The appellant asserts that the attorney-client relationship with his detailed trial defense counsel was terminated without good cause, leaving the appellant legally and factually without post-trial representation. The basis for the appellant’s claim is that substitute counsel failed to establish an attorney-client relationship with the appellant prior to receipt of the staff judge advocate’s recommendation (SJAR).

The court makes clear in footnote 3, that:

This case does not present a situation similar to that addressed by this court in United States v. Hutchins, 68 M.J. 623 (N.M.Ct.Crim.App. 2010), rev. granted, __ M.J. __ (C.A.A.F. June 7, 2010), a trial-level severance issue analyzed under R.C.M. 505 and 506.

In his unrebutted affidavit, Capt F stated that he was detailed in anticipation of Capt M’s departure. Capt F stated that during this post-trial phase, he was in touch with Capt M, and that Capt M informed him that clemency matters had already been submitted. Capt M also informed Capt F that Capt F was needed to receive the SJAR, but that no further substantive action would be required. Capt F was under the impression that the previously submitted clemency request would be reviewed by the CA in due course. Capt F stated that he made no attempt to contact the appellant, believing that his duties were “administrative in nature.”

However, NMCCA did not agree with that view of the situation.

Capt F did have an affirmative obligation pursuant to both R.C.M. 1106(f)(2) and Miller to form an attorney-client relationship with the appellant. He was also obliged to take further action as required to protect the interests of the appellant. The obligation to form the relationship, review the SJAR and take such action as required was not one that prospectively could be limited by what Capt F describes as Capt M’s suggestion that no further action was required other than to receive the SJAR.

As best we can tell there was nothing meaningful that the substitute counsel could have done and he was there effectively for administrative purposes – on the facts of this case, because, “There is no colorable claim to prejudice in this case.”

On being detailed as substitute counsel post-trial the first step should be to make contact with the client. Only then can counsel be certain that . . . .

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of violating a general order, false official statement, and two specifications of larceny (from his fellow soldiers), in violation of Articles 92, 107, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, and 921 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for eighteen months, and reduction to the grade of E-1. The military judge further recommended that only twelve months of confinement be approved, if appellant made full restitution. The convening authority, as an act of clemency, limited confinement to fifteen months, and otherwise approved the adjudged sentence. In his brief, appellant raises one assignment of error, post-trial ineffective assistance of counsel, which warrants discussion, but no relief. (Emphasis added.)

So what was the post-trial IAC you ask? Yes, failure to get input from the client, but . . .

[A]ppellant’s defense counsel submitted a two-page memorandum to the convening authority as a request for clemency pursuant to Rule for Court-Martial [hereinafter R.C.M.] 1105/1106 along with four enclosures to the memorandum. The memorandum requested the convening authority grant clemency by disapproving appellant’s bad-conduct discharge and confinement in excess of six months. (Emphasis added.)

OK so far, the counsel noted the military judge had made a clemency recommendation for only 12 months confinement. You see it? A bit more.

The enclosures which accompanied the memorandum included a thirty-two page “good soldier book” containing a brief autobiography, awards, schooling, certificates, achievements, and letters of support. An e-mail from the mother of appellant’s child was also enclosed. Finally, the enclosures included a letter of apology to Private First Class (PFC) JG promising restitution and an accompanying money order, and an e-mail discussing appellant’s having paid restitution to PFC JG.

Sounds good does it not? Well,

Despite the voluminous R.C.M. 1105/1106 submission, appellant claims he was never advised by his defense counsel regarding his opportunity to submit clemency matters. Appellant avers, specifically, “My attorney never contacted me about my clemency matters nor was I advised that I was able to provide my own clemency letter.” Appellant submits, had he been contacted, he would have requested the convening authority limit confinement to twelve months, as recommended by the military judge, rather than six months, as his counsel requested, and would not have asked that the bad-conduct discharge or reduction in rank be disapproved or for any other relief. Appellant asserts that counsel’s bold request caused him to lose credibility with the convening authority.

ACCA finds no prejudicial error. Basically the CG gave some clemency but there’s no likelihood he would have gone down to 12 even if that were the request. ACCA does not say there was an error by defense counsel. They resolve that (apparently assuming error) there was no prejudice under Strickland.

It’s hard to tease out a teaching point from this case.

1. We see a common issue post-trial:

Appellant does not aver in his affidavit that he did not receive the SJAR. Nor does he suggest that he attempted to contact his counsel regarding his clemency submission or submit clemency matters on his own.

So there seems to be an assumption that the court agreed the trial defense counsel did not contact the appellant post-trial. But where did the restitution and the apology letter come from? Did they have it ready at the time of trial. I’ve certainly done that in cases and introduced a copy of the check (although some years ago I did have a trial counsel object this wasn’t proper mitigation).

What did the client say immediately after trial in the post-trial debrief with the client about a clemency request? I make it a habit to do this, that helps with focusing on what’s next. I might add this is when I really advise on post-trial rights. The post-trial rights forms used on the record are boiler-plate. Until you know the actual sentence it is unrealistic in my view to properly and fully advise on post-trial actions and rights.

Did the trial defense counsel believe that post-trial with all of the mitigation that the CA would be willing to consider six months vice 12? Or did the trial defense counsel fail to balance the mitigation against this being a barracks thief?

Before this court, Appellant has assigned two errors: (1) This court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under Article 66(c); and (2) the promulgating order contains three errors. We grant sentence relief for post-trial delay and otherwise affirm. . . . Notable delays in post-trial processing are found in the fifty-nine days apparently taken by the military judge to authenticate the record, the seventy-seven days taken after receipt of the authenticated record to produce the SJAR and send it to defense counsel, and the twenty-eight days between Convening Authority action and sending the record to Headquarters. The Memorandum forwarding the record gives no meaningful explanation for these delays, attributing them only to “administrative processing.”

Note to defense counsel.

Appellant did assert the right to timely review twice before the Convening Authority. On both occasions, the Government took its next step within three days of Appellant’s assertion of right. The appearance is that Convening Authority action might have occurred far later but for Appellant’s reminders to the Government.

The court found no prejudice.

We turn now to Appellant’s argument: that we should grant sentence relief under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), which held that we may grant relief for excessive post-trial delay without a showing of prejudice. Id. at 224. Upon finding unreasonable and unexplained post-trial delay, this Court may consider such delay, along with all the other facts and circumstances, in exercising its responsibilities under Article 66(c), UCMJ. Id. We have granted such relief in several cases, most recently in United States v. Beaber (C.G.Ct.Crim.App. 15 April 2010) (unpub.), and before that in United States v. Greene, 64 M.J. 625 (C.G.Ct.Crim.App. 2007).