                         UNITED STATES, Appellee

                                         v.

                     Robert J. ROSENTHAL, Private
                     U.S. Marine Corps, Appellant

                                  No. 05-0244
                          Crim. App. No. 9901332

       United States Court of Appeals for the Armed Forces

                         Argued November 2, 2005

                       Decided December 20, 2005

                                   PER CURIAM



                                     Counsel



For Appellant:    Lieutenant Jason S. Grover JAGC, USN (argued).


For Appellee: Major Kevin C. Harris, USMC (argued); Colonel
Ralph F. Miller, USMC (on brief); Commander C. N. Purnell, JAGC,
USN, and Lieutenant Guillermo J. Rojas, JAGC, USNR.




Military Judge:    F. A. Delzompo




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rosenthal, No. 05-0244/MC


    PER CURIAM:

    At a special court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his pleas,

of wrongful use of amphetamine/methamphetamine and marijuana,

in violation of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912a (2000).       The adjudged sentence included

a bad-conduct discharge, confinement for four months, and

forfeiture of $639.00 pay per month for four months.      The

convening authority approved the sentence, and suspended

confinement in excess of thirty days for twelve months pursuant

to a pretrial agreement.   On appeal, the United States Navy-

Marine Corps Court of Criminal Appeals set aside the convening

authority’s action and remanded the case for a new action in an

unpublished opinion.   United States v. Rosenthal, No. NMCCA

9901332 (N-M. Ct. Crim. App. Nov. 29, 2000).      The convening

authority, in the new action, approved the sentence, subject to

the same provisions for limited suspension of confinement.        The

Court of Criminal Appeals affirmed the findings and sentence in

an unpublished opinion.    United States v. Rosenthal, No. NMCCA

9901332, 2004 CCA LEXIS 195, 2004 WL 1917880 (N-M. Ct. Crim.

App. Aug. 27, 2004).

     On Appellant’s petition, we granted review of the following

issue:




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United States v. Rosenthal, No. 05-0244/MC


     WHETHER THE LOWER COURT ERRED IN FINDING THAT
     APPELLANT WAIVED HIS RIGHT TO SUBMIT CLEMENCY MATTERS
     IN HIS SECOND POST-TRIAL REVIEW PROCESS.


For the reasons discussed below, we remand for a new post-trial

review and action.

     Before a convening authority acts on the results of trial,

an accused has the opportunity to “submit to the convening

authority any matters that may reasonably tend to affect the

convening authority’s decision whether to disapprove any

findings of guilty or to approve the sentence.”    Rule for

Courts-Martial (R.C.M.) 1105(b)(1).   See Article 60(b)(1), UCMJ,

10 U.S.C. § 860(b)(1) (2000).   The convening authority’s action

provides the accused’s “best hope” for clemency.   United States

v. Stephenson, 33 M.J. 79, 83 (C.M.A. 1991).   See, e.g., United

States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001); United

States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 1998).

     Under R.C.M. 1105(d)(1), “[f]ailure to submit matters

within the time prescribed by th[e] rule shall be deemed a

waiver of the right to submit such matters.”   R.C.M. 1105(d)(3)

provides:   “The accused may expressly waive, in writing, the

right to submit matters under this rule.   Once filed, such

waiver may not be revoked.”   A waiver under R.C.M. 1105(d) must

be knowing and intelligent.   See Stephenson, 33 M.J. at 83 (A

defense counsel’s deficient advice regarding appellant’s post-



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United States v. Rosenthal, No. 05-0244/MC


trial rights “could not possibly produce a knowing and

intelligent waiver of appellant’s right to submit clemency

matters.”).   We consider the issue of waiver as a question of

law under a de novo standard of review.   See United States v.

Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002).

     Prior to the convening authority’s initial action on the

results of trial in the present case, Appellant did not file

either a post-trial submission or a written waiver of the right

to do so under R.C.M. 1105(d)(3).    Pursuant to written

instructions from Appellant, defense counsel did not submit

clemency matters to the convening authority.    Absent such a

submission, the convening authority could proceed on the basis

that Appellant had waived his right to make such a submission

under R.C.M. 1105(d)(1).   In the present appeal, Appellant does

not challenge the application of the waiver rule to the

convening authority’s initial action.

     Subsequently, the Court of Criminal Appeals set aside the

convening authority’s action and remanded the case for a new

action.   The staff judge advocate prepared a new recommendation

to the convening authority and served it on defense counsel.

Although nearly two years had passed since the first post-trial

proceeding, defense counsel did not contact Appellant or

otherwise ensure that his client was informed of the new post-

trial proceeding and the opportunity to submit matters to the


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United States v. Rosenthal, No. 05-0244/MC


convening authority.   Instead, counsel relied on the

instructions provided by Appellant two years earlier in the

immediate aftermath of trial, and decided not to provide any

post-trial submission on his client’s behalf during the new

post-trial proceeding.

     When a case is remanded for a new convening authority’s

action, the convening authority is not limited to considering

the circumstances as they existed at the time of the initial

review.   The convening authority may consider other appropriate

matters -- including changes in circumstances following the

initial action on the case -- for purposes of determining

whether clemency or other post-trial action is warranted.      See

R.C.M. 1107(b)(1); 1107(b)(3)(B)(iii); 1107(d).      A servicemember

has the corresponding right to bring “[m]atters in mitigation

which were not available for consideration at the court-martial”

to the attention of the convening authority.      See R.C.M.

1105(b)(2)(C).

     A decision by an appellate court to set aside the convening

authority’s action on the results of trial is a significant

development because it entitles an appellant to a new post-trial

proceeding.   Counsel for an appellant should ascertain the

client’s views before deciding how to address the opportunities

presented by the new proceeding.       See Dep’t of the Navy, Judge

Advocate General, JAGINST 5803.1B, Professional Conduct of


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United States v. Rosenthal, No. 05-0244/MC


Attorneys Practicing Under the Cognizance and Supervision of the

Judge Advocate General, R. 1.4 and cmt. (2000) (rule entitled

“Communication”).   Counsel cannot assume that a client, who

previously declined to seek clemency in the immediate aftermath

of a trial, will necessarily have the same view when an

appellate court orders a new recommendation and action --

particularly when the opportunity to make a new submission

arises more than two years later.    In this case, it was error

for counsel to proceed without ensuring that Appellant had made

a knowing and intelligent waiver of the right to make a

submission during the second post-trial review process.

     We test this error for prejudice.    “Because clemency is a

highly discretionary Executive function, there is material

prejudice to the substantial rights of an appellant if there is

an error and the appellant ‘makes some colorable showing of

possible prejudice.’”   Wheelus, 49 M.J. at 289 (citing United

States v. Chatman, 46 M.J. 321, 323-34 (C.A.A.F. 1997)).

Appellant’s unrebutted affidavit provides evidence relevant to

clemency regarding changes in Appellant’s circumstances during

the two-year period between the convening authority’s first and

second actions.   Appellant stated that he had matured, ceased

his drug use, was studying for a commodity broker’s license, and

wished to stay in the Marine Corps.   The decision as to whether

any or all of these matters would warrant clemency is a matter


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United States v. Rosenthal, No. 05-0244/MC


committed to the discretion of the convening authority under

Article 60(c), UCMJ, 10 U.S.C. § 860(c) (2000), and R.C.M. 1107.

For purpose of this appeal, Appellant has demonstrated a

colorable showing of possible prejudice.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is set aside.   The record is returned to the

Judge Advocate General of the Navy for remand to the convening

authority for a new post-trial review and action.




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