MEDEIROS – ARMY 20081092

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

JOHNSON, BAIME, and BURTON 

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private First Class Robert W. Medeiros**

**United States Army, Appellant**

ARMY 20081092

Headquarters, National Training Center and Fort Irwin

Michael J. Hargis, Military Judge

Lieutenant F. Dean Raab, Staff Judge Advocate (pretrial and recommendation)

Major Robert A. Vedra, Acting Staff Judge Advocate (addendum)

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Captain Shay Stanford, JA; Captain Michael E. Korte, JA (on brief);  Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Lieutenant Colonel  Peter Kageleiry, Jr., JA; Captain Barbara A. Snow-Martone, JA (on reply brief).

For Appellee:  Colonel Michael E. Mulligan, JA; Major Christopher B. Burgess, JA; Major Adam S. Kazin, JA; Major Joshua W. Johnson, JA (on brief).

7 June 2011

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SUMMARY DISPOSITION

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Per Curiam:

On 3, 4, and 5 December 2008, a military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of assault (two specifications), adultery, and communicating a threat, in violation of Articles 128 and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 928 and 934.  The military judge convicted appellant, contrary to his pleas, of attempted wrongful imprisonment, maiming, sodomy, and assault (six specifications), in violation of Articles 80, 124, 125, and 128, UCMJ, 10 U.S.C. §§ 880, 924, 925, and 928.  The convening authority approved the adjudged sentence of reduction to the rank of Private E1, confinement for thirty-two years, and a dishonorable discharge.

This case is before us for review under Article 66, UCMJ, 10 U.S.C. §866.   On 30 April 2010, appellate defense counsel filed a brief on behalf of appellant asserting the following assignments of error:

II. 

APPELLANT WAS DENIED POST-TRIAL EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS COUNSEL FAILED TO INCLUDE APPELLANT’S PERSONAL SUBMISSIONS TO THE CONVENING AUTHORITY.

III.

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN, AFTER A CONTESTED COURT-MARTIAL, APPELLANT’S COUNSEL SUBMITTED A CLEMENCY REQUEST CONTAINING ADMISSIONS OF GUILT AND DEROGATORY INFORMATION WITHOUT APPELLANT’S KNOWLEDGE OR CONSENT.

Appellant’s pleadings before this court include an affidavit in which:

1.  Appellant alleges he “never spoke to CPT Barbour after trial about these clemency matters.  He never called me about them.”  

2.  Additionally, appellant alleges he did submit a seven-page handwritten letter to the “CJA staff at Ft. Leavenworth who routinely coordinate things like this, and on June 6, 2009, they faxed it to TDS for me.  I found out later that nobody included what I wrote to the convening authority when they asked the convening authority for clemency for me.  The convening authority never saw my 7-page letter.  I don’t think at that point I really had a chance to make my case for why he should reduce my sentence or show mercy.”

3.  Appellant also alleges a clemency submission was ultimately sent to the convening authority without appellant’s knowledge or permission, and that the submission hurt his chances for clemency because it portrayed appellant in “the worst possible light” by admitting to the convening authority that he committed the offenses he contested at trial.

In response, trial defense counsel and his legal specialist assert trial defense counsel spoke with appellant about the clemency process, did not receive appellant’s personal submission until four days after the convening authority took action, and discussed the matters submitted on appellant’s behalf with appellant prior to submitting them.  While counsel avers he discussed the matters with appellant on the telephone before they were submitted, it is not clear in the record whether appellant reviewed a hard copy before submission. 

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 the additional matters from appellant’s R.C.M. 1105 clemency submissions is apparently through no fault of trial defense counsel; however, it is clear appellant had prepared matters which did not reach the convening authority.  Appellant thought he had submitted these matters but was unaware they were not included within the matters trial defense counsel submitted.  This is even more important in this case, as trial defense counsel allegedly submitted matters without appellant’s consent and which appellant alleges he would not have approved.

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).  We decline to speculate what the convening authority would have done if presented earlier with the clemency information appellant ostensibly desired to submit.  We return the record of trial to afford appellant an opportunity to provide matters to the convening authority for consideration.

**DECISION**

The convening authority’s initial action, dated 4 June 2009, is set aside.  The record of trial is returned to The Judge Advocate General for a new staff judge advocate recommendation and a new action by the same or different convening authority in accordance with Article 60(c)-(e), UCMJ.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

� Appellant initially pled guilty to Charge III and the Specification (maiming), and Specifications 5 and 8 of Charge V (assault), but the military judge concluded appellant was improvident and he declined to accept his guilty pleas.  Appellant was subsequently convicted of these charges and specifications in a contested case.

� We find appellant’s first assignment of error (challenging the factual and legal sufficiency of the forcible sodomy conviction) to be without merit.  

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