United States v. Starks

36 M.J. 1160, 1993 CMR LEXIS 157, 1993 WL 102107
CourtU.S. Army Court of Military Review
DecidedMarch 31, 1993
DocketACMR 9102190
StatusPublished
Cited by10 cases

This text of 36 M.J. 1160 (United States v. Starks) 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. Starks, 36 M.J. 1160, 1993 CMR LEXIS 157, 1993 WL 102107 (usarmymilrev 1993).

Opinion

OPINION OF THE COURT

DELL’ORTO, Judge:

Pursuant to mixed pleas, the appellant was found guilty, at a general court-martial composed of officer and enlisted members, of larceny (two specifications), forgery (two specifications), and making and uttering checks without sufficient funds, in violation of Articles 123, 123a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 923, 923a, and 934 (1982) [hereinafter UCMJ]. The appellant was sentenced to a dishonorable discharge, confinement for two years, and reduction to Private El. The convening authority approved the adjudged sentence.

The appellant asserts, both through appellate defense counsel and personally pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), that he was denied effective assistance of counsel when his trial defense counsel submitted a one-page request for clemency pursuant to Rule for Courts-Martial 11051 that failed to include numerous documents that the appellant had personally obtained and desired to incorporate into the request for clemency submitted to the convening authority. Because of the confusion that existed in the minds of the parties concerning the focus of responsibility for assisting the appellant in preparing and submitting his R.C.M. 1105 matters, we do not reach a conclusion concerning the effectiveness of counsel’s post-trial representation, but nevertheless grant the appellant the remedy he seeks.

The facts on this issue are lengthy and anything but clear.2 Briefly, the undisput[1162]*1162ed facts begin with the conclusion of the appellant’s court-martial on 25 September 1991. After the trial, Captain (CPT) C (at the time CPT G), who had been the appellant’s sole defense counsel throughout the lengthy pretrial and trial stages of the court-martial, introduced the appellant to CPT R. Captain C was scheduled to depart Korea on a permanent change of station within a week and CPT R was her replacement at the Camp Howze TDS office. On 2 October 1991, CPT C departed Korea for Fort Drum, New York, where she reported twelve days later. The appellant remained in Korea, where he was initially confined. On 20 November 1991, CPT C certified that she had examined the record of trial which had been sent to her at Fort Drum. On 19 December 1991, the appellant acknowledged, in writing, his receipt of a copy of the Staff Judge Advocate’s (SJA) Recommendation, dated 18 December 1991, and his right to respond to that recommendation within ten days. On the same certificate on which he initialed the above-identified acknowledgements, he indicated his intent to respond to the SJA’s recommendation pursuant to R.C.M. 1106. Although that certificate also contained a provision to notify the appellant of the deadline for submitting matters pursuant to R.C.M. 1105, no date was entered on the certificate the appellant signed.

An undated similar certificate was served on CPT C. She signed the certificate on 13 January 1992, indicated that she would make no response to the SJA’s recommendation pursuant to R.C.M. 1106, and acknowledged that the deadline for submitting matters pursuant to R.C.M. 1105 was 22 January 1992. Contained in the allied papers of the record of trial is an 8 January 1992 memorandum for record, executed by Sergeant (SGT) K, “Post-Trial NCO,” in which he summarized a telephone conversation he had with CPT C on that date concerning R.C.M. 1105 and 1106 matters per-taming to the appellant’s case and one other. Sergeant K indicated that CPT C acknowledged receiving the SJA’s recommendations in both cases before New Year’s Day, that she planned to submit a request for clemency in the appellant’s ease based upon his good service record, and that she would submit such a request via facsimile machine “by the end of this week.” On 12 January 1992, CPT C transmitted by facsimile a one-page, five-paragraph, request for clemency in the appellant’s behalf. On 18 January 1992, the SJA prepared an addendum to his recommendation in which he addressed the request for clemency and adhered to his original recommendation. The convening authority took action on 21 January 1992 without having been presented with any of the documents the appellant claims he desired the convening authority to review in determining whether to grant clemency in his case.

There are numerous facts in dispute. The appellant has submitted to this Court a package of more than twenty documents that he complains CPT C failed to submit on his behalf to the convening authority. In his 23 September 1992 affidavit, he confirms that CPT C introduced him to CPT R the evening his court-martial concluded and told him that CPT R would be his “point of contact” in Korea on his case. He complains that CPT C failed to respond to the letters and documents he sent her requesting that the documents be included in his clemency packet. He claims that he did not receive a copy of the matters CPT C did submit on his behalf.

Captain C’s countering affidavit of 29 January 1993 states that at the 25 September 1991 meeting with the appellant and CPT R, the appellant agreed to have CPT R “represent and assist him in all post-trial matters from that day forward.” She denies receiving any communication from the appellant or CPT R indicating that either [1163]*1163expected her assistance in preparing the appellant’s post-trial submissions. The clemency request she did submit resulted from a telephone call she received in mid-January 1992 from the post-trial clerk (presumably SGT K) alerting her that no post-trial submission had yet been received from anyone on the appellant’s behalf. She made this submission despite her belief that CPT R was the appellant’s “attorney for post-trial submissions.”

We have admitted and considered CPT R’s 15 March 1993 affidavit. He denies that there was ever a formal “transfer” of the attorney-client relationship from CPT C to himself and describes his role as that of a “logistical conduit” between the appellant, CPT C, and the SJA office in the submission of the appellant’s R.C.M. 1105 and 1106 matters. He denies that he ever saw a copy of the “record of trial, the post-trial recommendation or any other matters concerning this case.” He states that his office’s policy was consistent with TDS policy that cases would not be transferred when counsel departed Korea.

This Court has recently considered the issue of the effectiveness of post-trial representation in two scenarios somewhat analogous to that presented in this case, in which there existed confusion as to who would represent a soldier in the post-trial phase of his ease. In one instance, this Court held that the soldier was not provided effective assistance of counsel and set aside the convening authority’s action and returned the record for a new review and action. United States v. Garner, 34 M.J. 575 (A.C.M.R.1992). In the other, this Court held that although counsel had satisfied the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
36 M.J. 1160, 1993 CMR LEXIS 157, 1993 WL 102107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-starks-usarmymilrev-1993.