United States v. Sergeant E5 JOHNATHAN E. WILLIAMS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges UNITED STATES, Appellee v. Sergeant E5 JOHNATHAN E. WILLIAMS United States Army, Appellant ARMY 20060969 Headquarters, XVIII Airborne Corps and Fort Bragg Patrick J. Parrish, Military Judge Colonel W. Renn Grade, Staff Judge Advocate For Appellant: Major Leonard W. Jones; Major Teresa L. Raymond, JA (on brief); Colonel Christopher O’Brien, JA; Lieutenant Colonel Steven Henricks, JA; Major Leonard W. Jones; Major Teresa L. Raymond, JA (on specified issues brief). For Appellee: Colonel John W. Miller II, JA; Major Elizabeth G. Marotta, JA; Major Tami L. Dillahunt, JA; Captain Teresa T. Phelps, JA (on specified issue brief). 28 March 2008 -------------------------------- SUMMARY DISPOSITION -------------------------------- Per Curiam: This case was submitted on its merits for our review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 [hereinafter UCMJ]. Noting the apparent absence of appellant’s personal statement from matters submitted to the convening authority in his petition for clemency under Rule for Courts-Martial [hereinafter R.C.M.] 1105 and 1106, we specified two issues for clarification.[1] The body of defense counsel’s clemency memorandum referenced appellant’s letter to the convening authority, and listed a “personal statement” from appellant as Enclosure 1. No such personal statement is contained in the nineteen pages faxed by appellant’s defense counsel to the Office of the Staff Judge Advocate (SJA). The SJA’s addendum to the post-trial recommendation made no reference to a personal statement by appellant and provided no explanation for its absence. Article 60, UCMJ, and R.C.M. 1107 require the convening authority to consider clemency materials submitted by the accused pursuant to R.C.M. 1105 and 1106. In this case, the government concedes there is no evidence that appellant’s personal statement was submitted for consideration by the convening authority. “Speculation concerning the consideration of such matters simply cannot be tolerated in this important area of command prerogative.” United States v. Craig, 28 M.J. 321, 325 (C.M.A. 1989) (citing United States v. Siders, 15 M.J. 272, 273 (C.M.A. 1983)). Accordingly, “this court will not ‘guess’ as to whether clemency matters prepared by the defense counsel were attached to the recommendation or otherwise considered by the convening authority.” Id. (quoting United States v. Hallums, 26 M.J. 838, 841 (A.C.M.R. 1988)). The government argues, however, there is no prejudice from the apparent absence of appellant’s personal statement from the clemency petition since defense counsel’s submission under R.C.M. 1105 partially summarized appellant’s personal statement. We do not accept the government’s position. Appellant’s personal statement is not contained in the record of trial or allied papers and we will not speculate whether the content was duplicated in defense counsel’s submission. Accordingly, appellant is entitled to relief. See Article 60(c)(2), UCMJ; United States v.Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (post-trial errors merit relief where there is a “colorable showing of possible prejudice”). The convening authority’s initial action, dated 25 January 2007, is set aside. The record of trial is returned to The Judge Advocate General for a new SJAR and action by the same or a different convening authority in accordance with Article 60(c)-(e), UCMJ.[2] FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- [1] We specified: WHETHER APPELLANT SUBMITTED IN HIS CLEMENCY MATTERS A PERSONAL STATEMENT TO THE CONVENING AUTHORITY; IF SO, WHETHER THE CONVENING AUTHORITY CONSIDERED APPELLANT’S PERSONAL STATEMENT. ASSUMING THE CONVENING AUTHORITY DID NOT CONSIDER APPELLANT’S PERSONAL STATEMENT, WHETHER APPELLANT HAS BEEN PREJUDICED BY THAT FAILURE. [2] The new promulgating order should correct, inter alia, the spelling of appellant’s name and the findings by exceptions and substitutions.