

   
   
   
   U.S. v. Johnston



IN THE CASE OF
United States, Appellee
v.
Eric L. Johnston, Fireman
Recruit
U.S. Navy, Appellant
 
No. 98-0829
Crim. App. No. 97-1274
 
United States Court of Appeals
for the Armed Forces
Argued February 10, 1999
Decided August 9, 1999
COX, C. J., delivered the opinion of the
Court in which SULLIVAN, GIERKE, and EFFRON, JJ., joined. CRAWFORD, J.,
filed a dissenting opinion.

Counsel
For Appellant: Lieutenant Mari-Rae Sopper,
JAGC, USNR (argued); Lieutenant Albert L. Di Giulio, JAGC, USNR.
For Appellee: Major Mark K. Jamison,
USMC (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief); Commander D. H. Myers,
JAGC, USN, and Major Clark R. Fleming, USMC.
Military Judge: M. T. Gerszewski
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Chief Judge COX delivered the opinion of the
Court.
On April 18, 1994, at Naval Station Long Beach,
California, appellant was tried by a military judge sitting as a special
court-martial. Pursuant to his pleas, he was convicted of 1 specification
each of unauthorized absence and wrongful introduction of marijuana onto
a military reservation with intent to distribute same, and 2 specifications
of wrongful distribution of marijuana.1/
The judge sentenced appellant to be confined for 3 months, to forfeit $550.00
pay per month for 3 months, and to be discharged from the Navy with a bad-conduct
discharge.
We granted appellants petition for review
to consider the following issues:




I
WHETHER DETAILED DEFENSE COUNSELS FAILURE
TO CONTACT APPELLANT PRIOR TO REVIEW OF, AND RESPONSE TO, THE STAFF JUDGE
ADVOCATES POSTTRIAL RECOMMENDATION WAS AN ERROR WHICH PREVENTED THE SUBMISSION
OF CLEMENCY MATTERS FROM APPELLANT TO THE CONVENING AUTHORITY, PREJUDICING
APPELLANT BY DENYING HIM HIS BEST HOPE OF SENTENCE RELIEF.

II
WHETHER SUBSTITUTE MILITARY COUNSEL SHOULD
HAVE BEEN DETAILED TO ACCEPT SERVICE AND RESPOND TO THE NEW RECOMMENDATION
OF THE STAFF JUDGE ADVOCATE SINCE APPELLANTS DETAILED DEFENSE COUNSEL
WAS NO LONGER ON ACTIVE DUTY.



The posttrial history of this case is essential
to resolution of the granted issues. The staff judge advocate (SJA) prepared
a recommendation and served it on detailed counsel, Lieutenant (Lt.) B.
Neither the recommendation nor the action of the convening authority was
dated. In the action, the convening authority purported to suspend confinement
in excess of 60 days from the date of trial. However, the action did not
state a period of time for the suspension to run.
In view of the lack of dates, the Court of
Criminal Appeals, on February 9, 1995, set aside the convening authoritys
action and ordered a new recommendation and action. It also directed that
a certificate of correction be prepared as the record failed to reflect
that seven prosecution exhibits were admitted in evidence. Unpub. op. at
2.
The military judge apparently executed a certificate
of correction on February 28, 1995. However, no further action was taken
on the record at that time. He executed a second such certificate on May
14, 1997. On August 29, 1997, a new recommendation was prepared. By that
date, Lt. B had been released from active duty and had no clear military
status. Substitute counsel was not detailed to represent appellant.
The new recommendation was served on Mr. B
at his civilian address in Colorado on October 15, 1997. He did not contact
appellant, who was on appellate leave and, ironically, also living in Colorado
at the time. Mr. B made no response, and a successor convening authority
took action on October 28, 1997. Again the sentence was approved, but confinement
in excess of 60 days was suspended for a period of 6 months from the date
of trial.
Appellant first became aware of the second
action and recommendation when he was notified of the proceedings by his
new appellate defense counsel. In response he advised appellate defense
counsel that he could have sent him documents to submit in a request for
clemency.
On March 31, 1998, the Court of Criminal Appeals
affirmed the findings and sentence as approved by the successor convening
authority. Appellant sought reconsideration of that decision, which was
denied on April 29, 1998.
The Court of Criminal Appeals concluded that
appellants former detailed defense counsel, though "no longer in the Navy[,]
. . . apparently still had an attorney-client relationship with the appellant
and continued to be reasonably available to represent him," unpub. op.
at 2, notwithstanding former counsels affidavit that he had received and
reviewed the SJAs recommendation but "did not intend to submit further
matters for consideration by the convening authority," and he "ha[d] not
been in contact with . . . [appellant] since . . . [his] release from active
duty."
In addition, the Court of Criminal Appeals
concluded that "appellant was fully represented by presumptively competent
[appellate] defense counsel" throughout. Unpub. op. at 2. However, appellant
flatly denies receiving a copy of the new recommendation; the Government
offers nothing to suggest that appellant in fact received a copy; and new
appellate defense counsel, in the petition for reconsideration at the lower
court, flatly denies being notified of the recommendation prior to the
convening authoritys action.
Thus, the "bottom line" was that appellant
was not represented by counsel under Article 27(b), UCMJ, 10 USC §
827(b), at this critical point in the criminal proceedings against him,
as required by RCM 1106(f)(2), Manual for Courts-Martial, United States
(1995 edition). See United States v. Hickok, 45 MJ 142 (1996);
United
States v. Leaver, 36 MJ 133 (CMA 1992).
The Court of Criminal Appeals also asserted
that appellant was somehow remiss by not contacting the convening authority,
Mr. B, or his appellate defense counsel. Unpub. op. at 3. This position
is not well-taken. As new appellate defense counsel correctly notes:

(1) Appellant did not know Mr. Bs whereabouts;
(2) Appellant did not know that he had an opportunity
to submit matters to be considered for clemency; and,
(3) Appellate defense counsel was not "aware
of the window of opportunity" to make such a submission because the recommendation
was not served on current appellate counsel.

This Court has long held that the accuseds best
opportunity for sentence relief is with the convening authority. See
United States v. Bono, 26 MJ 240, 243 n.3 (CMA 1988), citing United
State v. Wilson, 9 USCMA 223, 226, 26 CMR 3, 6 (1958). The failure
of the convening authority to detail substitute counsel for appellant deprived
him of that opportunity. Thus, appellant suffered harm prejudicial to his
substantial rights. Cf. United States v. Wheelus, 49 MJ 283
(1998).
Finally, we note that when records of trial
come to the Courts of Criminal Appeals with defective staff work, as was
the case here, they simply are not ready for review. Such matters include,
but are not limited to, the failure to serve detailed or substitute counsel
with a copy of the SJA's recommendation. When such an error is brought
to the attention of the Court of Criminal Appeals, that court should promptly
return the record of trial to the convening authority for preparation of
a new SJAs recommendation or convening authority's action (as appropriate),
unless the record contains the type of error that may readily be corrected
by the court without prejudice to the substantial rights of the accused.
See
United States v. Wheelus, supra.
In most cases, the better practice will be
to return the record of trial to the convening authority before appellate
counsel and the appellate courts expend any further effort on reviewing
other aspects of the case that may be affected by a proper recommendation
and action by the convening authority. It is that officials duty, not
ours, to consider what action is appropriate in the premises. Had such
action been taken herein, this case would not be before us for review.
We take this opportunity to reiterate our disagreement
with the dissenting opinion in this case, for the same reasons that we
disagreed with a similar dissent in United States v. Lee, 50 MJ
296, 299 (1999). But, we note that her view that appellant is unlikely
to get any relief from a new convening authority is an issue upon which
reasonable people might disagree.
Our opinion is not about whether this appellant
gets relief -- that is the question the convening authority must answer.
Our concern is ensuring that the law is adhered to, established procedures
are followed, and staff judge advocates do their jobs. Obviously the supervisory
responsibility for military justice advice to convening authorities lies
with the Judge Advocates General of the Armed Forces and the General Counsel
of the Department of Transportation. See United States v. Johnson-Saunders,
48 MJ 74, 76 (1998) (Crawford, J., dissenting). Hopefully, these statutory
officers are being kept abreast of the numerous cases in which this Court
must act on issues resulting from sloppy staff work and inattention to
detail. It is also hoped that they are responding by holding those responsible
accountable for their actions or lack thereof.
All this Court can do to ensure that the law
is being followed and that military members are not being prejudiced is
to send these cases back for someone TO GET THEM RIGHT.
The 1998 decision of the United States Navy-Marine
Corps Court of Criminal Appeals and the 1997 action of the convening authority
are set aside. The record of trial is returned to the Judge Advocate General
of the Navy for resubmission to that court, which may either meaningfully
reassess the sentence or order a new SJA's recommendation and convening
authority's action. United States v. Wheelus, supra.
FOOTNOTE:
1/ Articles 86 and 112a,
Uniform Code of Military Justice, 10 USC §§ 886 and 912a, respectively.
 
 
CRAWFORD, Judge (dissenting):
As recently as United States v. Wheelus,
49 MJ 283, 288 (1998), we held that we would not grant relief for post-trial
errors unless an appellant alleges an "error at the Court of Criminal Appeals,"
establishes "prejudice as a result of the error," and demonstrates what
steps he would have taken to remedy the error given the opportunity to
do so. Clearly, prejudice cannot be established in this case.
Pursuant to a pretrial agreement, appellant
was convicted of a 14-day unauthorized absence, introduction of marijuana
onto a military installation with intent to distribute, and 2 specifications
of distribution of marijuana, in violation of Articles 86 and 112a, Uniform
Code of Military Justice, 10 USC §§ 886 and 912a, respectively.
The pretrial agreement also provided for dismissal of one specification
of possessing drug paraphernalia in violation of a lawful general regulation
and placed a limitation on the sentence by providing for suspending all
confinement in excess of 60 days for 6 months from the date of trial.
The first staff judge advocates recommendation
(SJAR) was served on appellants trial defense counsel on June 10, 1994.
At that time, he acknowledged receipt of the SJAR and had no comments or
post-trial submissions for the convening authority. Appellants trial defense
counsel left active duty in September 1994, but remains in the reserves.
The record of trial was returned by the Court of Criminal Appeals for certain
corrections, and trial defense counsel received a certificate of correction
on April 29, 1997. He signed his review and receipt as a reservist. A second
SJAR was served on the same defense counsel on October 15, 1997. Again,
that same defense counsel acknowledged receipt and had no comments or submissions.
The majority poses the critical decision in
this case in its decretal paragraph by stating that the court below "may
either meaningfully reassess the sentence or order a new SJAs recommendation
and convening authoritys action." ___ MJ at [8].
I must ask whether, based on this appellants
record, there is any practical chance that with this record he would receive
a different result either from the court below or a new convening authority
action? A review of that record reveals that not 4 months after enlisting,
appellant was given an Article 15 on June 15, 1992. A second Article 15
was imposed on August 6, 1992, for failure to comply with a lawful general
regulation. A third Article 15 was imposed on December 23, 1992, for drunk
and disorderly conduct. A fourth Article 15 was imposed on November 11,
1993, for drunk and disorderly conduct, incapacitation for duty, and disrespect
toward a superior noncommissioned officer. Additionally, the punishment
imposed as a result of the fourth Article 15 was vacated on February 3,
1994, at which time a fifth Article 15 was imposed on appellant. Lastly,
appellant, while on active duty, entered a plea of nolo contendere to a
misdemeanor drug offense in state court. Not only has appellant not established
prejudice in this case, but also it is hard to imagine that any convening
authority would want to retain appellant in the Navy. Surely a convening
authority would prefer a new recruit to an individual with appellants
abysmal record.
Certainly it would have been preferable to
detail an active-duty attorney to review the certificate of correction
and second SJAs recommendation. But a competent reservist attorney who
was fully familiar with appellant and his case made that review. The course
of action he chose the second time around was just as legitimate as it
was for the first clemency petition. Letters from appellant's family, pastor,
and acquaintances were undoubtedly no match for the offense-ridden record
presented to the convening authority. This is hardly the factual circumstance
to address a reservist's competence for the post-trial review stage.
As I stated in my dissent in United States
v. Johnson-Saunders, 48 MJ 74, 76 (1998):

During this "downsizing climate," this Court
has returned numerous cases for new staff judge advocate (SJA) recommendations
and actions, see, e.g., United States v. Carnley,
46 MJ 401 (1997); United States v. Parks, 46 MJ 114 (1996); and
United
States v. Dresen, 43 MJ 372 (1995); or for resolution of questions
concerning post-trial representation by counsel, see,
e.g.,
United States v. Tise, 43 MJ 446 (1995); United States v. Dickey,
43 MJ 170 (1995); and United States v. Williams, 43 MJ 149 (1995),
but no favorable convening authority actions have been taken.

See also United States v. Catalani,
46 MJ 325 (1997); United States v. Edwards, 45 MJ 114 (1996).
However, I agree with the majority that the
Judge Advocates General or their equivalent should be aware of the numerous
cases that are coming before this Court due to sloppy staff work and inattention
to detail. See ___ MJ at (7).

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