United States v. Magnan

52 M.J. 56, 1999 CAAF LEXIS 1273

• Court: Court of Appeals for the Armed Forces
• Decided: September 29, 1999
• Docket: 98-1001/MC
• Status: Published

Opinions

Judge CRAWFORD

delivered the opinion of the Court.

Pursuant to his pleas, appellant was convicted at a special court-martial of absence without leave (AWOL) from April 6, 1997, to a termination by apprehension on July 28, 1997. The convening authority approved the sentence of a bad-conduct discharge and 36 days’ confinement. The Court of Criminal Appeals affirmed the findings and sentence. We granted review of the following issue:

WHETHER THE STAFF JUDGE ADVOCATE ERRED BY FAILING TO NOTE IN HIS RECOMMENDATION TO THE CONVENING AUTHORITY THAT THE MILITARY JUDGE STRONGLY RECOMMENDED THAT THE CONVENING AUTHORITY SUSPEND APPELLANT’S BAD-CONDUCT DISCHARGE, WHICH IN TURN CAUSED THE CONVENING AUTHORITY TO ERRONEOUSLY APPROVE THE SENTENCE WITHOUT BEING FULLY INFORMED OF ALL CLEMENCY MATTERS.

We also specified the following issue:

WHETHER DEFENSE COUNSEL RENDERED INEFFECTIVE POST-TRIAL REPRESENTATION OF APPELLANT WHEN HE (1) STATED IN HIS RCM 1106(f)(4) RESPONSE THAT HE HAD NO “COMMENTS OR CORRECTIONS TO SUBMIT” TO THE STAFF JUDGE ADVOCATE’S RECOMMENDATION RATHER THAN CORRECTING THE STAFF JUDGE ADVOCATE’S INCORRECT STATEMENT THEREIN THAT THERE WAS NO CLEMENCY RECOMMENDATION FROM THE MILITARY JUDGE; AND (2) FAILED TO SUBMIT ANY CLEMENCY MATTERS FOR THE CONVENING AUTHORITY’S CONSIDERATION UNDER RCM 1105.

We affirm the decision below based on a knowing waiver by appellant.

Appellant, a Native American, pleaded guilty to a single specification alleging unauthorized absence commencing April 6, 1997, and terminating by apprehension on July 28, 1997. Appellant indicated that he commenced his absence during a weekend liberty and went to a Native American tribal area in Montana. He went to Montana to assist the single mother who had taken him in when his natural mother would no longer care for him. Local civilian police apprehended appellant in Montana for being absent from the Marine Corps.

During his unsworn statement, appellant was very frank about his AWOL and his future with the Marine Corps. He felt that his enlistment was a mistake. He felt a superior obligation to the family that had taken him in. Appellant felt that the only contributions he could make would be at home, in Montana, not in the Marine Corps. Appellant requested a bad-conduct discharge.

The military judge sentenced appellant to confinement for 36 days (the precise time appellant had served in pretrial confinement) and a bad-conduct discharge. The military judge then stated:

I’m going to make a recommendation to the convening authority at this point that he suspend your BCD so you would be separated administratively instead of getting out with a bad-conduct discharge____

Hi * *

I want to note for the record that during the entire proceedings, the extreme remorse that I noted that you demonstrated to this court, and that you’re — this seemed to be a real trying thing for you.

In his recommendation to the convening authority, the staff judge advocate (SJA) not only failed to mention the recommendation of the military judge, but affirmatively stated: “Clemency recommendation by the court or military judge: None.” The SJA opined that “nothing offered by the defense during the trial warrants clemency.” The convening authority was not informed of the observations and recommendation of the military judge.

The misstatement by the SJA as to no clemency recommendation by the judge was error. But there is no evidence in the record that this was a knowingly intentional misstatement designed to prejudice appellant.

Over the years, this Court has noted numerous misstatements in staff judge advocates’ recommendations, e.g., failure to mention the accused’s service awards. See United States v. Demerse, 37 MJ 488 (CMA 1993); United States v. Hollon, 39 MJ 38 (CMA 1993). In none of these cases, however, have we accused the SJA of intentional misconduct. Nor have we excused the error. Most errors are the result of oversight and are easily correctable.

United States v. Clear, 34 MJ 129 (CMA 1992), is distinguishable from the present case. The judge in Clear recommended that the accused be sent to a retraining unit and offered the opportunity to earn a conditional suspension of his discharge. Rather than mention the military judge’s clemency recommendation, the SJA stated that he found no reason to grant clemency and recommended that the accused be sent to a confinement facility, rather than the retraining unit. In Clear, the record was inadequate to support the rationale of trial defense counsel’s failure to comment on the SJA’s recommendation not to send Clear to a retraining unit. In the present case, however, the record supports the rationale of trial defense counsel because appellant, in an unsworn statement, requested a bad conduct discharge.

As to the SJA’s recommendation and a possible defense submission, defense counsel stated in a post-trial affidavit:

After trial, I fully discussed with Pvt. Mag-nan the fact that the Military Judge had taken the unusual step of recommending that the punitive discharge be disapproved or mitigated by the convening authority. I explained to him the possibility that the convening authority would heed the military judge’s recommendation. I also urged him to pursue this possibility and told him what I planned to do regarding a clemency request and related matters. I told him the chances of his having the bad-conduct discharge disapproved or suspended were excellent. Despite this, Pvt. Mag-nan specifically instructed me not to request clemency or seek any suspension of the punitive discharge. His reasoning was that he did not want to do anything which might in any way delay his discharge from the Marine Corps.

Based on this uncontradicted affidavit, it is clear that there is an “intentional relinquishment or abandonment of a known right.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); see, e.g., Freytag v. Commissioner, 501 U.S. 868, 894 n. 2, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991).

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.