United States v. Foxx, No. 20110272 (A.Ct.Crim.App. May 29, 2013).
Accused convicted, in accordance with his pleas, of bigamy (yes, really) in violation of Article 134. Sentenced to confinement for two months, forfeitures, reduction to E-1, and a bad-conduct discharge. This was his second of two courts-martial in 2011; the first occurred on January 27 (for wearing unauthorized awards), and this one occurred on April 5. He alleged – perhaps unsurprisingly – ineffective assistance of counsel, in part because his defense counsel “‘allowed’ appellant, who had sixteen years of service, to request a bad-conduct discharge during sentencing.” Slip op. at 2 (the world “allowed” is in quotes in the opinion). The CCA affirms the findings and sentence.
United State v. Whigham, No. 20110181 (A.Ct.Crim.App. Jun. 4, 2013).
Accused convicted, contrary to his pleas by a general court-martial composed of officer and enlisted members, of two specifications each of violating a general regulation and aggravated sexual assault, in violation of Articles 92 and 120(c), and sentenced to confinement for four years, total forfeitures, and a dishonorable discharge. The Accused was an instructor at Advanced Individual Training at Aberdeen Proving Ground, and this was his second of two courts-martial regarding sexual misconduct with students under his charge. Before the CCA he alleges legal and factual insufficiency, and improper admission of evidence under Mil.R.Evid. 404(b) and 413 (relating to sexual contact with students leading to his first court-martial, where he pleaded guilty to improper relationships with trainees). The CCA affirms the findings and sentence.
United State v. Axtell, No. 20120267 (A.Ct.Crim.App. Jun. 5, 2013) (en banc).
Accused convicted, pursuant to his pleas, of conspiracy to distribute methamphetamines, distribution of methamphetamines, wrongful use of methamphetamines, and wrongful use of marijuana, in violation of Articles 81 and 112a, and sentenced to confinement for 135 days and a bad-conduct discharge. Before the CCA he alleges that he “was denied his opportunity to request deferment of automatic forfeitures during the post-trial phase of his court-martial.” Slip op. at 1-2. He didn’t request deferment, but he also doesn’t allege that his counsel was ineffective. So the CCA, sitting en banc, seems to wonder, “why did we all get together for this?” A concurring opinion makes this explicit: “The precise legal theory underlying appellant’s assignment of error is unclear.” Slip op. at 7. Yikes. Findings and sentence affirmed.
(Actually, there’s more to Axtell than this, but it requires reading between the lines. It seems that there was a Post-Trial and Appellate Rights (PTAR) form that gave the Appellant the ability to make numerous elections of things he wanted his defense counsel to do, including electing to request deferment of forfeitures, which he chose. But that form-letter choice to have his counsel request deferment didn’t turn into an actual deferment request. Appellate defense counsel then claimed that the Appellant was denied his chance to submit the deferment request (but didn’t make it an IAC claim – nice of him).)