United States v. Clemente

51 M.J. 547, 1999 CCA LEXIS 207, 1999 WL 569278
CourtArmy Court of Criminal Appeals
DecidedJuly 28, 1999
DocketARMY 9700851
StatusPublished
Cited by26 cases

This text of 51 M.J. 547 (United States v. Clemente) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Clemente, 51 M.J. 547, 1999 CCA LEXIS 207, 1999 WL 569278 (acca 1999).

Opinion

OPINION OF THE COURT

CAIRNS, Senior Judge:

A military judge, sitting as a general court-martial, convicted the appellant on his pleas of guilty of willfully disobeying a superior commissioned officer (two specifications), wrongfully using cocaine (two specifications), and larceny (five specifications), in violation of Articles 90, 112a, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 912a, and 921 [hereinafter UCMJ]. The convening authority approved the adjudged sentence consisting of a bad-conduct discharge, confinement for eighteen months, forfeiture of all pay and allowances, and reduction to Private El.

In his sole assignment of error, the appellant alleges that his trial defense counsel was ineffective by failing to call witnesses to testify during sentencing, failing to inform the appellant after trial that his clemency matters were due for submission to the convening authority, and submitting matters to the convening authority without consulting the appellant. We find no merit to the appellant’s assignment of error and affirm.

BACKGROUND

In accordance with a pretrial agreement, the appellant pled guilty, as specified above, in exchange for which the convening authority agreed to disapprove any confinement adjudged in excess of eighteen months. The appellant admitted in a stipulation of fact and during his guilty plea inquiry that he stole money, electronics, and military equipment from three roommates in the barracks. He also stole a video cassette recorder from his battalion. In each instance, the appellant used his ill-gotten gains to buy crack cocaine, and he wrongfully used the crack cocaine on two separate occasions.

After several of the thefts were reported, the appellant’s company commander identified the appellant as the perpetrator of two larcenies. As a result, the commander pulled the appellant’s pass privileges and ordered the appellant not to wear civilian clothes or to leave the military installation. The appellant willfully disobeyed the order when, after stealing again from a roommate, he left the installation in civilian clothes to buy crack cocaine. Subsequently, the appellant’s battalion commander ordered the appellant not to leave the installation. Again, the appellant stole from a roommate and left the installation, in violation of the order, for the purpose of selling the property for money with which to purchase cocaine.

During the sentencing phase of the trial, the government called one of the appellant’s roommates to testify in aggravation about how being victimized by a fellow soldier/roommate destroys the trust necessary in a military organization. The trial defense counsel attempted unsuccessfully to prevent the testimony. The defense sentencing case consisted of appellant’s unsworn statement, in which he admitted that all his problems stemmed from his drug problem. He stated that after one “incident,” he had unsuccessfully attempted to refer himself to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), but “they” told him to wait for his commander to act. He further related that since he had been in pretrial confinement, he felt better because he participated in counseling and treatment, job skills training, group therapy, and an exercise program. Finally, he stated that he had reimbursed Specialist (SPC) Nobles, one of his victims, for the money he had stolen from him.

Before the trial adjourned, the appellant stated that he had been advised of his post-trial and appellate rights; he did not have any questions about those rights; and he had signed Appellate Exhibit III, entitled POST-TRIAL AND APPELLATE RIGHTS. In Appellate Exhibit III, the appellant acknowledged that he understood that he had ten days after receipt of the staff judge advocate’s post-trial recommendation to submit [550]*550matters to the convening authority. The allied papers reflect that the appellant was served the post-trial recommendation on 29 July 1997. Forty days later, on 7 September 1997, the trial defense counsel submitted a clemency petition on appellant’s behalf, but the appellant did not submit anything personally to the convening authority. The convening authority took final action on 11 September 1997.

In an affidavit submitted in support of his assignment of error, the appellant states that while in post-trial confinement, he tried to contact his trial defense counsel several times regarding his clemency matters, but his counsel never contacted him about his post-trial submissions. If he had been “given the opportunity to submit clemency matters,” he asserts that he would have submitted letters recommending clemency from a warrant officer, two senior noncommissioned officers, and SPC Nobles, one of the victims of his larceny. The appellant did not, however, submit affidavits from these prospective witnesses or otherwise specify what they would have said. The appellant also claims in his affidavit that he told his counsel that he wanted those same four individuals to testify on his behalf during sentencing, but that his counsel told him that “because he had obtained a deal for eighteen months that those sentencing witnesses would not be necessary.” Again, the appellant does not allege what these witnesses would have said had they testified. Finally, the appellant submitted a handwritten letter, dated “Sept 1997,” that the appellate defense counsel avers appellant “would have submitted to the convening authority had his trial defense counsel contacted him and informed him of when his clemency matters were due to the convening authority.”

LAW

Under the U.S. Constitution, Article 27, UCMJ, and appellate ease law, members of the armed forces are entitled to effective assistance of counsel before trial, at trial, and post-trial. See United States v. Russell, 48 M.J. 139, 140 (1998); United States v. Hicks, 47 M.J. 90, 92 (1997); United States v. Fluellen, 40 M.J. 96, 98 (C.M.A. 1994); United States v. Scott, 24 M.J. 186, 187-88 (C.M.A.1987). The standard for measuring claims of ineffective assistance of counsel is the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Scott, 24 M.J. at 188. The first prong requires an appellant to demonstrate that his counsel’s performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The second prong requires an appellant to show that his counsel’s deficient performance prejudiced him to the extent of depriving him of “a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

The burden to establish each Strickland prong is squarely upon the shoulders of an appellant who asserts ineffective assistance of counsel. “When pressing an appellate claim of ineffective assistance of counsel, an appellant ‘must surmount a very high hurdle.’” United States v. Smith, 48 M.J. 136, 137 (1998) (quoting United States v. Moulton, 47 M.J. 227, 229 (1997)). Under

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Cite This Page — Counsel Stack

Bluebook (online)
51 M.J. 547, 1999 CCA LEXIS 207, 1999 WL 569278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clemente-acca-1999.