Pretrial restriction tantamount to confinement is the issue of note (IAC comes up also). Notably, this was a naked guilty plea which
"fully exposed [the Appellant] to the maximum sentence in sentencing, which included a DD, TF, RiR E-1, [and] confinement for 65 years. In his unsworn statement, Appellant indicated that the convening authority refused to accept a plea agreement that would include a sentence of less than a dishonorable discharge and confinement for five years."
"(2) the initial plea agreement apparently offered by the convening authority and rejected by Appellant was for five years of confinement; (3) the Government at trial argued for confinement of 3 years[.]"
The MJ adjudged 30 months and a BCD.
Appellant claims that he “spent five months in [his] barracks room virtually 24/7,” that “[he] was not assigned any work,” and that [he] was not allowed to have contact with anyone except the OOD or [his] chain of command.
Is it possible to offer some evidence--some of it was likely sitting right next to the defense counsel?
The trial defense team’s strategic decisions in this case, straddling the concepts of sentence appropriateness and ineffective assistance of counsel, are relevant and warrant discussion at this point.
Perilous indeed. But there are a few cases where a naked plea or naked mixed pleas can work in the accused's favor. So don't read this opinion as suggesting against naked pleas as a strategy in the right case.
It's quite possible the strategy did work to save the Appellant 6 - 3 months on his confinement. Anecdotally, there was an military judge, since retired, who would on occassion deny an Article 13 motion, announce a sentence, and then would say, on the record, that but for government actions in the case, the sentence would have been x [more] months/years. Some MJs have been known to give a 1 for 2 or 1 for 3 days (similar to the Table we used to have for equivalent punishments in the MCM).
NMCCA concludes that the Appellant waived the RTC issue.
Here, the trial defense counsel mentioned Mason credit, but did not raise the issue in a motion, opting instead to raise the issue in Appellant’s unsworn statement. We find that Appellant waived the issue of Mason credit at trial. Such waiver “leaves no error for us to correct on appeal.”
NMCCA also concludes there is no IAC.
Appellant’s ineffective assistance of counsel claim rests on the premise that trial defense counsel should have filed a motion for Mason credit.
Isn't the error, if any, that the defense counsel failed to put on evidence, some of which could have come from the Appellant's limited testimony? While a bit confusing, should not the defense counsel's colloquy with the MJ be the equivalent of an inartful oral motion, rather than take a parsimonious reading? The MJ appeared willing to take up the issue as an oral motion?
Because of the IAC claim, NMCCA then dealt with the RTC issue.
After conducting our analysis, we find Appellant’s conditions were more akin to restriction than confinement. The CAAF has held “[a]n attorney’s decision to forgo taking actions that likely would be futile is not deficient.” As we have found that the conditions on Appellant were more akin to restriction than to confinement, a Mason credit motion would likely have failed. The strategic and tactical decision made by trial defense counsel to have Appellant raise this issue in his unsworn statement was reasonable under the totality of Appellant’s case and we decline to find that it constitutes deficient performance.
Could there be a case that is not RTC, but analyzed on the total facts, could be cognizable under Article 13?
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Amendments to UCMJ Since 1950 (2024 ed.)
Amendments to RCM Since 1984 (2024 ed.)
Amendments to MRE Since 1984 (2024 ed.)
Army Crim. L. Deskbook
J. App. Prac. & Pro.