United States v. Sergeant HECTOR J. MERCADO

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before TOZZI, HAM, and SIMS Appellate Military Judges UNITED STATES, Appellee v. Specialist HECTOR J. MERCADO United States Army, Appellant ARMY 20080912 Headquarters, 82nd Airborne Division Patrick Parrish, Military Judge Lieutenant Colonel Jeffrey C. Hagler, Staff Judge Advocate For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA; Captain Pamela Perillo, JA (on brief). For Appellee: Colonel Norman F.J. Allen, III, JA; Lieutenant Colonel Martha L. Foss, JA; Lieutenant Colonel Francis C. Kiley, JA; Lieutenant Colonel John C. Lynch, JA (on brief). 30 September 2009 --------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam: A military judge sitting as a special court-martial, convicted appellant, pursuant to his plea, of one specification of absence without leave, in violation of Article 86, Uniform Code of Military Justice [hereinafter UCMJ]. The military judge sentenced appellant to a badconduct discharge, confinement for six months, and a reduction to the grade of E-1. Pursuant to a pretrial agreement, the convening authority approved only 121 days of the sentence to confinement, but otherwise approved the adjudged sentence. This case is before us for review under Article 66, UCMJ. Appellant claims he suffered prejudicial error because his defense counsel failed to file Rule for Courts-Martial [hereinafter R.C.M.] 1105 matters on his behalf. We agree and order a new recommendation and action to ensure appellant has a meaningful opportunity for clemency. We do so without deciding whether trial defense counsel’s actions amounted to ineffective assistance of counsel. See generally United States v. Spurlin, 33 M.J. 443 (C.M.A. 1991); United States v. Starks, 36 M.J. 1160 (A.C.M.R. 1993); United States v. Sosebee, 35 M.J. 892 (A.C.M.R. 1992). BACKGROUND The government served appellant’s trial defense counsel, Captain (CPT) P, with a copy of the record of trial and the post-trial recommendation on 5 January 2009, with a 16 January 2009 date to submit matters in accordance with R.C.M. 1105. On 14 January 2009, CPT P requested and was granted a 20-day extension to submit clemency matters. On 5 February 2009, CPT P submitted a letter written by appellant for consideration under R.C.M. 1105. On 12 February 2009, CPT P told the military justice noncommissioned officer in charge, Sergeant First Class (SFC) F that he planned to submit clemency matters on behalf of the accused “by close of business on 12 February 2009.” Captain P failed to submit additional matters and on 13 February 2009 at approximately 1600 hours, the convening authority took final action on appellant’s case. On 17 February 2009, CPT P sent an e-mail to SFC F, stating he had computer difficulties, had been unable to prepare clemency matters for appellant, and would “submit[] them shortly.” Sergeant First Class F responded that the convening authority had already taken action on the case. LAW AND DISCUSSION We have long found that an accused’s best chance for clemency rests with the convening authority. See United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 1998). This court, sitting as the Army Court of Military Review, has previously held that the right to submit matters has its limits. Sosebee, 35 M.J. at 893 . But we have also suggested “that the prudent staff judge advocate would take any response received with him for the convening authority’s consideration even though the time periods had not been met.” Id. (citing United States v. Angelo, 25 M.J. 834 (A.C.M.R. 1988)). In this case, defense counsel notified the military justice office that he planned to submit additional clemency matters “by close of business on 12 February 2009.” When no matters, other than the letter drafted by appellant, were received by that deadline, the staff judge advocate took appellant’s case to the convening authority for action the very next day. While we do not condone defense counsel’s failure to comply with the time limits set for submission of clemency matters, the staff judge advocate was on notice that additional matters were being prepared for submission and should have done more to ensure appellant’s clemency matters were received and submitted to the convening authority. See United States v. Brown, 29 M.J. 613 (A.C.M.R. 1989); Sosebee, 35 M.J. at 893 . In an abundance of caution, we hold that appellant should be given the opportunity to submit all clemency matters on his behalf to ensure a meaningful opportunity for sentence relief. CONCLUSION We remand this case for a new SJAR and action. This remedy will afford appellant the requested opportunity to have meaningful representation and opportunity to submit clemency matters to the convening authority. The convening authority’s initial action, dated 13 February 2009, is set aside. The record of trial is returned to The Judge Advocate General for a new SJAR and new initial action by the same or a different convening authority in accordance with Article 60(c)-(3), UCMJ. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court