In a recent published opinion in United States v. Dean, __ M.J. __, No. 20140058 (A. Ct. Crim. App. Feb. 10, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the convening authority erred in summarily denying the appellant’s request for deferment of automatic forfeitures and adjudged reduction in grade, but that the appellant failed to show an entitlement to relief.

Judge Lind writes for the panel.

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, to two specifications of possession of child pornography in violation of Article 134. He was sentenced to confinement for seven months, reduction to E-1, and a bad-conduct discharge. After sentencing, the appellant submitted a request for deferment of the imposition of automatic forfeitures of pay and adjudged reduction in rank (both of which occur automatically, 14 days after adjudged). The convening authority (CA) did not explicitly act on the appellant’s request for deferment, but the convening authority did approve the entire sentence as adjudged.

Judge Lind finds that the circumstances of the convening authority’s action on the sentence “sufficiently reflects [that] the CA reviewed, considered, and acted on appellant’s [deferment request].” Slip op. at 4. However, by not separately acting on the deferment request, “the CA summarily denied appellant’s request for deferment of automatic forfeitures and adjudged reduction in grade. This was error.” Slip op. at 5.

Yet the appellant gets no relief because the CCA finds that the appellant must present “credible evidence that the CA’s denial was for unlawful or improper reasons” and further that the appellant “must make a colorable showing of possible prejudice that the CA would have granted the deferment absent consideration of the unlawful or improper reason.” Slip op. at 5 (marks omitted) (citing United States v. Zimmer, 56 M.J. 869 (A. Ct. Crim. App. 2002); United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).

This is an awfully high burden. When, as in Dean, there are no identifiable factors that the convening authority considered before improperly denying a deferment request without stating the reasons why, it’s hard to imagine how any appellant could ever show that the denial was for an unlawful or improper reason and that the convening authority would have granted the request absent that unlawful or improper reason.

But what’s more interesting about this opinion (and perhaps the reason it’s a published decision) is that this burden seems to be a novel interpretation that was made by the Army CCA in Zimmer (where the appellant was granted relief). Because of this, I think Dean deserves review by CAAF.

In United States v. Sloan, the Court of Military Appeals explained:

There can be little legitimate doubt that the convening authority erred in summarily denying appellant’s deferment request. United States v. Brownd, supra; see Henderson v. Brinkman, 15 M.J. 57 (C.M.A. 1982). RCM 1101(c)(3) provides that the convening authority’s decision on a deferment request “shall be subject to judicial review only for abuse of discretion.” In an obvious effort to effectuate that review, the rule immediately thereafter prescribes that “[t]he action of the convening authority [on such a request] shall be written and a copy shall be provided to the accused.” (Emphasis added.)

If it be suggested that this requirement of a written action may not embrace a requirement that the writing include the reasons for the action, one might ask rhetorically how a court of military review or this Court could measure an abuse of discretion if the basis for the exercise of that discretion is unknown. See Henderson v. Brinkman, supra. Indeed, the drafters of RCM 1101(c)(3) expressly admonish that, “[b]ecause the decision to deny a request for deferment is subject to judicial review, the basis for denial should be included in the record.” Drafters’ Analysis to RCM 1101(c)(3), Manual, supra at A21-69.

Judicial review is not an exercise based upon speculation, and we will not permit convening authorities to frustrate the lawful responsibility of the courts of military review and this Court that was clearly articulated as early as Brownd in 1979. If there has been any doubt in any quarter before, let us now resolve it: When a convening authority acts on an accused’s request for deferment of all or part of an adjudged sentence, the action must be in writing (with a copy provided to the accused) and must include the reasons upon which the action is based.

35 M.J. 4, 6-7 (C.M.A. 1992) (first emphasis in original). The Army CCA acknowledged this strong language in United States v. Zimmer, 56 M.J. 869, 873-874 (A. Ct. Crim. App. 2002), where the court added the prejudice analysis employed in Dean. Specifically, in Zimmer the Army court found that “even though a convening authority commits legal error when he denies a request to defer punishment under R.C.M. 1101(c)(3) without stating his reasons in writing, an individual appellant is not entitled to relief unless the error materially prejudices the substantial rights of the accused.” 56 M.J. at 874 (emphasis in original) (citations and marks omitted). But then, without citation to authority, the CCA added:

Absent credible evidence that a convening authority denied a request to defer punishment for an unlawful or improper reason, an erroneous omission of reasons in a convening authority’s denial of a deferment request does not entitle an appellant to relief.

Zimmer, 56 M.J. at 874. The CCA then found that the appellant in Zimmer had made a showing of possible prejudice, and the court granted relief. Judge Lind’s opinion in Dean repeatedly cites to Zimmer, but ultimately reaches the opposite conclusion on the facts.

