CAAF will hear oral argument in the Marine Corps case of United States v. Captain, No. 15-0172/MC (CAAFlog case page), on Tuesday, October 27, 2015, at 9:30 a.m. The case presents one issue of ineffective assistance of counsel in sentencing and one issue of involving the convening authority’s action:
I. Whether trial defense counsel provided inefective assistance of counsel by failing to offer evidence, other than an unsworn statement, in extenuation or mitigation, and by conceding the appropriateness of a dishonorable discharge.
II. Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming a sentence that included a dishonorable discharge when the convening authority’s action did not approve one.
In accordance with a pretrial agreement, the appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of one specification of abusive sexual contact in violation of Article 120. During the sentencing phase of the court-martial, the appellant’s detailed military defense counsel “did not present any extrinsic evidence of Sgt Captain’s good military character,” and further “during his sentencing argument, trial defense counsel asked the military judge to sentence Sgt Captain to a dishonorable discharge.” App. Br. at 2. The military judge sentenced the appellant to confinement for 5 years and 6 months, reduction to E-1, total forfeitures, a $50,000 fine, and a dishonorable discharge.
The convening authority suspended all confinement in excess of four years in accordance with the terms of the pretrial agreement. The convening authority also disapproved the fine (presumably as an act of clemency). But as for the remainder of the sentence, the convening authority’s action provides only that:
The remaining part of the adjudged sentence as adjudged consisting of forfeiture of all pay and allowances, confinement for 5 years, 6 months, 0 days, and reduction to the lowest enlisted grade is approved.
Gov’t Br. at 19 (quoting action). This approval omits the adjudged dishonorable discharge.
The appellant’s case was forwarded for automatic review by the Navy-Marine Corps CCA, where the appellant asserted ineffective assistance of counsel (IAC) in his defense counsel’s failure to present sentencing evidence and argument in favor of a dishonorable discharge. In particular, the appellant asserted that he did not consent to his defense counsel asking the court-martial to adjudge a punitive discharge. The CCA ordered a DuBay hearing (a post-trial fact-finding hearing), and then it rejected the appellant’s claims of IAC. The DuBay found, and the CCA agreed, that the appellant’s defense counsel made a tactical decision to not call witnesses (for fear of evidence the Government would offer in rebuttal), and that the appellant and his counsel had agreed to request a dishonorable discharge in the hope that it would lead to a reduced sentence of confinement (even though counsel failed to create a record of that agreement). United States v. Captain, No. 201300137 (N-M. Ct. Crim. App. Jul. 27, 2014).
Notably, the CCA’s decision does not address the convening authority’s failure to include the punitive discharge in his action approving the sentence. It is unclear if the appellant raised this issue before the CCA.
Two significant and seemingly bright-line military precedents will be tested in CAAF’s review in Captain.
First, military law is clear that “when defense counsel does seek a punitive discharge or does concede the appropriateness of such a discharge – even as a tactical step to accomplish mitigation of other elements of a possible sentence – counsel must make a record that such advocacy is pursuant to the accused’s wishes.” United States v. Dresen, 40 M.J. 462, 465 (C.M.A. 1994). No such record was made in this case.
Second, “in light of the convening authority’s broad discretion to provide relief from the adjudged sentence and the importance of this role in the court-martial process, when the plain language of the convening authority’s action is facially complete and unambiguous, its meaning must be given effect.” United States v. Wilson, 65 M.J. 140, 141 (C.A.A.F. 2007). “Accordingly, the convening authority must exercise care in drafting the action.” Ibid. The convening authority’s action in this case appears unambiguous in its failure to approve the adjudged punitive discharge.