United States v. Ravenscraft ( 2017 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600018
_________________________
UNITED STATES OF AMERICA
Appellee
v.
ADAM J. RAVENSCRAFT
Interior Communications Electrician
First Class (E-6), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Ann Minami, JAGC, USN.
Convening Authority: Commander, Navy Region Northwest,
Silverdale, WA.
Staff Judge Advocate’s Recommendation: Commander Edward K.
Westerbrook, JAGC, USN
For Appellant: James S. Trieschmann, Jr., Esq.; Commander Chris
Tucker, JAGC, USN.
For Appellee: Major Cory Carver, USMC; Captain Sean M. Monks,
USMC.
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Decided 27 June 2017
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Before C AMPBELL , F ULTON , and H UTCHISON , Appellate Military
Judges
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This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
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FULTON, Judge:
A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of one specification of wrongfully disposing of military
United States v. Ravenscraft, No. 201600018
property of a value greater than $500.00, and one specification of larceny of
military property of a value greater than $500.00, in violation of Articles 108
and 121, Uniform Code of Military Justice.1 The military judge sentenced the
appellant to one year of confinement, reduction to pay grade E-3, and a bad-
conduct discharge. The convening authority (CA) approved the sentence and,
except for the punitive discharge, ordered it executed.2
The appellant’s counsel asserts five assignments of error3 (AOEs): (1) the
appellant’s pleas are improvident because the evidence is factually
insufficient to establish the value of the military property; (2) trial counsel
failed to disclose evidence favorable to the appellant; (3) the appellant
received ineffective assistance of counsel because trial defense counsel failed
to investigate impeachment evidence relating to a Naval Criminal
Investigative Service agent; (4) the appellant’s sentence is inappropriately
severe; and (5) the appellant received ineffective assistance of counsel after
trial. We find merit in the last AOE and take corrective action in our decretal
paragraph.
I. POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL
The appellant’s right to effective assistance of counsel extends to
assistance with submission of matters in clemency to the CA under RULE FOR
COURTS-MARTIAL (R.C.M.) 1105, MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016 ed.).4 In evaluating claims of post-trial ineffective assistance of
counsel, there is only “material prejudice to the substantial rights of an
appellant if there is an error and the appellant makes some colorable
showing of possible prejudice.”5
The appellant avers that his trial defense counsel was ineffective in
failing “to contact [him] throughout the post-trial process and assist him in
submitting clemency matters to the [CA.]”6 And “to the extent trial defense
counsel believed that the [CA] did not have the authority to grant relief” from
1 10 U.S.C. §§ 908 and 921 (2012).
2 The pretrial agreement had no effect on the sentence, only providing that the
case be referred to a special rather than a general court-martial.
3 We have renumbered the appellant’s AOEs, integrated them with the
appellant’s supplemental AOEs, and combined two of the supplemental AOEs on
discovery into one AOE. The appellant also alleges several “issues” personally under
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
4 United States v. Cobe, 41 M.J. 654, 655-56 (N-M. Ct. Crim. App. 1994).
5 United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (citation and
internal quotation marks omitted).
6 Appellant’s Brief of 28 Jun 2016 at 17.
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the appellant’s bad conduct discharge, “trial defense counsel incorrectly
applied the law.”7 The trial defense counsel’s own submission in this case
demonstrates that he had an erroneous view of the law applicable to the
appellant’s case. The appellant was charged exclusively with offenses
occurring before the 24 June 2014 effective date of the National Defense
Authorization Act for Fiscal Year 2014, which restricted the CA’s powers to
grant clemency absent special circumstances.8 The CA had broad discretion
to act on the findings or the appellant’s sentence under the earlier version of
Article 60, UCMJ.
The appellant states that trial defense counsel failed to assist him submit
clemency matters, and that he wanted his counsel to “request [that the CA]
reduce my reduction and/or set aside my punitive discharge.”9 We find that
trial defense counsel’s performance fell below that which is reasonable under
professional norms when he mistook the law as it applied to the appellant’s
case and failed to ask the CA for available clemency in accordance with the
appellant’s wishes.
We also find that the appellant has met the relatively low burden of
demonstrating a colorable showing of possible prejudice. A request from an
18-year veteran to remain in the service is a serious matter. We cannot say
that it would have received favorable consideration. But we are sure it would
have received serious consideration, and the appellant had the right to have
his request transmitted to the CA. The appellant was convicted of non-violent
property offenses, the most serious of which involved used property diverted
from the Defense Reutilization and Marketing Office. We do not think that
clemency was an utterly unrealistic hope. The CA may well have viewed his
post-trial decision in this case differently in the face of an appeal from the
appellant to let him salvage something of his long career.10 We find that trial
defense counsel’s failure to understand the law and assist the appellant in
presenting his request to the CA constitutes a colorable showing of possible
prejudice. Therefore, new post-trial processing is appropriate in this case.
II. CONCLUSION
The CA’s action, dated 6 January 2016, is hereby set aside. The record is
returned to the Judge Advocate General for remand to an appropriate
7 Id. at 18.
8 Pub. L. No. 113-66, 127 Stat. 672, 955-58 (2013).
9 Motion to Attach Appellant’s Declaration of 28 June 2016.
10 United States v. Craig, 28 M.J. 321, 323-25 (C.M.A. 1989) (noting “it is very
difficult to determine how a convening authority would have exercised his [or her]
broad discretion” on clemency matters).
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convening authority for preparation of a new staff judge advocate’s
recommendation and new CA’s action in compliance with R.C.M. 1106 and
1107. The appellant will be represented by conflict-free counsel. Thereafter
the record will be returned to the Court for completion of appellate review.
Senior Judge CAMPBELL and Judge HUTCHISON concur.
For the Court
R.H. TROIDL
Clerk of Court
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