Yet the burden placed on an appellant in the Army CCA’s opinion in Zimmer was predicated on two post-trial processing error cases that are distinguishable from a convening authority’s failure to explain the reasons for denying deferment: United States v. Brown, 54 M.J. 289, 292-93 (C.A.A.F. 2000), and United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998). Both of those cases involved the failure to disclose new matters to the defense during the post-trial process, not the failure to explain the reasons for denying deferment. It is the failure to disclose new matters on the defense that requires “some colorable showing of possible prejudice.” Brown, 54 M.J. at 292 (quoting United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997)).

Moreover, the Army Court of Military Review (the predecessor to the Army CCA) applied Sloan to warrant a de novo review of a deferment request in United States v. Dunlap, 39 M.J. 1120, 1122-1123 (A.C.M.R. 1994). In Dunlap the Army court explained that:

There is no doubt but that the convening authority erred by failing to provide a written response to the appellant detailing the reasons for the denial of the request for deferment of confinement. Any denial of a request for deferment is reviewable by this court for abuse of discretion. However, if the convening authority fails to state reasons for his denial, it is difficult to review the decision for abuse of discretion. Indeed, under some circumstances, such a failure itself may be found to be an abuse of discretion.

39 M.J. at 1122 (citations omitted).

And so the Army CCA’s 2002 decision in Zimmer that required an appellant to present “credible evidence that a convening authority denied a request to defer punishment for an unlawful or improper reason,” (while finding that the appellant did so), and the recent decision in Dean that applied this requirement anew (while finding that the appellant failed to do so), appear to be truly novel interpretations.

Of note, the Air Force court takes a different approach. In the Air Force:

[I]f the convening authority denies the deferment request, the accused must take “other appropriate action” at the time to preserve the issue for “judicial review.” United States v. Durant, 16 M.J. 712 (A.F.C.M.R. 1983) (en banc), pet. denied, 17 M.J. 299(C.M.A.1984). For example, the accused may petition for redress under Article 138 , Uniform Code of Military Justice ( 10 U.S.C. § 938). United States v. Edwards, 39 M.J. 528, 530 (A.F.C.M.R. 1994), pet. denied, 41 M.J. 122 (C.M.A. 1994); Air Force Instruction 51-904, Complaints of Wrongs Under Article 138, Uniform Code of Military Justice, para. 3.2 (Jun. 30, 1994). The accused may also seek “judicial review” of the denial such as by filing a petition for a writ of habeas corpus with our Court. Wilson v. Courter, 46 M.J. 745(A.F. Ct. Crim. App. 1997).

United States v. Nelson, 46 M.J. 764, 767 (A.F. Ct. Crim. App. 1997). See also United States v. Robinson, 43 M.J. 501, 507 (A.F. Ct. Crim. App. 1995) (“As we have pointed out previously, an appellant is not entitled to appellate relief when the convening authority erroneously fails to cite reasons for denying a deferment request. Instead, appellant must seek appropriate relief at the time of the denial.”).

And the Coast Guard court recently applied a harmless error analysis to the summary denial of a deferment request. United States v. Smith, 66 M.J. 556, 563 (C.G. Ct. Crim. App. 2008) (“Appellant served the same amount of confinement he would have served if the deferment had been granted, albeit without a week of delay in its commencement.”).

I’m not aware of an NMCCA case that addresses this issue directly, post-Sloan.

Another interesting aspect of the Zimmer/Dean approach is that it seems to undercut a significant rationale for the power to defer a sentence of confinement; a rationale explained by the Army court in its decision in United States v. Sebastian:

When Congress passed the Bail Reform Act of 1966, which clarified the rights of federal prisoners to seek bail pending appeal of their convictions, it expressly excluded courts-martial from its applicability.

To rectify this problem, Congress added a new provision to the UCMJ, as part of the Military Justice Act of 1968, granting an accused a statutory right to petition the convening authority to defer any adjudged sentence to confinement. This provision now provides, in pertinent part, that “[o]n application by an accused who is under sentence to confinement … the convening authority … may in his sole discretion defer service of the sentence to confinement.” The legislative history stated that the “discretion exercised would be very broad and would be vested exclusively in the convening authority” who would consider “all relevant factors in each case and would grant or deny deferment based upon the best interest of the individual and the service[,] … thus providing for the first time a procedure similar to release on bail pending appeal in civilian courts.” A convening authority acting upon a request to defer confinement has the “same broad discretion in imposing conditions on deferment of confinement that a federal magistrate or judge possesses with respect to a defendant seeking release pending appeal.”

55 M.J. 661, 663 (A. Ct. Crim. App. 2001) (citations omitted). Neither Zimmer nor Dean involved requests to defer confinement (Zimmer sought deferment of only forfeitures; Dean of forfeitures and reduction), so perhaps Sebastian is distinguishable on the nature of the deferment sought, but yet another interesting twist is that the Army CCA’s opinions in Sebastian and Zimmer were published within nine months of each other and were authored by the same person: Judge Carter.

The chief takeaway is that for now an Army appellant whose request for deferment was improperly denied by the convening authority, without an explanation of the reasons for that denial, faces a high burden to win relief on appeal. I believe that whether or not this is the proper standard of review is a question that should be answered by CAAF.

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