United States v. Rosenthal

UNITED STATES, Appellee
v.
Robert J. ROSENTHAL, Private
U.S. Marine Corps, Appellant
No. 05-0244
Crim. App. No. 9901332
United States Court of Appeals for the Armed Forces
Argued November 2, 2005
Decided December 20, 2005
PER CURIAM
Counsel
For Appellant: Lieutenant Jason S. Grover JAGC, USN (argued).
For Appellee: Major Kevin C. Harris, USMC (argued); Colonel
Ralph F. Miller, USMC (on brief); Commander C. N. Purnell, JAGC,
USN, and Lieutenant Guillermo J. Rojas, JAGC, USNR.
Military Judge: F. A. Delzompo
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rosenthal, No. 05-0244/MC
PER CURIAM:
At a special court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to his pleas,
of wrongful use of amphetamine/methamphetamine and marijuana,
in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a (2000). The adjudged sentence included
a bad-conduct discharge, confinement for four months, and
forfeiture of $639.00 pay per month for four months. The
convening authority approved the sentence, and suspended
confinement in excess of thirty days for twelve months pursuant
to a pretrial agreement. On appeal, the United States Navy-
Marine Corps Court of Criminal Appeals set aside the convening
authority’s action and remanded the case for a new action in an
unpublished opinion. United States v. Rosenthal, No. NMCCA
9901332 (N-M. Ct. Crim. App. Nov. 29, 2000). The convening
authority, in the new action, approved the sentence, subject to
the same provisions for limited suspension of confinement. The
Court of Criminal Appeals affirmed the findings and sentence in
an unpublished opinion. United States v. Rosenthal, No. NMCCA
9901332, 2004 CCA LEXIS 195, 2004 WL 1917880 (N-M. Ct. Crim.
App. Aug. 27, 2004).
On Appellant’s petition, we granted review of the following
issue:
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WHETHER THE LOWER COURT ERRED IN FINDING THAT
APPELLANT WAIVED HIS RIGHT TO SUBMIT CLEMENCY MATTERS
IN HIS SECOND POST-TRIAL REVIEW PROCESS.
For the reasons discussed below, we remand for a new post-trial
review and action.
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.” Rule for
Courts-Martial (R.C.M.) 1105(b)(1). See Article 60(b)(1), UCMJ,
10 U.S.C. § 860(b)(1) (2000). The convening authority’s action
provides the accused’s “best hope” for clemency. United States
v. Stephenson, 33 M.J. 79, 83 (C.M.A. 1991). See, e.g., 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).
Under R.C.M. 1105(d)(1), “[f]ailure to submit matters
within the time prescribed by th[e] rule shall be deemed a
waiver of the right to submit such matters.” R.C.M. 1105(d)(3)
provides: “The accused may expressly waive, in writing, the
right to submit matters under this rule. Once filed, such
waiver may not be revoked.” A waiver under R.C.M. 1105(d) must
be knowing and intelligent. See Stephenson, 33 M.J. at 83 (A
defense counsel’s deficient advice regarding appellant’s post-
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trial rights “could not possibly produce a knowing and
intelligent waiver of appellant’s right to submit clemency
matters.”). We consider the issue of waiver as a question of
law under a de novo standard of review. See United States v.
Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002).
Prior to the convening authority’s initial action on the
results of trial in the present case, Appellant did not file
either a post-trial submission or a written waiver of the right
to do so under R.C.M. 1105(d)(3). Pursuant to written
instructions from Appellant, defense counsel did not submit
clemency matters to the convening authority. Absent such a
submission, the convening authority could proceed on the basis
that Appellant had waived his right to make such a submission
under R.C.M. 1105(d)(1). In the present appeal, Appellant does
not challenge the application of the waiver rule to the
convening authority’s initial action.
Subsequently, the Court of Criminal Appeals set aside the
convening authority’s action and remanded the case for a new
action. The staff judge advocate prepared a new recommendation
to the convening authority and served it on defense counsel.
Although nearly two years had passed since the first post-trial
proceeding, defense counsel did not contact Appellant or
otherwise ensure that his client was informed of the new post-
trial proceeding and the opportunity to submit matters to the
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convening authority. Instead, counsel relied on the
instructions provided by Appellant two years earlier in the
immediate aftermath of trial, and decided not to provide any
post-trial submission on his client’s behalf during the new
post-trial proceeding.
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
matters -- including changes in circumstances following the
initial action on the case -- for purposes of determining
whether clemency or other post-trial action is warranted. See
R.C.M. 1107(b)(1); 1107(b)(3)(B)(iii); 1107(d). A servicemember
has the corresponding right to bring “[m]atters in mitigation
which were not available for consideration at the court-martial”
to the attention of the convening authority. See R.C.M.
1105(b)(2)(C).
A decision by an appellate court to set aside the convening
authority’s action on the results of trial is a significant
development because it entitles an appellant to a new post-trial
proceeding. Counsel for an appellant should ascertain the
client’s views before deciding how to address the opportunities
presented by the new proceeding. See Dep’t of the Navy, Judge
Advocate General, JAGINST 5803.1B, Professional Conduct of
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Attorneys Practicing Under the Cognizance and Supervision of the
Judge Advocate General, R. 1.4 and cmt. (2000) (rule entitled
“Communication”). Counsel cannot assume that a client, who
previously declined to seek clemency in the immediate aftermath
of a trial, will necessarily have the same view when an
appellate court orders a new recommendation and action --
particularly when the opportunity to make a new submission
arises more than two years later. In this case, it was error
for counsel to proceed without ensuring that Appellant had made
a knowing and intelligent waiver of the right to make a
submission during the second post-trial review process.
We test this error for prejudice. “Because clemency is a
highly discretionary Executive function, there is material
prejudice to the substantial rights of an appellant if there is
an error and the appellant ‘makes some colorable showing of
possible prejudice.’” Wheelus, 49 M.J. at 289 (citing United
States v. Chatman, 46 M.J. 321, 323-34 (C.A.A.F. 1997)).
Appellant’s unrebutted affidavit provides evidence relevant to
clemency regarding changes in Appellant’s circumstances during
the two-year period between the convening authority’s first and
second actions. Appellant stated that he had matured, ceased
his drug use, was studying for a commodity broker’s license, and
wished to stay in the Marine Corps. The decision as to whether
any or all of these matters would warrant clemency is a matter
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committed to the discretion of the convening authority under
Article 60(c), UCMJ, 10 U.S.C. § 860(c) (2000), and R.C.M. 1107.
For purpose of this appeal, Appellant has demonstrated a
colorable showing of possible prejudice.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is set aside. The record is returned to the
Judge Advocate General of the Navy for remand to the convening
authority for a new post-trial review and action.
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