United States v. Private E2 CHRISTOPHER B. GRIER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before GALLUP, TOZZI and JOHNSON Appellate Military Judges UNITED STATES, Appellee v. Private E2 CHRISTOPHER B. GRIER United States Army, Appellant ARMY 20070943 Headquarters, 1st Cavalry Division Julie Hasdorff, Military Judge Lieutenant Colonel Walter S. Weedman, Staff Judge Advocate For Appellant: Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Teresa Raymond, JA; Captain Alison Gregoire, JA (on brief); Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Captain Alison Gregoire, JA (on reply brief). For Appellee: Colonel Denise R. Lind, JA; Captain Philip M. Staten, JA; Captain Sarah J. Rykowski, JA (on brief) 27 February 2009 ----------------------------------------- SUMMARY DISPOSITION ----------------------------------------- Per Curiam: A military judge sitting as a special court-martial empowered to adjudge a bad-conduct discharge convicted appellant, pursuant to his pleas, of distribution of controlled substances on divers occasions (two specifications) and use of a controlled substance, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 912a, [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a badconduct discharge, confinement for two months, and reduction to the grade of Private E1. This case is before us for review under Article 66, UCMJ. Appellant alleges he suffered prejudicial error because no clemency matters were received by the convening authority prior to initial action. We agree and order a new recommendation and action to ensure a meaningful opportunity for sentence relief; we do so without deciding whether trial defense counsel was ineffective. 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 Appellant’s trial defense counsel, MAJ HR, received the Staff Judge Advocate’s (SJA) Recommendation (SJAR) in this case on 29 October 2007. Between that date and 25 November 2007, defense counsel and members of the Office of the Staff Judge Advocate (OSJA) exchanged numerous emails about the need to submit post-trial matters. On 25 November 2007, defense counsel requested a 20-day delay to submit matters. Although not entirely clear from the record, it appears that the convening authority granted a delay until 28 December 2007. On 28 December 2007, the Chief of Military Justice notified defense counsel that the record was going forward to the convening authority for action; however, the record was not actually forwarded to the convening authority until 28 January 2008. Even though final action was not taken until 13 February 2008, it is clear from the record that the convening authority did so without considering any Rule for Courts-Martial (R.C.M.) 1105 or 1106 submissions by the trial defense counsel or appellant. On appeal, defense appellate counsel included matters submitted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). In those matters appellant indicated, inter alia, that he was never contacted about submitting clemency matters, and that had he been given the opportunity he would have submitted statements from himself and family members.[1] This was followed later with a declaration under penalty of perjury stating that he would have included a letter written on his own behalf expressing remorse and requesting disapproval of the bad-conduct discharge. He also declared that he would have included letters from his wife, family, friends, church members, and First Sergeant. LAW AND DISCUSSION 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). If the convening authority “has not seen a convicted member’s clemency submission, it is well established that he has not been afforded his best hope for sentence relief.” Spurlin, 33 M.J. at 445 (quotation marks and citations omitted); see also Sosebee, 35 M.J. at 894 . In this case, appellant desired to submit clemency matters to the convening authority; however, the convening authority was not provided with those matters prior to taking action. We are cognizant of an SJA’s dilemma when trial defense counsel does not comply with the time limits for submission of clemency matters. We also recognize recent developments in military jurisprudence have spurred concern over excessive delay in post-trial processing. See generally United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). In this case, we commend the patience demonstrated by the SJA and the efforts of the OSJA to obtain appellant’s clemency matters. The SJA apparently made every attempt to follow our suggestion in Sosebee, to be “prudent” in enforcing time limits. 35 M.J. at 894 .[2] Indeed, appellant’s trial defense counsel had ample opportunity after expiration of the extended deadline to submit clemency matters before the SJA finally took appellant’s case to the convening authority for action.[3] Concern for judicial economy persuades us to grant appropriate relief now. It is not lost on this court that appellant willingly accepted the prospect of an adjudged bad-conduct discharge rather than face lengthy confinement. However, finding no prejudice is a very high bar we are unable to reach here. In this case we will not speculate what the convening authority would have done if presented with the clemency information the appellant desired to submit. When defense counsel fail “to exercise due diligence in the execution of their post-trial duties, this court is obligated to take appropriate action.” United States v. Lowe, 50 M.J. 654, 657 (N.M. Ct. Crim. App. 1999) (citations omitted). “Appellant has made a colorable showing of possible prejudice, and he will receive the benefit of our doubt where it is clear that his post-trial representation was [deficient].” Id. (quotation marks and citation omitted). CONCLUSION We remand this case for a new SJAR and action. This remedy will afford appellant the requested opportunity to submit clemency matters to the convening authority. The convening authority’s initial action, dated 13 February 2008, is set aside. The record of trial is returned to The Judge Advocate General for a new SJAR 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 ----------------------- [1] We find appellant’s other matters submitted under Grostefon to be without merit. [2] We also noted in Sosebee, “[a] trial defense counsel who allows thirty days to pass without submitting post-trial matters risks the application of the waiver rule or an allegation of ineffective assistance of counsel.” Id. at 894. [3] The Rules for Court-Martial provide for procedures where an accused’s detailed defense counsel is unable or unwilling to provide effective posttrial representation. See R.C.M. 1106(f)(2); see also United States v. Johnston, 51 M.J. 227, 229 (C.A.A.F. 1999) (substitute counsel should have been detailed when defense counsel left active duty). Additionally, a SJA may properly contact a defense counsel’s designated supervisory attorney when a credible basis exists to believe counsel may be failing to represent a client diligently. See generally Army Reg. 27-1, Legal Services: Judge Advocate Legal Services, ch. 7 (30 Sept. 1996); Army Reg. 27-10, Legal Services – Military Justice, para. 5-8, 6-11 (16 November 2005).