*1 STATES, Appellee, UNITED PFISTER,
Brant D. Chief Warrant Two, Army,
Officer
Appellant.
No. 99-0311.
Crim.App. No. 9600589.
U.S. Court of
the Armed Forces.
Argued Jan. July
Decided
CRAWFORD, C.J., оpinion delivered the Court, in which GIERKE and EF- FRON, JJ., COX, S.J., joined. and SULLI- VAN, J., concurring opinion filed result. Appellant: Captain Stephanie
For L. (argued); Odegard, Haines Adele H. Colоnel Morris, Major Scott R. Captain Donald (on brief); P. Chisholm John T. Colonel II, Captain Phelps Campbell-Brun- Kirsten son, Terwilliger-Stacey. E. Jodi Appellee: Haywoоd Captain Kelly For D. (argued); Eugene R. Lieutenant Colonel (on A. Ham Milhizer Patricia brief); Captain Arthur J. Coulter. Judge CRAWFORD delivered opinion of the Court. pretrial agreement, appel-
Pursuant to a specifications pleaded guilty of sod- omy and inde- daughter, acts with in violation of cent Mili- Articles 125 and Uniform Code Justicе, §§ tary respec- 10 USC 925 and tively. Accordingly, the Government dis- rape, specification missed *2 wrong, caused assault, My behavior was sodomy, a daughter---- acts, fоr our specifica- pain and confusion and 2 indecent adultery. Appellant was sentenced tions of dismissal, years’
by a officer members to confinement, The con- and total forfeitures. wife], our Wendy [appellant’s second limited of the sentence was fiiends, support my family, release agreemеnt. The years by pretrial necessary so the from confinement soon find- affirmed the fact, Wen- healing can resume. process sentence, granted review of ings and and we subject friends, dy, family, our following issue: by the saddened experts shocked and are AD- THE WHETHER STAFF JUDGE case____ of them Not one outcome of APPELLANT OF VOCATE DEPRIVED in this was warranted felt confinement TO AN TO RESPOND OPPORTUNITY ease, society, any benefit to BY: NEW MATTERS POST-TRIAL loving and rebuilding a best interest SAID NEW MATTERS PRESENTING caring family. TO THE CONVENING AUTHORITY response to Apparently, AFTER THE ARMY
ONLY ONE DAY
wife,
clemency
aрpellant’s first
Bet-
petition,
DE-
APPEALS
COURT OF CRIMINAL
victim,
a
ty,
submitted
the mother
NIED
PETITION FOR
APPELLANT’S
dated
as
letter
a Victim
RELIEF IN THE
EXTRAORDINARY
24,1996.
appel-
This letter rebutted
OF A WRIT OF PROHIBI-
NATURE
family supported his
lant’s assertion that his
MAT-
TION
SAID NEW
TO EXCLUDE
by stating
his
confinеment
release from
TERS, WITHOUT FIRST NOTIFYING
early
his
re-
the children wanted
claim that
THE
APPELLANT’S COUNSEL OF
outright
It said:
was “an
lie.”
DECISION,
lease
PRE-
AND
COURT’S
NEW MATTERS TO
SENTING SAID
who
three occasions
He
a man
on
THE
CONVENING
AUTHORITY
my
tempted murder
threatened
me and
FIRST
APPEL-
WITHOUT
NOTIFYING
He
death on other occasions.
was
THAT APPEL-
LANT’S COUNSEL
children, and he
me and to the
violent to
REQUEST THAT THE STAFF
LANT’S
extremely emotionally manipulative
was
THE
ADVOCATE WITHDRAW
JUDGE
pоint
one
a word
could
trust
DENIED;
NEW
AP-
MATTERS WAS
once
mouth. He was
described
his
DEFER
PELLANT’S
TO
DECISION
by
security
investi-
his
co-workers in
own
MAT-
OF THE SAID NEW
REBUTTAL
was
gation
pathological
“a
liar” who
as
UNTIL AFTER RESOLUTION
TERS
toward
wife.”
to be violent
his
“believed
FOR
OF THE PENDING PETITION
sexually molesting
was
He
once accused
THE
RELIEF IN
EXTRAORDINARY
only
daughter when she was
OF A
OF PROHIBI-
NATURE
WRIT
old,
charges
filed.
were not
TION AND UNTIL AFTER RESOLU-
was included
The Victim
REQUEST TO
TION
HIS PENDING
OF
recommendation
in an addendum the SJA
THE
TO
STAFF JUDGE ADVOCATE
and defense
and was served
MATTERS
WITHDRAW THE NEW
day,
counsel on October
AN AFFIRMATIVE WAIV-
WAS NOT
(CPT)
F,
replaced
trial
V
ER; THEREFORE,
DOES
WAIVER
4,1996, CPT
On November
defense counsel.
