United States v. Stromer ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
HITESMAN, GASTON, and GERRITY
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Anthony T. STROMER, Jr.
Corporal (E-4), U.S. Marine Corps
Appellant
No. 201800320
Appeal from the United States Navy-Marine Corps Trial Judiciary
Decided: 29 May 2020
Military Judge:
John P. Norman
Sentence adjudged 27 August 2018 by a special court-martial con-
vened at Marine Corps Base Camp Pendleton, California, consisting of
a military judge sitting alone. Sentence approved by convening au-
thority: reduction to E-1, confinement for eight months, and a bad-
conduct discharge. 1
1 In accordance with a pretrial agreement, the convening authority suspended
confinement in excess of 60 days and the bad-conduct discharge. Both the suspended
confinement period and the punitive discharge have since been remitted for
Appellant, who was administratively discharged on 31 October 2018.
United States v. Stromer, NMCCA No. 201800320
Opinion of the Court
For Appellant:
Captain Scott F. Hallauer, JAGC, USN
Lieutenant R. Andrew Austria, JAGC, USN 2
For Appellee:
Major Clayton L. Wiggins, USMC
Lieutenant Joshua C. Fiveson, JAGC, USN
Judge GERRITY delivered the opinion of the Court, in which Senior
Judges HITESMAN and GASTON joined.
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
GERRITY, Judge:
This case is before us a second time, having already been remanded once
for post-trial processing errors. As we previously expressed regarding this
single-specification guilty plea, consisting of a mere 47-page record of trial,
“[t]his case is yet another striking example of excessive reliance on templates,
a lack of appreciation of the importance of post-trial process in the military
justice system, and a failure to pay attention to detail.” United States v.
Stromer, No. 201800320, 2019 CCA LEXIS 134, at *5-6 (N-M. Ct. Crim. App.
March 26, 2019) (unpub. op.).
Once again this Court is forced to address repeated errors in post-trial
processing, due to a lack of attention, care, and accountability, and a failure
to read and follow post-trial processing rules and court orders.
I. BACKGROUND
In September 2017, Appellant roomed for approximately one month with
a more junior Marine in the inbound barracks aboard Camp Pendleton,
California. During that time, Appellant obtained his roommate’s debit card
2 Captain Hallauer and Lieutenant Austria have both appeared before the Court
on behalf of Appellant. Captain Hallauer, detailed pursuant to the Appellant’s
request, filed the original Defense brief in this case without assignment of error.
2
United States v. Stromer, NMCCA No. 201800320
Opinion of the Court
information and used it more than 130 times over the next several months to
purchase various goods and services, including food delivery, airline tickets,
Internet pornography, and online gaming subscriptions, none of which was
individually for over $500. Eventually the card was shut off, and Appellant
was confronted by law enforcement, confessed, and admitted in court to
making purchases with the card totaling more than $4,000.
Pursuant to a pretrial agreement with the convening authority, Appellant
pleaded guilty to one specification of larceny of property of a value of more
than $500, in violation of Article 121, Uniform Code of Military Justice
[UCMJ], 10 U.S.C. § 921 (2012). In sentencing, other than a brief oral
unsworn statement, Appellant offered no matters to be considered in
extenuation or mitigation.
In the Post-Trial and Appellate Rights Advisement, Appellant asked to be
personally served with the Staff Judge Advocate’s Recommendation [SJAR]
and record of trial. The military judge confirmed that Appellant had reviewed
the Post-Trial and Appellate Rights Statement with his counsel and had no
questions about it. He was advised that if the convening authority approved a
bad-conduct discharge, this Court would review the case and he would be
entitled to representation by military appellate counsel before this Court at
no cost to him. 3 He signed this rights advisement, which among other things
stated, “I specifically authorize my appellate defense attorney to petition the
CAAF [Court of Appeals for the Armed Forces] with any claim on my
behalf.” 4
After being served with the record of trial and the SJAR, Appellant
waived his right to respond to the SJAR or to submit any matters in
clemency.
On appeal, Appellant’s original detailed Appellate Defense Counsel sub-
mitted his case without assignment of error. However, after careful consider-
ation of the record, and based upon inaccuracies in the SJAR and the Court-
Martial Order [CMO], we were unable to determine whether the convening
authority fully complied with the terms of the pretrial agreement. In fact, the
SJAR and CMO contained so many errors that we “were unable to decipher
the SJAR and CMO passages at issue,” which we found to be “nonsensical.”
Stromer, 2019 CCA LEXIS 134, at *6. Accordingly, we set aside the CMO and
remanded the case for new post-trial processing.
3 Appellate Ex. III; Record at 43.
4 Appellate Ex. III (emphasis in original).
3
United States v. Stromer, NMCCA No. 201800320
Opinion of the Court
A new CMO was completed on 24 June 2019, again approving the ad-
judged sentence. The new CMO, repeated the language in the previous CMO
that the recommendations of the staff judge advocate and any addenda
thereto were considered and there were no matters submitted by the victim
or Appellant. However, a new SJAR was not completed as required by Rules
for Courts-Martial [R.C.M.] 1106 and 1107. Nor was the victim provided an
opportunity to comment in accordance with R.C.M. 1105A, nor was Appellant
provided the opportunity to submit matters for clemency or legal errors in
accordance with R.C.M 1005.
