

   
   
   
   U.S. v. Stuart



UNITED STATES, Appellant
v.
Larry D. STUART, Jr., Senior Airman
U.S. Air Force, Appellee
 
 
No. 98-5029
Crim. App. No. 32517
 
 
United States Court of Appeals for the Armed
Forces
Argued December 16, 1998
Decided March 19, 1999
 
 
Counsel
For Appellant: Captain Steven D. Dubriske
(argued); Colonel Brenda J. Hollis and Lieutenant Colonel Michael
J. Breslin (on brief); Lieutenant Colonel Anthony P. Dattilo,
Lieutenant
Colonel Ray T. Blank, Jr., and Major Ronald A. Rodgers.
For Appellee: Captain Patience E. Schermer
(argued); Colonel Douglas H. Kohrt (on brief).
Military Judge: Michael B. McShane
 
 


This Opinion is subject
to editorial correction before final publication.




PER CURIAM:
Contrary to his pleas, appellee was convicted
by a general court-martial composed of officer members of premeditated
murder, in violation of Article 118, Uniform Code of Military Justice,
10 USC § 918. He was sentenced to a dishonorable discharge, confinement
for life, total forfeitures, reduction to the lowest enlisted grade, and
a reprimand, with a recommendation from 4 members (out of 8) for clemency
as to forfeitures. The convening authority approved all but the reprimand
and waived forfeitures for 6 months with a provision that they be paid
to the accused's children. The Court of Criminal Appeals set aside the
convening authoritys action and returned it to the convening authority
for submission of any clemency matters appellee desired to provide, followed
by a new staff judge advocate addendum and convening authority action.
The Judge Advocate General certified the case
to this Court and asked us to review the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED IN ORDERING CORRECTIVE ACTION WITHOUT A SPECIFIC FINDING
OF PREJUDICE TO THE SUBSTANTIAL RIGHTS OF THE APPELLEE.
II. WHETHER THE ERROR IN THE CONVENING AUTHORITYS
ACTION REQUIRES CORRECTION WHEN APPELLEE SUFFERED NO PREJUDICE FROM THE
ERROR.

In the proceedings before the Court of Criminal
Appeals, both parties submitted affidavits on the issue of whether counsel
was ineffective in the post-trial phase because he failed to contact appellee
before submitting clemency matters. The court observed that it would be
improper to resolve a disputed question of fact relating to post-trial
claims solely on the basis of conflicting affidavits, see United
States v. Ginn, 47 MJ 236 (1997). After concluding that there was "inadequate
evidence on which to make a determination that trial defense counsel either
was or was not ineffective," unpub. op. at 2, the court held that the case
should be returned to the convening authority for a further post-trial
proceeding.
Under Article 66(c), UCMJ, 10 USC § 866(c)
(1994), a Court of Criminal Appeals "may affirm only such findings of guilty,
and the sentence or such part or amount of the sentence, as it finds correct
in law and fact and determines, on the basis of the entire record, should
be approved." This congressional grant of authority is more than adequate
to vest authority in the Courts of Criminal Appeals to conclude that, in
a case involving confinement for life, a dispute concerning counsel's failure
to contact his client before submitting clemency matters to the convening
authority requires remedial action1.
While the court below could have stated expressly that this deficiency
constituted prejudicial error under Article 59(a), UCMJ, 10 USC §
859(a), we will not presume that the judges of that court failed to make
their own independent determination that the error met the standard of
that statute. See United States v. Cook, 46 MJ 37, 40 (1997).
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.2
FOOTNOTES:
1 We note that the Government
has not certified the question of whether the remedy should have provided
the option of a hearing under United States v. DuBay, 17 USCMA 147,
37 CMR 411 (1967), on any factual questions.
2 In light
of the new recommendation and action ordered by the Court of Criminal Appeals
and affirmed herein, the second certified question is moot, and we decline
to answer it at this time.
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