United States v. Private First Class ANTHONY RAMOS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before TOZZI, HAM, and SIMS Appellate Military Judges UNITED STATES, Appellee v. Private First Class ANTHONY RAMOS United States Army, Appellant ARMY 20090099 Headquarters, 82d Airborne Division Patrick J. Parrish and Gary J. Brockington, Military Judges Lieutenant Colonel Jeffrey C. Hagler, Staff Judge Advocate (pretrial) Major Kaiesha N. Wright, Acting Staff Judge Advocate (recommendation) Major Jessica A. Golembiewski, Acting Staff Judge Advocate (addendum) For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Timothy W. Thomas, JA; Lieutenant Colonel Jonathan F. Potter, JA (on brief). For Appellee: Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Sara M. Root, JA; Captain James T. Dehn, JA (on brief). 19 July 2010 ----------------------------------- SUMMARY DISPOSITION ----------------------------------- SIMS, Judge: On consideration of the entire record, including consideration of the issues personally specified by appellant, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED. Chief Judge TOZZI concurs. HAM, Judge, dissenting: I dissent from my brethren’s summary affirmance and would return this case for a new post-trial review and action. I believe a disqualified officer served as staff judge advocate (SJA) and advised the convening authority during the post-trial process. See United States v. Stefan, ARMY 20081097 (Army Ct. Crim. App. 29 January 2010) (unpub.) (Ham, J., dissenting). Throughout this case, Major (MAJ) Wright wore numerous hats. Appearing first in the record of trial on 24 November 2008, as “Chief, Military Justice,” MAJ Wright signed the charge referral. Next, MAJ Wright appeared on 25 November 2008, as “Trial Counsel,” and served the referred charge on appellant. Third, on 9 June 2009, MAJ Wright, acting this time as “Acting Staff Judge Advocate,” granted trial defense counsel’s request for an extension of time to submit post-trial matters. On 7 July 2009, MAJ Wright signed the promulgating order and the Chronology Sheet, DD Form 490 as “Chief, Military Justice” and “Chief, Criminal Law Section,” respectively. Again on 7 July 2009, MAJ Wright signed the Court-Martial Data Sheet, DD Form 494, as “Trial Counsel,” “Convening Authority or His/Her Representative,” and “Staff Judge Advocate of General Court-Martial Convening Authority or Reviewing Judge Advocate.” Most importantly, on 4 June 2009, MAJ Wright served as the acting SJA in this case, and signed the Staff Judge Advocate’s Recommendation (SJAR), wherein MAJ Wright recommended the convening authority approve the sentence as adjudged. As in Stefan, I believe MAJ Wright wore too many hats in this case, and was disqualified from rendering advice to the convening authority. Id. The facts of this case differ slightly from Stefan because the document at issue is the SJAR, rather than the addendum to the SJAR. Id. at 2-3. Thus, defense counsel had an opportunity to object to MAJ Wright’s involvement in the post-trial process and did not. However, even where an accused has an opportunity to object to a disqualified officer’s involvement in drafting the SJAR, our superior court has found that failure to do so does not result in waiver. United States v. Johnson-Saunders, 48 M.J. 74, 75 (C.A.A.F. 1998). This case demands at least a new review and action by an officer “not affiliated with the prosecution who can consider this case in an impartial manner.” United States v. Edwards, 45 M.J. 114, 117 (C.A.A.F. 1996) (citations omitted). Therefore, I dissent. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court