APPLY.
NOT
submitting the
granted
V was
beforе
herein, we affirm.
For the reasons discussed
response to the SJA recommenda-
appellant’s re-
judge advo
tion. On November
response
the staff
сlemency
Sep
quest for
to file a new
prepared on
cate
granted until
through
was
a de
CPT V
tember
1996. On November
dated December
tailed letter
previous de-
V
to withdraw the
clemency petition. CPT moved
September
in his
letter,
CPT F.
fense submission
In this
stated:
peti-
clemency
CPT submitted a
and filed
second
ond
day,
stаy,
tion on December
That
and for a
as well
same
(MAJ)
request
the defense faxed a
brief in the Court of Criminal
ample
appeals.
of Criminal Law in the SJA’s
Therе was more than
time
office,
V,
clearly
who
so
with
was
familiar
*3
facts,
prepare
the
rebuttal to
redact-
convening
Statement not be
to the
the
fоrwarded
alternative,
Impact
ed
Statement.
authority for
Victim
his review.
the
version
delay
Army
the defense
until the
Additionally,
CPT V did not
further
seek
Appeals
Court
Criminal
оf
decided whether
authority.
convening
from
extension
the
The
prohibition
writ
preclude
issue a
of
the
petition
extraordinary
fact that she filed a
Impаct
Victim
from being
Statement
sent to
of
Appeals
relief
Court
Criminal
did
convening authority.
the
On the fax cover
obligation
not relieve her
the
either to
sheet,
VCPT asked
Gross to
her
MAJ
advise
apply for such
provide
an extension or to
the
regarding
of his decision
submission
the
convening
specific
authority with
rebuttal to
possible
addendum soon as
and indicated
that,
the addendum.
under
We conclude
temporary duty
that
would
she
be on
circumstances, her
these
failurе to do either
3-7,1996.
December
such
constituted waiver of
rebuttal.
3, 1996, appellant
On December
filed a
Finally, we hold that
was no
there
petition
extraоrdinary
for a
plain error that would overcome this waiver.
stay
proceedings,
as well as a
Plain error is an error that is
or obvi
clear
in
Appeals. Cpt
brief
the Court of Criminal
materially prejudices
ous and
the substantial
provided
copy
of this to the
The
SJA.
rights of
v.
the accused. United States
Pow
was denied оn December
and the
(1998).
ell,
49 MJ
464
Under the cir
day
the
containing
addendum
a redact-
above,
cumstances described
the decision of
Impact
ed version of the Victim
Statement
authority
convening
the
take
action
and the SJA recommendation was forwarded
appellant’s
without
rebuttal
to the redaсted
action,
to the
He took
statement did not constitute clear or obvious
reducing the
in
sentence
conformance with
error.
pretrial agrеement.
the
Army
The decision of the United States
is affirmed.
6, 1996,
On December
V learned
convening authority’s
the
action. She was
SULLIVAN, Judge (concurring in the
Appeals’
unаware
the
Court of Criminal
result):
convening authority’s
decision
the
action
until
time.
that
Neither MAJ Gross nor the
First, I
do
believe
is a case involv-
attempted
SJA had
to сontact her. On De-
ing waiver.
entails
Waiver
the “intentional
10, 1996,
spoke
cember
VCPT
with MAJ
relinquishment
a known
or abandonment of
convening
who confirmed
the
that
au-
Olano,
right.”
v.
United States
507 U.S.
thority
had acted on December
1996.
(1992).
113
123
S.Ct.
L.Ed.2d 508
MAJ Gross indicated that
had al- Appellant’s counsel did not waive the claim of
ready
in
received
thе form of the
error
pretrial agreement, which limited the con-
judge
tached
staff
advocate’s
years
versus the 20
responded
she
to it
because
аdjudged in the case.
timely
by:
in a
manner
that
issue;
the SJA remove the material at
they
The defense now claims that
should
filing
the
given
have been
a chance to rebut the redact-
Appeals;
Court of Criminal
U.S.
ed version of the Victim
(3) requesting
until
that the SJA
action
copy
The defense was served a
of the Victim
was reviеwed.
and the
my opinion,
really
took action on December
claim is
5. During
approximately
days
33
be-
one of ineffective assistance of counsel. Cf.
(CMA
dates,
Pierce,
tween those
V submitted a sec-
United States v.
161
(1995
Courts-Martial,
States
1994).
United
ual for
to effective
An
entitled
judged
ed.).
un-
representation, which is
Strickland, Washington, 466 U.S.
v.
der the
preju-
under the
resolve this case
would
(1984),
80 L.Ed.2d
104 S.Ct.
“The defendant
prong of Strickland.
dice
See,
Wiley,
v.
e.g.,
States
United
standard.
proba-
is a reasonable
must show
there
(1997);
Lucey,