United States v. Specialist EDUARDO BARREDA

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before JOHNSON, COOK, and BAIME Appellate Military Judges UNITED STATES, Appellee v. Specialist EDUARDO BARREDA United States Army, Appellant ARMY 20080446 Headquarters, 1st Cavalry Division Gregory Gross, Military Judge Major Dean L. Whitford, Acting Staff Judge Advocate (pretrial advice) Lieutenant Colonel Walter S. Weedman, Staff Judge Advocate (recommendation) For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley Voorhees, JA; Captain Melissa Goforth Koenig, JA (on brief). For Appellee: Colonel Norman F. J. Allen III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Sara M. Root, JA; Captain Sarah J. Rykowski, JA (on brief). 29 September 2009 --------------------------------------------- SUMMARY DISPOSITION -------------------------------------------- Per Curiam: On 14 May 2008, a military judge sitting as a special-court martial convicted appellant, pursuant to his pleas, of assault consummated by a battery upon a child under 16 years of age, in violation of Article 128, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 928 . The military judge sentenced appellant to reduction to the grade of Private E1, forfeiture of $897 pay per month for seven months, confinement for seven months, and a bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority approved five months confinement, and the remainder of the sentence. In a sworn affidavit, appellant alleges he neither had the opportunity to submit clemency matters in accordance with Rule for CourtsMartial (R.C.M.) 1105, nor affirmatively waived his right to submit such matters. Our superior Court has often noted 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); United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994). Consequently, “the convening authority’s obligation to consider defense [clemency] submissions is uniquely critical to an accused.” United States v. Hamilton, 47 M.J. 32, 35 (C.A.A.F. 1997). The absence of R.C.M. 1105 matters from the record is apparently through no fault of the government, which documented its repeated, good-faith efforts to ascertain whether appellant would be submitting them. Nonetheless, if the convening authority “has not seen a convicted servicemember’s clemency submission, it is well established that he has not been afforded his best hope for sentence relief.” United States v. Spurlin, 33 M.J. 443, 445 (C.M.A. 1991) (quotation marks and citations omitted). Finding no prejudice is a very high bar we are unable to reach here. We will not speculate what the convening authority would have done if presented with the clemency information appellant desired to submit. We return the record of trial to afford appellant the opportunity to provide matters to the convening authority for consideration. The convening authority’s initial action, dated 6 August 2008, is set aside. The record of trial is returned to The Judge Advocate General for a new staff judge advocate recommendation and a new initial action by the same or a different convening authority in accordance with Article 60(c)- (e), UCMJ. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court