The Air Force CCA finds that a defense counsel’s clemency error requires a new convening authority’s action
In United States v. Zegarrundo, __ M.J. __, No. S32430 (A.F. Ct. Crim. App. Jan. 31, 2018) (link to slip op.) (CAAFlog link), a three-judge panel of the Air Force CCA finds that an error in the clemency submission from the appellant’s defense counsel requires remand for a new convening authority’s action.
The error was that defense counsel wrongly believed that the convening authority had no power to reduce the adjudged sentence to confinement, when in reality the convening authority had such power because the adjudged sentence to confinement was not more than six months.
The #1 Military Justice Story of 2013 was Changes to the UCMJ, because late that year Congress enacted numerous significant revisions to the Code (analysis available here). Among those changes was a revision of Article 60(c) to limit a convening authority’s power to modify either the findings or the sentence of a court-martial.
When it came to the sentence, Congress provided that with limited exceptions:
the convening authority or another person authorized to act under this section may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.
Article 60(c)(4). The wording was a little awkward (because confinement and discharge are merely punishments that may be adjudged as part of a sentence; they are not the entire sentence), but the meaning was clear: a convening authority’s discretion was limited only with respect to punitive discharges and confinement for more than six months.
Senior Airman (E-4) Zegarrundo pleaded guilty to numerous drug offenses and was sentenced to confinement for 30 days, reduction to E-1, forfeiture of pay, and a bad-conduct discharge. In clemency, his defense counsel asked the convening authority to disapprove the forfeiture of pay, asserting that:
Due to changes in the law you no longer have the ability to disapprove confinement (which has been served anyway), but you do still have the power to disapprove the reduction in rank and the forfeitures imposed by the panel. Doing this will recognize that AB Zegarrundo was confined in conditions not authorized by the Air Force, and also give him a better financial footing as he transitions to civilian life . . . .
Slip op. at 2-3 (marks in original). That was wrong. Because the adjudged confinement was not more than six months, the convening authority had the power to disapprove it.
The post-trial recommendation of the convening authority’s staff judge advocate did (correctly) inform the convening authority that he had the power to modify the adjudged confinement, but the staff judge advocate did not correct the defense counsel’s error. That’s a problem. Writing for the unanimous panel, Judge Huygen explains:
We find plain error in the failure of the addendum to the SJAR to correct the clemency submission’s erroneous statement that “Due to changes in the law you no longer have the ability to disapprove confinement.” Contrary to trial defense counsel’s assertion, the change in the law, specifically, Article 60, UCMJ, 10 U.S.C. § 860, limits a convening authority’s ability to affect confinement of more than six months. Appellant’s adjudged sentence included confinement for 30 days. The SJAR correctly informed the SPCMCA that he could “disapprove, commute or suspend in whole or in part” the adjudged 30-day confinement. Trial defense counsel followed with an incorrect statement of the law—that the SPCMCA could not disapprove the confinement—and requested instead that the SPCMCA disapprove the reduction to E-1 and forfeiture of pay. In accordance with the CAAF’s disposition in Addison, the SJA was then obligated to correct the Defense’s error in the addendum; the SJA did not do so. The SJA also did not give the Defense the opportunity to correct the error.
Slip op. at 3-4 (citations omitted). The CCA remands the case for a new convening authority’s action.