United States v. Grottenthaler

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Senior Airman NICHOLAS R. GROTTENTHALER
United States Air Force
ACM 38380
11 March 2014
Sentence adjudged 1 May 2013 by GCM convened at Whiteman Air Force
Base, Missouri. Military Judge: Rodger A. Drew, Jr. (sitting alone).
Approved sentence: Bad-conduct discharge and reduction to E-1.
Appellate Counsel for the Appellant: None.
Appellate Counsel for the United States: Colonel Don M. Christensen.
Before
HELGET, WEBER, and PELOQUIN
Appellate Military Judges
OPINION OF THE COURT
This opinion is subject to editorial correction before final release.
PER CURIAM:
A military judge sitting as a general court-martial convicted the appellant,
consistent with his pleas, of one charge and specification of maiming MG (his wife); one
specification of aggravated assault with a force likely to produce death or grievous bodily
harm; and one specification of assault consummated by a battery, in violation of
Articles 124 and 128, UCMJ, 10 U.S.C. §§ 924, 928.1 The military judge sentenced the
appellant to a bad-conduct discharge and reduction to E-1. The convening authority
approved the sentence as adjudged.
1
Pursuant to a defense motion, the military judge dismissed an additional specification of aggravated assault with a
force likely to produce death or grievous bodily harm on multiplicity grounds.
The appellant’s conviction arose from his violent behavior toward his wife on
Halloween night 2012. The appellant fell asleep after an evening of drinking. His wife
later confronted him about suspicious text messages she found on his cell phone. When
the appellant learned his wife had taken his cell phone, he chased her downstairs, shoved
her to the floor, shook her, berated her, broke her finger to pry her cell phone from her,
broke her cell phone and glasses, and shoved her face to the floor. The appellant’s wife
escaped outside when the appellant picked up and destroyed a television. Outside, the
appellant caught up to her, strangled her until she passed out, and pushed or shoved her
face-first into the sidewalk, causing her to break three of her front teeth.
The record of trial contains three Air Force (AF) Form 304s signed by the
appellant. On the first form, signed on the date of trial, the appellant requested appellate
defense counsel to represent him. However, he later signed two additional
AF Form 304s stating he no longer wished to have appellate defense counsel represent
him. He signed the final form shortly after the convening authority’s action. As a result,
the Air Force Appellate Defense Division declined to assign counsel to the appellant.
The appellant, however, has not waived appellate review of his case. This Court
contacted the appellant’s trial defense counsel to inquire whether the appellant still
elected not to be represented by appellate counsel and whether the appellant wished to
personally raise any issues for this Court’s consideration. The appellant’s trial defense
counsel stated that the appellant did not desire to raise any issues to this Court’s attention,
and still did not wish to be represented by appellate defense counsel.
Under Article 70(c), 10 U.S.C. § 870(c), and Rule for Courts-Martial 1202(b)(2),
appellate defense counsel are to represent an appellant in cases before this Court when
requested by the accused, or in other situations not applicable here.2 We therefore find
that the proper course of action is to conduct a review of the record under Article 66,
UCMJ, 10 U.S.C. § 866, without the benefit of a brief from the appellant. Our superior
court has stressed the importance of appellate defense counsel and receiving a brief from
the appellant, but the Court did so in the context of a case where “an appellant has
requested representation that does not appear to be forthcoming.” United States v. Roach,
66 M.J. 410, 418 (C.A.A.F. 2008). In Roach, the Court held that “[i]f the court
determines that circumstances warrant proceeding without a brief filed by appointed
military appellate counsel, the court must first provide adequate notice to the appellant so
that the appellant can determine whether to request substitute counsel under Article 70,
[UCMJ,] obtain civilian counsel at the appellant’s expense, or waive the right to counsel
and proceed pro se.” Id. This case presents a different situation than Roach, but this
Court has nonetheless contacted the appellant through counsel, and the appellant has
again affirmatively elected not to be represented by counsel on appeal. We therefore
2
One other situation requiring appellate defense counsel to represent an appellant before this Court is when the
United States is represented by counsel. No appellate government attorneys have entered appearances in this case
on behalf of the Government.
2 ACM 38380
hold that the appellant has waived his right to appellate counsel and we are to proceed
without the benefit of a submission on the appellant’s behalf.
We have carefully reviewed the record of trial, and find no grounds to disturb the
conviction or sentence. The appellant’s guilty plea pursuant to a pretrial agreement was
provident, and his sentence is appropriate. No legal issues arose from the trial or the
processing of this case that warrant relief.
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are
AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
3 ACM 38380