United States v. Specialist ANTHONY R. ELLINGTON

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges

UNITED STATES, Appellee v. Specialist ANTHONY R. ELLINGTON United States Army, Appellant

ARMY 20100667

Headquarters, Fort Stewart Tara Osborn and Tiernan P. Dolan, Military Judges Lieutenant Colonel Robert J. Gleason, Acting Staff Judge Advocate (pretrial) Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate (post-trial)

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA; Captain Richard M. Gallagher, JA (on brief).

For Appellee: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA; Captain Kenneth W. Borgnino, JA; Captain Christopher L. Simons, JA (on brief).

30 June 2011

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

On 14 August 2010, a military judge sitting as a general court- martial convicted appellant, pursuant to his pleas, of assault and battery (two specifications), aggravated assault, and child endangerment in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 [hereinafter UCMJ]. The convening authority approved the adjudged sentence of reduction to the grade of E1, forfeiture of all pay and allowances, confinement for thirty-two months and a bad-conduct discharge.

Twelve days after trial, trial defense counsel submitted a timely request to the convening authority requesting a deferment of adjudged forfeitures and deferment and waiver of automatic forfeitures. This request was based, in part, on appellant’s assertion that he provided child support, both voluntarily and in accordance with a court order, to his dependant daughter from a prior marriage. The request, which asked for expedited processing, was sent by e-mail to both the trial counsel and Fort Stewart chief of justice. Government counsel concedes that the request was never forwarded to the staff judge advocate (SJA) or convening authority. Not surprisingly, the staff judge advocate recommendation (SJAR) fails to mention appellant’s request.

Failure of the SJA to convey appellant’s unambiguous request to defer adjudged forfeitures and to defer and waive automatic forfeitures amounts to plain error. Under the facts of this case, we find appellant has made a “colorable showing of possible prejudice.” United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998). The matters outlined in appellant’s 2 August 2010 deferment/waiver request demonstrate a “reasonable probability” of favorable action by the convening authority. See United States v. Clemente, 51 M.J. 547, 552 (Army Ct. Crim. App. 1999).

The action of the convening authority, dated 29 October 2010, is set aside. The record of trial is returned to the Judge Advocate General for a new staff judge advocate recommendation and new action by the same convening authority in accordance with Article 60 (c)–(e), UCMJ.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court