Navy-Marine Corps Court of Criminal Appeals

United States v. Mosley

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.
. . .
The Defense then attempted to argue for 155 days of confinement credit in accordance with United States v. Mason, stating that the time the Appellant spent in restriction was tantamount to confinement. However, the trial defense counsel offered no evidence in support of this position, only arguing, “at the end of the case, it would be more—the military judge will be able to see it. But I think that I was just putting on the record now for your consideration.” The military judge noted [entries in] Block 8 of the charge sheet[.] With respect to the period of restriction, beginning on 13 December 2021 and ending on the current date, the military judge stated: the Court will obviously consider that as a matter in mitigation and permit you to argue it. But I’m going to—I’m not going to— I’m not going [to] award any credit for any of that period at this time. For any of that period being tantamount to confinement such that there would be additional confinement credit awarded at this time. But if you want to raise it after presentencing evidence has been presented, I’ll invite you to—to renew your motion at that time. The military judge invited trial defense counsel to present evidence in favor of Appellant’s motion for Mason credit following the presentencing hearing. After failing to do so, the military judge queried whether Appellant had any additional evidence, to which trial defense counsel responded, “no.” It is clear that the military judge sought to understand whether Appellant was entitled to credit and “explicitly invited Appellant” to put on evidence. Trial defense counsel declined to do so. 

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.

Appellant and his trial defense team took several unusual and potentially perilous courses of action in this case, not least of which was pleading guilty to all charges without the benefit of a plea agreement. Despite being unusual and potentially perilous, none of these decisions were unreasonable. Rather they appear to have been calculated, strategic and, indeed, successful. One measure to evaluate whether counsel’s performance was deficient is, logically, to consider the end result for Appellant and the totality of the record. Trial defense counsel presented a comprehensive strategy that resulted in an adjudged sentence of confinement that was 750 months below the maximum possible. The adjudged sentence also beat the confinement term apparently offered by the convening authority by half—30 months less than the apparent offer. And the military judge’s sentence was six months less than what the Government asked for at trial; therefore, it is not difficult to recognize the awarded sentence as just, if not favorable, to Appellant for the crimes to which he pleaded guilty. 

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.”

​We therefore reject this AOE.

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.
. . . 
[W]e are more convinced that the decision of the Defense not to file such a motion was based on all the available evidence, the lack of probability of success, and the strategic decision to use the information regarding restriction to influence the military judge’s sentence to the benefit of Appellant.

Could there be a case that is not RTC, but analyzed on the total facts, could be cognizable under Article 13?