The NMCCA addresses “an affirmative misstatement of the law that effectively precluded the appellant’s opportunity to receive clemency.”
In a published opinion issued yesterday in United States v. Roller, 75 M.J. 659, No. 201600008 (N-M. Ct. Crim. App. Mar. 31, 2016) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA finds that the staff judge advocate’s recommendation contained “an affirmative misstatement of the law that effectively precluded the appellant’s opportunity to receive clemency.” Slip op. at 3.
Specifically, the SJA improperly advised the convening authority about his power to act on the findings and sentence adjudged by the court-martial. The SJA wrongly claimed that the convening authority’s power to act on the findings and sentence was limited by the 2013 revision of Article 60(c).
As part of the 2013 changes to the UCMJ, Congress significantly limited the convening authority’s Article 60(c) power to act on the results of a court-martial. I analyzed the changes in depth in this post and in this LexisNexis Emerging Issues Analysis. Those changes were effective on June 24, 2014, and applied only to offenses that occurred on or after that effective date. However, because courts-martial adjudge unitary sentences (a single sentence for all convictions), a case involving convictions for offenses committed both before and after June 24, 2014, presented a paradox. Congress resolved this problem in December 2014 by mostly restoring the convening authority’s original power in cases involving convictions for misconduct that occurred before June 24, 2014:
With respect to the findings and sentence of a court-martial that includes both a conviction for an offense committed before [June 24, 2014] and a conviction for an offense committed on or after that effective date, the convening authority shall have the same authority to take action on such findings and sentence as was in effect on the day before such effective date, except with respect to a mandatory minimum sentence under section 856(b) of title 10, United States Code (article 56(b) of the Uniform Code of Military Justice).
Carl Levin And Howard P. “Buck'” Mckeon National Defense Authorization Act For Fiscal Year 2015, § 531(g)(2)(A)(ii), 128 Stat. 3292, 3366 (2015) (discussed here). Subsequently, on June 19, 2015, the President inserted a note into the MCM to emphasize this restoration:
(ii) R.C.M. 1107 is amended by inserting the following Note before the rule’s heading:
[Note: Subsections (b)–(f) of R.C.M. 1107 apply to offenses committed on or after 24 June 2014; however, if at least one offense in a case occurred prior to 24 June 2014, then the prior version of RCM 1107 applies to all offenses in the case, except that mandatory minimum sentences under Article 56(b) and applicable rules under RCM 1107(d)(1)(D)–(E) still apply.]
Executive Order 13696 – 2015 Amendments to the Manual for Courts-Martial, United States, 80 Fed. Reg. 35,783, 35,810 (June 22, 2015) (discussed here).
The convictions in Roller triggered this exception as they involved a false statement made in 2013 and larcenies from 2010 through 2014. However:
The SJAR [staff judge advocate’s recommendation] incorrectly advised the CA [convening authority] that he “may not take action on the findings or the sentence in this case except only to effectuate the terms of the Pretrial Agreement.” This erroneous statement of the law was not challenged by the appellant, corrected in an addendum to the SJAR, or addressed in the CA’s action.
Slip op. at 2. Writing for the CCA, Judge Palmer explains the error:
Here the SJAR language, citing the Secretary of the Navy’s implementing instructions for the FY14 NDAA amendments and omitting reference to the FY15 NDAA technical revisions thereto, incorrectly advised the CA that his potential action was limited to the terms of the pretrial agreement. By the statute’s plain language, these limitations did not apply to the appellant’s offenses, as they, in substantial part, occurred prior to the statute’s effective date. The CA’s broad authority to act on the findings and sentence in this case was, in fact, unfettered by the FY14 NDAA and was reaffirmed in the FY15 NDAA.
Slip op. at 3. Notably, while the referenced implementing instructions are not specifically identified, the Secretary of the Navy issued an ALNAV on June 24, 2014, that included significant errors about the 2013 legislation (discussed here).
Disturbingly, neither the appellant’s trial defense counsel nor his appellate defense counsel raised this issue:
Notwithstanding the appellant’s failure to raise the issue and articulate possible prejudice, we nevertheless find it exists. The SJA’s erroneous advice that the CA could only act on the findings and sentence within the confines of the appellant’s pretrial agreement barred the CA from modifying or dismissing the findings or otherwise granting relief on the imposed sentence beyond the protections in the pretrial agreement. In particular, the SJA’s advice precluded the CA from considering and potentially granting the appellant’s specific request to remain on active duty until his end of active service and to continue serving as a Petty Officer First Class. There being no indication that the CA ignored his SJA’s incorrect advice, we find the apparent denial of consideration itself to be a sufficient showing of possible prejudice. Accordingly, we must either grant meaningful relief or, as we direct in our decretal paragraph, remand.
Slip op. at 3-4. The CCA decides to remand for a new convening authority’s action (rather than take corrective action on its own) because the action also purports to defer the adjudged confinement in the absence of a deferment request. Noting that the convening authority’s power to defer exists “upon written application of the accused,” slip op. at 4 (quoting R.C.M. 1101(c)(2)), Judge Palmer explains that:
Here, in the absence of an approved deferment request, the appellant’s sentence to confinement ran from 15 October 2015 until the CA took his action on 5 January 2016. As such, 82 days of the adjudged confinement elapsed prior to the CA taking his action, even though the appellant never actually served any confinement. As a result, only eight days of confinement remained for the CA to suspend. The CA’s action thus erroneously purports to suspend confinement (which is subject to potential future vacation) that has already run and therefore was technically served.
Slip op. at 4 (citations omitted).