Hence, the case must again be remanded for correct post-trial processing
in accordance with the Rules for Courts-Martial.
II. DISCUSSION
Before a convening authority acts on the results of trial, an accused has
the opportunity to “submit to the convening authority any matters that may
reasonably tend to affect the convening authority’s decision whether to
disapprove any findings of guilty or to approve the sentence.” R.C.M.
1105(b)(1); see also Article 60(b)(1), UCMJ. An accused has 10 days from the
date of the SJAR to file any submission under R.C.M. 1105 for consideration
by the convening authority, and the convening authority can only take action
after the applicable R.C.M. 1105 time periods have expired or if the accused
waives such right. R.C.M. 1105, 1107. It has long been known to military
justice practitioners that the convening authority’s action provides an
accused’s “best hope” for clemency in qualifying cases. United States v.
Stephenson, 33 M.J. 79, 83 (C.M.A. 1991) (citation and internal quotation
marks omitted); see also, United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F.
2001); United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 1998).
Here, Appellant was not afforded this right during the second round of
post-trial processing following our first remand, in violation of our superior
court’s holding in the almost identical case of United States v. Rosenthal. 62
M.J. 261 (C.A.A.F. 2005). In Rosenthal, on the first appeal to our Court, the
case was sent back to the convening authority for a new convening authori-
ty’s action after post-trial errors. A new SJAR was properly prepared and
served on counsel, but the trial defense counsel did not submit or consult
with the client about submitting R.C.M. 1105 matters because the client had
previously waived such submissions when the original action was taken. The
convening authority then acted without providing the required opportunity to
submit R.C.M. 1105 matters. On the second appeal, our superior court found
error in that regard and remanded the case back to the convening authority
4
United States v. Stromer, NMCCA No. 201800320
Opinion of the Court
for another post-trial review and action in order to afford Rosenthal an
opportunity to submit R.C.M. 1105 matters. In so holding, the CAAF stated:
When a case is remanded for a new convening authority’s
action, the convening authority is not limited to considering the
circumstances as they existed at the time of the initial review.
The convening authority may consider other appropriate mat-
ters—including changes in circumstances following the initial
action on the case—for purposes of determining whether clem-
ency or other post-trial action is warranted. A servicemember
has the corresponding right to bring “matters in mitigation
which were not available for consideration at the court-martial”
to the attention of the convening authority.
A decision by an appellate court to set aside the convening
authority’s action on the results of trial is a significant devel-
opment because it entitles an appellant to a new post-trial pro-
ceeding.
Id. at 262-63 (citations omitted).
A. No Subsequent SJAR Completed
In our previous opinion we highlighted for the Government that the
“failure to return the case to the convening authority for action on the basis of
a properly prepared recommendation deprives both ‘[t]he accused and the
convening authority’ of the ‘well-written and carefully considered post-trial
recommendation’ to which they are entitled.” United States v. Hill, 27 M.J.
293, 296 (C.M.A. 1988) (citations omitted). We detailed the errors in the
SJAR and CMO, so that the Government had a roadmap to expeditiously and
accurately perform its duties for post-trial action. Apparently, that was not
enough. The convening authority took three months to take new action on the
case and promulgate a new CMO, but skipped the mandatory, critical piece of
doing so on the basis of a new SJAR and ensuring Appellant was again
afforded the right to submit R.C.M. 1105 matters.
Since R.C.M. 1107 was not followed; the new SJAR was not prepared at
all, let alone in accordance with R.C.M. 1106; and Appellant was not provided
the opportunity to submit matters in accordance with R.C.M 1105 (when the
SJAR is correctly done, personal service of the SJAR, in accordance with
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United States v. Stromer, NMCCA No. 201800320
Opinion of the Court
R.C.M. 1105, must be made to Appellant per his post-trial rights advisement
election); we are left with no option but to again set aside the CMO. 5
B. Subsequent Review
This Court is mindful that remanding the case does not necessarily pro-
vide Appellant full relief at this stage of the proceeding, and we will again
assess for post-trial processing or other errors when the case is returned for
our Article 66 review.
III. CONCLUSION
The CMO dated 24 June 2019 is SET ASIDE and the record of trial is
returned to the Judge Advocate General for remand to an appropriate con-
vening authority for new, correct post-trial processing in accordance with
R.C.M. 1105, 1105A, 1106 and 1107, and then return to this Court for
completion of appellate review.
Senior Judges HITESMAN and GASTON concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
5United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988). See also United States v.
Craig, 28 M.J. 321 (C.M.A. 1989). “Since it is very difficult to determine how a
convening authority would have exercised his broad discretion if the staff judge
advocate had complied with R.C.M. 1106, a remand will usually be in order.” Id. at
325 (quoting United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988)); United States v.
Reed, 33 M.J. 98 (C.M.A. 1991); United States v. Hamilton, 47 M.J. 32 (C.A.A.F.
1997). “This court has often observed that the convening authority is an accused’s
last best hope for clemency. Clemency is the heart of the convening authority’s
responsibility at that stage of a case. If an SJA gives faulty advice in this regard, the
impact is particularly serious because no subsequent authority can adequately fix
that mistake.” Id. at 35 (citation omitted); United States v. Ord, 63 M.J. 279
(C.A.A.F. 2006).
6