United States v. Jackson

34 M.J. 783, 1992 CMR LEXIS 240, 1992 WL 39316
CourtU.S. Army Court of Military Review
DecidedFebruary 28, 1992
DocketACMR 9002543
StatusPublished
Cited by4 cases

This text of 34 M.J. 783 (United States v. Jackson) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jackson, 34 M.J. 783, 1992 CMR LEXIS 240, 1992 WL 39316 (usarmymilrev 1992).

Opinion

OPINION OF THE COURT

PER CURIAM:

Contrary to his pleas, the appellant was convicted by a military judge sitting as a general court-martial of three specifications of wrongful possession and distribution of marijuana in the hashish form and one specification of conspiracy to distribute marijuana in the hashish form in violation of Articles 112a and 81, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 881 (1982 & Supp V 1987). The convening authority approved the adjudged sentence of a dishonorable discharge, confinement for fifteen years, forfeiture of all pay and allowances, and reduction to Private El.

The appellant asserts, among other errors, that he was denied the effective post-trial assistance of counsel in preparing a post-trial submission pursuant to Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 1105 [hereinafter R.C.M.]. We agree.

In an affidavit submitted to this Court, the appellant claims that after trial his civilian trial defense counsel, Mr. F: (1) discussed clemency, but told the appellant that “since [he] had been convicted, there was not much else he could do for [him]”; (2) did not discuss the appellant’s right to submit clemency matters; and (3) did not discuss the decision not to submit clemency matters on behalf of the appellant. Mr. F claims, also by affidavit, that: (1) the contract to represent the appellant at his court-martial did not include post-trial matters and that this was explained to and understood by the appellant; (2) the appellant read, understood, and signed his “Appellate Rights Advice” form; (3) the appellant was advised to immediately contact the trial defense service in Mannheim should he wish to submit post-trial matters; and (4) he received no word from the appellant or the trial defense service that the appellant wished to submit clemency matters. In addition to these conflicting affidavits, this Court considered the record of trial and the allied papers.

The appellant was initially represented by Mr. F and his detailed military defense counsel, Captain (CPT) T. During a pretrial session to schedule the case for trial, Mr. F stated that, “[w]e are prepared to go without TDS assistance, Your Honor.” After tentatively scheduling a date on which CPT T would be on leave, the military judge conducted the following inquiry of the appellant and Mr. F:

MJ: [Mr. F], how does the 11th of September suit you?
IC: That will be fine, Your Honor.
MJ: Captain [T], is on leave. Sergeant Jackson, will you excuse Captain [T] from further participation at this trial if the trial proceeds on 11 September?
AC: Yes, Your Honor.
MJ: Do you excuse him, [Mr. F]?
IC: Yes, Your Honor.
MJ: So I will excuse you from further participation, with your blessings, Sergeant Jackson, as of the conclusion of this hearing this morning, is that right?
AC: I don’t understand, sir.
MJ: When we stop the proceeding—the purpose of this trial is to set a trial date and learn about motions and all that. We’ve done that. With your concurrence, I will excuse Captain [T] from further participation when we finish this morning.
AC: Yes, Sir.

After the trial, on 12 September 1990, the appellant signed an “Appellate Rights Advice” form, with the assistance of Mr. F, which included the statement, “In exercising your post-trial and appellate rights, or before you decide to waive them, you have the right to the advice and assistance of military counsel provided free of charge or civilian counsel provided by you at no expense to the Government.”

The next documented communication between the appellant and Mr. F is a letter to the appellant dated 24 October 1990, in [785]*785which Mr. F states, inter alia, that, “I am afraid that I must ask what arrangements have been made to pay my bill and what arrangements would be made for any further time I may spend on the case.” After this, no evidence of any further communication between the appellant and Mr. F appears in the record of trial or the allied papers.

There is evidence of communication between Mr. F and the Office of the Staff Judge Advocate concerning the post-trial representation of the appellant. First is a Memorandum for Record (MFR) dated 2 November 1990, by Sergeant (SGT) L, a legal specialist handling post-trial matters in the Office of the Staff Judge Advocate, stating that she called Mr. F at his home and asked him if he would be representing the appellant for post-trial matters. Mr. F responded that he would. The MFR also indicates that, “[t]he record of trial was then served on [Mr. F] by express mail on 22 October 1990.” Second is an undated document signed by Mr. F, entitled “Certificate of Service”, indicating that he was served with a copy of the record of trial on 22 October 1990, and with a copy of the Staff Judge Advocate’s Recommendation on 3 November 1990. This document also had an optional block in which inapplicable language could be lined through. By lining through the other language, Mr. F left the statement that, “I have not been in contact with the accused and do not know his intentions in submitting matters to the convening authority under R.C.M. 1105.” Third is a second MFR by SGT L dated 15 November 1990, showing that the aforementioned “Certificate of Service” was received on 15 November 1990; that SGT L called Mr. F that same day for clarification; and that he replied that “no additional matters would be submitted in the case by [him F] on behalf of his client.”

The thrust of the government argument is that Mr. F’s contract with the appellant did not include post-trial matters, and this Court should not interfere in that contractual relationship. The appellant, however, urges us that Mr. F unilaterally terminated the contract, abandoned the appellant with respect to the submission of post-trial matters, and that this Court should find that Mr. F inadequately represented the appellant regarding post-trial clemency matters. We hold that the appellant was denied the effective assistance of counsel in preparing a post-trial submission to the convening authority.

In determining the adequacy of post-trial representation, we will apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and made applicable to military courts-martial by United States v. Scott, 24 M.J. 186, 188 (C.M.A.1987). For the appellant to be successful in his assertion of inadequate post-trial representation, the appellant “must first show that his counsel’s representation was deficient and then, that such deficiency worked to his detriment.” United States v. Harris, 30 M.J. 580, 582 (A.C.M.R.1990).

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Cite This Page — Counsel Stack

Bluebook (online)
34 M.J. 783, 1992 CMR LEXIS 240, 1992 WL 39316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jackson-usarmymilrev-1992.