UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          COOK, GALLAGHER, and HAIGHT
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                      Private First Class JUSTIN W. RIGGS
                          United States Army, Appellant

                                   ARMY 20110340

                       Headquarters, 3rd Infantry Division
                        Tiernan P. Dolan, Military Judge
           Colonel Jonathan C. Guden, Staff Judge Advocate (pretrial)
     Lieutenant Colonel Michael K. Herring, Staff Judge Advocate (post-trial)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain A. Jason Nef, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Daniel H. Karna, JA (on brief).

                                   30 January 2013

                             ------------------------------------
                               SUMMARY DISPOSITION
                             ------------------------------------

Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of possession and distribution of child pornography, in
violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2006)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
bad-conduct discharge and confinement for twenty-four months and credited
appellant with seven days of confinement against the sentence to confinement.

       Appellant’s sole assignment of error is the convening authority failed to
consider appellant’s complete clemency matters prior to taking action on appellant's
case. On three separate occasions, 11 July, 27 July, and 5 August 2011, appellant
attempted to mail letters from his confinement facility at Fort Leavenworth, Kansas,
to his trial defense counsel at Fort Bragg, North Carolina. Each of the letters
contained information relevant to the preparation of his clemency matters and at
least one of the letters contained appellant’s personal handwritten request for
clemency. While each letter appeared to be properly addressed, all were returned to
RIGGS— ARMY 20110340

sender for “insufficient address” or “attempted – not known.” The record reflects
that not only did appellant enlist the assistance of the command judge advocate’s
office at Fort Leavenworth to ensure the proper delivery of his clemency matters,
but the convening authority was apprised of the fact that appellant’s mail was being
returned undelivered. Regardless, through no fault of appellant, his matters were
never delivered to his defense counsel for inclusion in his request for clemency and
were never considered by the convening authority.

       Our superior court has noted that an accussed’s best chance for clemency rests
with the convening authority. United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F.
1998); United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994). 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.” United States v. Spurlin, 33 M.J. 443, 445 (C.M.A. 1991). In
addition, “the convening authority’s obligation to consider defense submissions is
uniquely critical to an accused.” United States v. Hamilton, 47 M.J. 32, 35
(C.A.A.F. 1997). In this case, appellant did not receive the opportunity to fully
present matters and receive meaningful consideration of his clemency request. See
United States v. Fordyce, 69 M.J. 501, 504 (Army Ct. Crim. App. 2010). On these
facts, we decline to speculate what the convening authority would have done if
presented with the clemency information appellant desired to submit. Accordingly,
we will order a new recommendation and action to ensure appellant has a meaningful
opportunity for clemency.

       The convening authority's initial action, dated 5 October 2011, is set aside.
The record of trial is returned to The Judge Advocate General for a new Staff Judge
Advocate’s Post-Trial Recommendation (SJAR) and new initial action by the same
or a different convening authority in accordance with Article 60(c)-(e), UCMJ.  


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                        MALCOLMH.
                                       MALCOLM      H.SQUIRES,
                                                       SQUIRES,JR.
                                                                JR.
                                        Clerk of Court
                                       Clerk of Court




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