## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, GALLAGHER, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 SYDNEY D. TAYLOR

United States Army, Appellant

ARMY 20110358

Headquarters, 8th Army

T. Mark Kulis h, Military Judge Colonel Jeffrey C. McKitric k, Staff Judge Advocate

For Appellant: Colone l Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Ca ptain Matthew T. Grad y, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Captain Daniel H. Karna, JA (on brief).

31 January 2013

------------------------------------- SUMMARY DISPOSITION

-------------------------------------

Per Curiam:

A military judge, sitting as a special court-martia l, convicted appellant, pursuant to his pleas, of conspiracy to commit larceny, conspiracy to obtain services under false pretenses, three specifications of larceny, and obtain ing services under false pretenses, in violati on of Articles 81, 121 and 1 34 of the Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, 934 (2006) [herei nafter UCMJ]. The convening authority approved the adjudged sentence to a bad-conduct discharge and

confinement for five months.

Upon application of the accused, Article 57b, UC MJ, enables a convening authority to defer both auto matic and adjudged fo rfeitures until the date on which the convening authority approves the sentence under Ar ticle 60, UCMJ. Additionally, under Article 58b, UCMJ, if an accused has depende nts, a convening authority

― may waive any or all of the [aut omatic] forfeitures of pay and allowances . . . for a pe riod not to exce ed six months, and such money

― shall be paid . . . to th e dependents of the accused. See also R.C.M. 1101(d)(1).TAYLOR— ARMY 20110358

2 In this case, appellant a lleges that he was denied his Sixth Amendment right to effective assistance of counsel in the po st-trial phase of his court-martial when his

defense counsel failed to request deferment and/or waiver of automatic forfeitures in

accordance with Articles 57b and 58b, UCMJ. In addition, appellant argues he did not receive the opp ortunity to fully pr esent clemency matters because he was not adequately advised on the di stinction between automatic a nd adjudged forfeitures. Had appellant been properly advised, he would have reques ted the convening authority defer and/or waive automatic forf eitures at action for the benefit of his dependents. This issue ha s added significance in a ppellant’s case because his pretrial agreement insulated appellant from adjudged, but not auto matic, forfeitures. Such a provision reflects appellant’s desi re to obtain moneta ry relief and the convening authority’s willingnes s to grant that relief.

The government concedes that appellan t indicated his desire to request

deferment and/or waiver of automatic forfeitures on his post-trial and appellate rights form an d that this desire did not change prior to acti on. As a result, the government concedes appellant did not receive the opportunity to submit his complete clemency matters to the convening authority.

Without addressing ap pellant’s claim of ineffective assistance of counsel, we

note our superior court ha s held an accused’s best chan ce for clemency rests with the convening authority. 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). If the convening authority “has not seen a convicted se rvicemember’s clemency submission, it is well established that he has not b een afforded his best hope for

sentence relief.” United States v. Spurlin , 33 M.J. 443, 445 (C.M.A. 1991). In addition, “the convening authority’s obliga tion to consider de fense submissions is uniquely critical to an accused.” United States v. Hamilton , 47 M.J. 32, 35 (C.A.A.F. 1997). In this case, appellant did not re ceive the opportu nity to fully present matters and receive meaningful consideration of his clemency request because he was unable to request the co nvening authority defer and/or waive the

automatic forfeitures in his case. See United States v. Fordyce , 69 M.J. 501, 504 (Army Ct. Crim. App. 2010). On these fact s, we decline to speculate what the convening authority would ha ve done if presented with the clemency information appellant desired to submit. Accordingl y, we will order a ne w recommendation and action to ensure appell ant has a meaningf ul opportunity for clemency.

Further, assuming without de ciding that sentence disp arity in closely related cases rises to the level of legal error, we note the SJA failed to address the issue in accordance with R.C.M. 1106(d)(4). “F ailure by the [SJA] to respond to an allegation of legal error . . . requires rema nd to the [CA] for comment by the [SJA].”

United States v. Hill , 27 M.J. 293, 297 (C .M.A. 1988).TAYLOR— ARMY 20110358

3 CONCLUSION

The convening authority's initial action, dated 28 July 2011, is set aside. The

record of trial is returned to The J udge Advocate General for a new Staff Judge Advocate’s Post-Trial Recommendation (SJA R) and new initial ac tion by the same or a different convening authority in acc ordance with Article 60(c)-(e), UCMJ. Appellant should rece ive a newly appointed defense counsel to assist with the preparation of his clemency matters.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: