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

                            UNITED STATES, Appellee
                                        v.
                         Private E1 SYDNEY D. TAYLOR
                          United States Army, Appellant

                                   ARMY 20110358

                              Headquarters, 8th Army
                          T. Mark Kulish, Military Judge
                Colonel Jeffrey C. McKitrick, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain Matthew T. Grady, JA (on brief).

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

                                    31 January 2013

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

Per Curiam:

       A military judge, sitting as a special court-martial, convicted appellant,
pursuant to his pleas, of conspiracy to commit larceny, conspiracy to obtain services
under false pretenses, three specifications of larceny, and obtaining services under
false pretenses, in violation of Articles 81, 121 and 134 of the Uniform Code of
Military Justice, 10 U.S.C. §§ 881, 921, 934 (2006) [hereinafter UCMJ]. The
convening authority approved the adjudged sentence to a bad-conduct discharge and
confinement for five months.

       Upon application of the accused, Article 57b, UCMJ, enables a convening
authority to defer both automatic and adjudged forfeitures until the date on which
the convening authority approves the sentence under Article 60, UCMJ.
Additionally, under Article 58b, UCMJ, if an accused has dependents, a convening
authority ―may waive any or all of the [automatic] forfeitures of pay and
allowances . . . for a period not to exceed six months, and such money ―shall be
paid . . . to the dependents of the accused. See also R.C.M. 1101(d)(1).
TAYLOR— ARMY 20110358

       In this case, appellant alleges that he was denied his Sixth Amendment right
to effective assistance of counsel in the post-trial phase of his court-martial when his
defense counsel failed to request deferment and/or waiver of automatic forfeitures in
accordance with Articles 57b and 58b, UCMJ. In addition, appellant argues he did
not receive the opportunity to fully present clemency matters because he was not
adequately advised on the distinction between automatic and adjudged forfeitures.
Had appellant been properly advised, he would have requested the convening
authority defer and/or waive automatic forfeitures at action for the benefit of his
dependents. This issue has added significance in appellant’s case because his
pretrial agreement insulated appellant from adjudged, but not automatic, forfeitures.
Such a provision reflects appellant’s desire to obtain monetary relief and the
convening authority’s willingness to grant that relief.

       The government concedes that appellant indicated his desire to request
deferment and/or waiver of automatic forfeitures on his post-trial and appellate
rights form and that this desire did not change prior to action. As a result, the
government concedes appellant did not receive the opportunity to submit his
complete clemency matters to the convening authority.

        Without addressing appellant’s claim of ineffective assistance of counsel, we
note  our superior court has held an accused’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
because he was unable to request the convening authority defer and/or waive the
automatic forfeitures in his case. 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.

       Further, assuming without deciding that sentence disparity in closely related
cases rises to the level of legal error, we note the SJA failed to address the issue in
accordance with R.C.M. 1106(d)(4). “Failure by the [SJA] to respond to an
allegation of legal error . . . requires remand to the [CA] for comment by the [SJA].”
United States v. Hill, 27 M.J. 293, 297 (C.M.A. 1988).




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TAYLOR— ARMY 20110358

                                   CONCLUSION

       The convening authority's initial action, dated 28 July 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.
Appellant should receive a newly appointed defense counsel to assist with the
preparation of his clemency matters.  

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




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