UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                          TOZZI, CAMPANELLA, and CELTNIEKS
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Private E1 MICHAEL A. NICKS
                            United States Army, Appellant

                                       ARMY 20110658

                     Headquarters, III Corps and Fort Hood
                       Patricia H. Lewis, Military Judge
  Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate (pre-trial)
              Colonel Stuart W. Risch, Staff Judge Advocate (trial)
Colonel Richard W. Rousseau, Acting Staff Judge Advocate (recommendation after
                                    remand)
    Colonel Tania M. Martin, Staff Judge Advocate (addendum after remand)
  Colonel Ian G. Corey, Staff Judge Advocate (second addendum after remand)


For Appellant: Major Yolanda McCray Jones, JA; Major Kevin F. Sweeny, JA (on
brief).

For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Major John
C. Choike, JA; Captain Scott L. Goble, JA (on brief).


                                       31 October 2014

                    --------------------------------------------------------------
                    SUMMARY DISPOSITION ON FURTHER REVIEW
                    --------------------------------------------------------------
Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of conspiracy, one specification of
making a false official statement, four specifications of larceny, two specifications
of forgery, one specification of assault consummated by a battery, and one
specification of housebreaking, in violation of Articles 81, 107, 121, 123, 128, and
130, 10 U.S.C. §§ 881, 907, 921, 923, 928, 930, Uniform Code of Military Justice
(2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for two years, total forfeitures, and reduction to the grade of
Private (E–1). The convening authority approved thirteen months confinement, and
the remainder of the sentence as adjudged.
NICKS—ARMY 20110658

       This case is before us for review under Article 66, UCMJ. In a previous
opinion, this court set aside the Convening Authority’s initial action, dated 23
March 2012 and returned the record of trial for a new staff judge advocate post-trial
recommendation (SJAR) by the same or a different convening authority to allow the
appellant to submit a request for waiver of forfeitures which he alleged he wanted
but was never submitted. United States v. Nicks, ARMY 20110658, 2013 CCA
LEXIS 789 (Army Ct. Crim. App. 30 September 2013). This court also ordered that
appellant receive a newly-appointed defense counsel to assist with the preparation of
his clemency matters since appellant alleged ineffective assistance of counsel in the
handling of his previous post-trial submission.

       On 3 October 2013, the case was remanded to the III Corps and Fort Hood
convening authority and received by the Staff Judge Advocate (SJA) on 11 October
2013. According to the SJA’s addendum to an earlier recommendation (SJAR),
“holidays and post-trial workload” delayed the preparation and serving of a new
SJAR until 26 February 2014. Captain (CPT) MJ was detailed by the senior defense
counsel to represent appellant on 3 March 2014. On 6 March 2014, the SJAR was
mailed to appellant at two different addresses in Marysville, California. One
address was that furnished by appellant in his Post-trial Advice and Rights form and
his excess leave paperwork; the second address was discovered by personnel in the
Office of the Staff Judge Advocate after performing a records search on Westlaw.
Perhaps not surprisingly, given the inordinate amount of time it took the SJA to draft
and serve the new SJAR, the California addresses were no longer accurate.

       In a 27 June 2014 memorandum to the Commander, III Corps and Fort Hood,
CPT MJ chronicles her unsuccessful attempts to contact appellant and establish an
attorney-client relationship. We find remarkable that CPT MJ was unable to find
appellant; made no effort to contact Major KS, appellant’s appellate defense
counsel; but was able to converse with CPT JT, appellant’s prior trial defense
counsel, against whom appellant lodged a complaint of ineffective assistance of
counsel.

       According to appellant’s 19 September 2014 affidavit, filed
contemporaneously with his current pleadings before us, “[a]fter my case was
remanded, I waited for a new trial defense counsel to contact me[,] but no one ever
did. I checked in with [MAJ KS] approximately once a month either by phone or by
email and kept him updated with my current contact information. For example, in a
series of emails between March 19th and March 24th, I inquired with [MAJ KS]
whether he had any case updates for me, informed him that I had not received a call
or email from any trial defense counsel, and updated him on my new address in
Texas and new phone number.” Captain MJ’s aforementioned memorandum
confirms that she was unable to contact appellant and, thus, was unable to form an
attorney-client relationship with appellant. Captain MJ noted in her memorandum
that she was not authorized to submit clemency matters on appellant’s behalf. The



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NICKS—ARMY 20110658

convening authority took action in appellant’s case on 15 July 2014, again approving
thirteen months confinement and the remainder of the adjudged sentence.

       The concern of this court is to ensure that appellant receives a meaningful
opportunity for clemency consistent with the initial remand of this case for a new
SJAR and action. Rules for Courts-Martial 1105-1106. Appellant still has not
received a meaningful opportunity to present complete clemency matters. See
United States v. Johnston, 51 M.J. 227, 229 (C.A.A.F. 1999). It is apparent from the
pleadings in this case that appellate defense counsel was in contact with appellant,
yet did absolutely nothing to further his client’s interests by contacting the Fort
Hood Trial Defense Service Office or SJA’s Office with appellant’s new Texas
address and phone number. The fact that the defense team – both trial and appellate
– did not communicate with each other to ensure that appellant was represented for
his second clemency submission is disturbing. The subsequent claim that the SJA
erroneously served the SJAR on a defense counsel who did not have an attorney-
client relationship with the appellant is equally disturbing under these facts, where
Trial Defense Service apparently failed to detail a defense counsel until after a new
SJAR was prepared and served.

       Contrary to the government’s contention, it was not appellant who thwarted
the forming of an attorney-client relationship with newly-detailed defense counsel.
While we do not condone appellant’s wait-and-see approach to further his own
interests, the problem here was the failure of the defense team – both trial and
appellate – to communicate and protect the interests of appellant. This is not a case
where appellant cannot be contacted. Rather, MAJ KS was in contact with appellant,
but CPT MJ apparently never learned this fact. What is truly disturbing here is that
these facts and circumstances continue to further delay the fair and efficient
administration of military justice for appellant.

                                   CONCLUSION

        The convening authority's action, dated 15 July 2014, is set aside. The record
of trial is once again returned to The Judge Advocate General for a new SJAR and
new action by the same or a different convening authority in accordance with Article
60(c)-(f), UCMJ.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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


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