United States v. Sergeant ANTHONY P. MITCHELL ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and BORGERDING
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant ANTHONY P. MITCHELL
United States Army, Appellant
ARMY 20130626
Headquarters, Fort Campbell
Steven E. Walburn, Military Judge
Lieutenant Colonel Sebastian A. Edwards, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Patrick J. Scudieri, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Carl L. Moore, JA (on brief).
25 July 2014
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of six specifications of assault consummated by battery in
violation of Article 128, Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. § 928 (2006). The military judge sentenced appellant to a bad-conduct
discharge, confinement for twelve months, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence.
This case is before the court for review under Article 66, UCMJ. Appellant
asks us to set aside the convening authority’s action because the staff judge advocate
(SJA) failed to comment on a legal error raised by appellant in his post-trial matters.
See Rule for Courts-Martial [hereinafter R.C.M.] 1106(d)(4); United States v. Hill,
27 M.J. 293, 296 (C.M.A. 1988). Citing Hill, the government argues appellant was
not prejudiced because even if the SJA had commented on the allegation of legal
error, it would not foreseeably have led to a favorable SJA recommendation or
MITCHELL — ARMY 20130626
corrective action by the convening authority. 27 M.J. at 297. However, the
government nonetheless asks us to set aside the convening authority’s action because
“it is not clear from the record that appellant received assistance during the post-
trial phase [of his court-martial] from a conflict-free counsel.” Reviewing the entire
record, to include the parties’ arguments, we agree that a new review and action is
warranted.
Appellant’s R.C.M. 1105 matters were submitted to the convening authority
by the civilian defense counsel who represented appellant at trial. Included in the
post-trial matters was a letter written by appellant alleging he received deficient
representation from this civilian defense counsel before, during, and after his court-
martial. Appellant also stated in the letter that he “will be on [his] third [Trial
Defense Services (TDS)] lawyer” because his TDS attorneys continued to “transfer[]
out.” The civilian defense counsel referenced appellant’s letter in the R.C.M. 1105
matters and stated: “[appellant] requests that the Convening Authority review his
representation and take that into account.” The addendum to the SJA’s
recommendation does not make any mention of appellant’s allegation of deficient
representation. Finally, we note that in matters appellant personally submitted to
this court pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), he
raised the issue of his civilian defense counsel’s ineffectiveness before and during
trial.
Military accused have a fundamental right to effective assistance of counsel
after trial. United States v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000). “This right
to the effective assistance of counsel means the right to effective assistance of
conflict-free counsel.” United States v. Carter, 40 M.J. 102, 105 (C.M.A. 1994).
We accept the government’s concession that based on the record before us, we
are unable to conclude whether appellant’s defense counsel was “mentally free of
competing interests.” See United States v. Cornelious, 41 M.J. 397, 398 (C.A.A.F.
1995) (quoting Carter, 40 M.J. at 105). In light of this ambiguity, the SJA’s failure
to comment on appellant’s allegation of legal error in the addendum, and appellant’s
renewed allegations of deficient performance by his civilian defense counsel in
Grostefon, a new review and action is appropriate.
The action of the convening authority dated 13 November 2013 is set aside.
The record of trial will be returned to The Judge Advocate General for a new action
by the same or a different convening authority in accordance with Article 60(c)-(e),
UCMJ.
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MITCHELL — ARMY 20130626
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
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