martial or of a special court-martial at which a bad-conduct discharge has been imposed is forwarded to the convening authority for action under RCM 1107, the SJA’s recommendation to the convening authority must be served on defense counsel with opportunity to respond. United States v. Goode,
Unfortunately, because of apparent omissions of several persons — the detailed defense counsel, to ensure continuity of representation (see generally United States v. Loving,
In United States v. Moseley, supra, this Court addressed a case in which defense counsel continued to represent his client after trial but, for some reason, was not served with the SJA’s recommendation and, therefore, did not respond to it. Judge Wiss, with then-Chief Judge Sullivan concurring without opinion, expressly treated that effectively as “an absence of counsel functioning on behalf of an accused____”
Judges Crawford and Gierke were of a different mind. Although they did not expressly say so, it may be inferred from their separate opinions that they did not view that factual situation as one in which there was an absence of counsel for the accused. Rather, as Judge Crawford wrote, it more logically was one in which there was an “absence of input ” on behalf of the accused by his defense counsel.
Then-Judge Cox wrote a separate opinion concurring in Judge Wiss’ opinion. In the first paragraph, Judge Cox seemed clearly to reject the test-for-prejudice approach of Judges Crawford and Gierke and to embrace the view of Judges Wiss and Sullivan. Subsequently, though, he suggested a procedural vehicle for resolving such errors: A motion in the Court of Criminal Appeals to correct
Judge Cox’s opinion has been pivotal to the lower courts in applying Moseley, given the even division of the other four Judges. Unfortunately, that opinion has not been read consistently by the lower courts. We are advised by the parties here that some panels of the Navy-Marine Corps Court of Criminal Appeals, like the one that reviewed this case for instance, have read it to agree with Judges Wiss and Sullivan and, therefore, have not applied a test for prejudice. Other panels, however, apparently have read it to embrace a test for prejudice after the Court of Criminal Appeals in a particular case has ordered the defense to demonstrate what it would have written to the convening authority if it had been given the chance.
The critical legal principle that is applicable, with which no Judge in Moseley disagreed, may be stated as follows: If a defense counsel is absent for purposes of accepting service of the SJA’s recommendation and responding thereto, the accused thereby has been deprived of his right to defense counsel at that important stage. As Judge Gierke wrote in his concurring opinion under analogous circumstances in United States v. Leaver,
Because a court-martial sentence is inchoate until approved by the convening authority, the convening authority’s action is an integral part of the sentence process. Denial of assistance of counsel during this critical phase of the sentencing process “is legally presumed to result in prejudice.” Penson v. Ohio,488 U.S. 75 , 88,109 S.Ct. 346 , 353,102 L.Ed.2d 300 (1988), quoting Strickland v. Washington,466 U.S. 668 , 692,104 S.Ct. 2052 , 2067,80 L.Ed.2d 674 (1984).
Cf. Austin v. United States,
On the other hand, if counsel who has the legal responsibility to protect the accused’s post-trial interests is present, it cannot be said that the accused has been deprived of his right to counsel. Instead, any error that occurs in connection with that counsel’s performance of his duty of representation or from a procedural error affecting counsel’s ability to meet this responsibility appropriately can be tested for prejudice. United States v. Pierce,
Application of the Law to the Facts
The facts of this case reasonably can lead only to the conclusion that the accused did not have a defense counsel present for purposes of accepting service of the SJA’s recommendation and responding thereto. We recognize, as we mentioned earlier, that trial defense counsel did file a clemency petition on the accused’s behalf with the convening authority. The accused’s right to file such a petition under RCM 1105, however, is distinct from his right to respond to the SJA’s recommendation under RCM 1106 and United States v. Goode, supra.
In any particular case, these two rights may be exercised simultaneously under the time-limit provisions of these rules. Compare RCM 1105(e)(1) with RCM 1106(f)(5). Nonetheless, the rights remain distinctly sep
In this case, recall that defense counsel filed his clemency petition on August 20 — 2 weeks before counsel was served with the authenticated record of trial and 6 weeks before the SJA signed his recommendation. Under these circumstances, and considering the time-limit provisions just cited, there simply is no logical or lawful way to view the clemency petition here as fulfilling the accused’s right to respond to the recommendation.
Accordingly, when defense counsel left active duty sometime in September without appointment of substitute counsel, and when the SJA failed to serve a defense counsel with his recommendation, the accused was deprived of his right to defense counsel at that important stage. Given the absolute, discretionary power of a convening authority to act favorably for an accused, the accused is entitled to have a new post-trial action that will be based upon an SJA’s recommendation that the accused’s defense counsel will consider and have an opportunity to respond to.
Decision
The decision of the United States Navy-Marine Corps Court of Criminal Appeals ordering a new action is affirmed.
