United States v. Private First Class ADAM L. BECKNER

• Court: Army Court of Criminal Appeals
• Decided: May 7, 2010
• Docket: ARMY 20080605
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before CONN, HOFFMAN, and CARLTON Appellate Military Judges

UNITED STATES, Appellant v. Private First Class ADAM L. BECKNER United States Army, Appellee

ARMY 20080605

Headquarters, Fort Stewart Tara Osborn, Military Judge Lieutenant Colonel Stacy A. Flippin, Acting Staff Judge Advocate (pretrial) Colonel Jonathan C. Guden, Staff Judge Advocate (post-trial)

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley Voorhees, JA; CPT Melissa Goforth Koenig, JA (on brief).

For Appellee: Colonel Norman F.J. Allen, III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Lynn I. Williams, JA; Captain Christopher B. Witwer, JA (on brief).

7 May 2010

----------------------------------- SUMMARY DISPOSITION ----------------------------------- Per Curiam:

This case is before the court for review under Article 66, UCMJ. Appellant alleges he suffered prejudicial error because his defense counsel submitted clemency matters to the convening authority without input from appellant. Specifically, appellant claims he would have submitted a personal statement, letters from his family and friends, and a request for deferral and waiver of forfeitures, had he been contacted by counsel. We agree appellant suffered prejudicial error and order a new recommendation and action to ensure a meaningful opportunity for sentence relief. Law and DISCUSSION 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). Consequently, a convening authority’s review of an accused’s clemency matters “is uniquely critical to an accused.” United States v. Hamilton, 47 M.J. 32, 35 (C.A.A.F. 1997).

“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.” See United States v. Spurlin, 33 M.J. 443, 445 (C.M.A. 1991) (quotations and citations omitted); see also United States v. Sosebee, 35 M.J. 892, 894 (A.C.M.R. 1992). An accused convicted by court-martial “must receive adequate and appropriate representation throughout the entire appellate process,” including post-trial clemency submissions. See United States v. Garner, 34 M.J. 575, 577 (A.C.M.R. 1992) (citations omitted). Just as counsel must inform his client what is being done on his behalf during pretrial and trial stages, “so too should counsel engage in informative discussions with the client during the post-trial stage.” United States v. Hicks, 47 M.J. 90, 93 (C.A.A.F. 1997).

Based upon appellant’s affidavit detailing what he would have submitted to the convening authority, were he afforded the opportunity, we are not confident appellant was “afforded a full opportunity to present matters to the convening authority prior to action on the case.” United States v. Hawkins, 34 M.J. 991, 995 (A.C.M.R. 1992). To address any possible prejudice flowing from the post-trial omissions and errors in this case, we order a new review an action. The facts and circumstances of this case, specifically the conduct of defense counsel in representing his client post-trial, are similar to those in our court’s opinion in United States v. Fordyce, __ M.J. __ (Army Ct. Crim. App. _ May 2010). In ordering a new review and action in this case, we reiterate the court’s significant concerns, expressed in Fordyce. We admonish trial defense counsel to be cognizant of counsel’s responsibility to advise and assist the accused in exercising his or her significant post-trial rights prior to convening authority action in future cases.

CONCLUSION

The convening authority’s initial action, dated 19 December 2008, is set aside. The record of trial is returned to The Judge Advocate General for a new staff judge advocate recommendation and a new initial action by the same or a different convening authority in accordance with Article 60(c)-(e), UCMJ. This remedy will afford appellant the requested opportunity to submit clemency matters to the convening authority.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court