Dissenting Opinion
(dissenting):
On June 24, 1992, pursuant to his pleas, the accused was convicted of conspiracy to commit forgery and larceny, in violation of Articles 81 and 121, Uniform Code of Military Justice, 10 USC §§ 881 and 921, respectively. Pursuant to a pretrial agreement to refer the case to a special court-martial rather than an investigation under Article 32, UCMJ, 10 USC § 832, the judge entered findings of not guilty to the following: (1) larceny (2 specifications); (2) forgery by making a false signature on a check; (3) forgery by uttering the same check; and (4) failure to pay a just debt, in violation of Articles 121, 123, and 134, UCMJ, 10 USC §§ 921, 923, and 934, respectively. There was no limitation on the sentence at the special court-martial authorized to adjudge a bad-conduct discharge. The accused was sentenced to a bad-conduct discharge, 4 months’ confinement, a $3,000 fine, and reduction to the lowest enlisted grade.
At trial, the accused requested that the staff judge advocate (SJA)’s recommendation be served on his defense counsel. On August 20, 1992, defense counsel submitted a clemency petition. On September 1, 1992, the record of trial was authenticated and delivered to the accused’s defense counsel on September 3. Around the time of this delivery, defense counsel left active duty, and the SJA’s recommendation was never served on any counsel representing the accused. On November 10, 1992, in approving the sentence, the convening áuthority stated he had considered the clemency petition from the accused’s trial defense counsel.
On February 23,1995, the accused submitted a 2-page proforma brief before the court below. He did not reveal any additional information that he would furnish to the convening authority that would result in a different action in the case.
The Court of Criminal Appeals set aside the convening authority’s action and required a new SJA recommendation and convening authority action. In requiring a new recommendation and action it stated: “We understand the concerns of the Government when we remand a case to correct an error in which no actual prejudice has been demonstrated and it appears unlikely that any can be shown.” Unpub. op. at 5. The Judge Advocate General certified the following issues:
I
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY INTERPRETED THIS COURT’S DECISION IN UNITED STATES V MOSELEY,35 MJ 481 (CMA 1992), AS REQUIRING A “PER SE” RULE OF REVERSAL WHERE THE STAFF JUDGE ADVOCATE’S RECOMMENDATION IS NOT SERVED ON TRIAL DE*147 FENSE COUNSEL BUT WHERE CLEMENCY MATTERS WERE SUBMITTED ON BEHALF OF [THE ACCUSED] AND CONSIDERED BY THE CONVENING AUTHORITY.
II
IF MOSLEY DOES ESTABLISH A “PER SE” RULE OF REVERSAL IN EVERY CASE, WHETHER THAT DECISION SHOULD BE OVERRULED.
These questions were presented to this Court and should be answered by the majority. As to Issue I, I would answer no. As to Issue II, I would answer yes.
This Court has been diligent in ensuring adequate post-trial representation. United States v. MacCulloch,
However, this Court has not applied a per se reversal rule. Cf. United States v. Moseley, supra In United States v. Pena,
In United States v. Robertson,
While it might be possible to distinguish United States v. Moseley, supra, that decision should be reexamined because it failed to consider earlier cases from this Court. In United States v. Smart, supra, Chief Judge Everett indicated that when a “review is not served on the defense counsel until after action ... and the defense counsel learns of its existence and contents in some indirect way, the proper procedure is for the defense counsel promptly to identify defects in the review and then request that the Court of Military Review remand the case to the convening authority for further review.”
With respect to the present case, we agree fully with these comments of the Court of Military Review:
Instead of promptly complaining that he had not received a copy of the review, the defense counsel did nothing. If a defense counsel chooses to sit idle, he does so at his peril. United States v. Kincheloe,14 MJ 40 , 43 (CMA 1982). We also note that appellant’s trial defense counsel nowhere states that he would respond to the review if allowed time to do so. There is no suggestion of any particular deficiency in the review or prejudice suffered by appellant.
The purpose of service is to provide appellant the opportunity to explain or rebut any adverse matters contained within the post-trial review. However, the service requirement is not an invitation for counsel to do nothing. Under these circumstances, the lengthy delay waives any objection to the defect in service of the review.
There are various scenarios that we have reviewed in the past:
Scenario 1. Counsel not served and no submission. Pena,
Scenario 2. Counsel served but no submission. United States v. Pierce,
Scenario S. Counsel not served but submitted clemency package before leaving active duty. This ease.
Scenario 4. Counsel leaves active duty and nothing submitted. Cf. United States v. Robertson, supra
Scenario 5. Substitute counsel appointed but no contact with defendant. United States v. Miller,
Scenario 6. Service on conflicted counsel. United States v. Cornelious,
Arguably, as to Scenarios, 3 and 6, we should presume prejudice when there is no counsel or service on a conflicted counsel. Even then, a per se reversal rule should not be applied, but the Courts of Criminal Appeals should test for prejudice.
Supreme Court case law does not support a presumption of prejudice even when there is an allegation of an actual conflict of interest. See, e.g., Burger v. Kemp,
In this case, the accused agreed to plead guilty to 1/3 of the offenses and avoid an Article 32, UCMJ, 10 USC § 832, investigation in exchange for referral to a special court-martial, thereby limiting the maximum punishment. Since the court below did not test for prejudice under Article 59(a), UCMJ, 10 USC § 859(a), this case should be returned to that court to determine whether, in light of the charges, the pretrial agreement, the clemency package, and the other circumstances, the accused was prejudiced because a substitute counsel was not appointed for the receipt of the SJA’s recommendation.