CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                             Before the Court Sitting En Banc

                            UNITED STATES, Appellee*
                                         v.
                         Private E1 TREVOR R. FORDYCE
                          United States Army, Appellant**

                                    ARMY 20090160

               Headquarters, XVIII Airborne Corps and Fort Bragg
                 Patrick J. Parrish, Military Judge (arraignment)
 Kirsten V.C. Brunson, Military Judge (trial) Colonel Gary A. Loxley, Staff Judge
                                  Advocate (trial)
   Colonel Barry R. Robinson, Acting Staff Judge Advocate (rec ommendation)

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller,
JA; Major Grace M. Gallagher, JA; Lieutenant Colonel Norman R. Zamboni , JA (on
brief); Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA;
Major Grace M. Gallagher, JA; Captain Todd Lindquist, JA (on reply brief).

For Appellee: Colonel Norman F.J. Allen, III, JA; Lieutenant Colonel Martha L.
Foss, JA; Major Christopher B. Burgess, JA; C aptain Madeline F. Yanford, JA (on
brief).
                                   6 May 2010

                            -----------------------------------------
                                 OPINION OF THE COURT
                            -----------------------------------------

CONN, Senior Judge:

       A military judge, sitting as a general court -martial, convicted appellant,
contrary to his pleas, of wrongful use of marijuana and larceny, in violation of
Articles 112a and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 921
[hereinafter UCMJ]. The military judge sentenced appellant to a bad -conduct
discharge, confinement for twelve months, and forfeiture of $500.00 pay per month
for six months. The convening authority approved the adjudged sentence.

       This case is before the court for review under Article 66, UCMJ. Appellant
asserts ineffective assistance of counsel during the post -trial processing of his case.
Appellant specifically alleges he suffered prejudicial error because his defense
counsel submitted clemency matters to the convening authority without input from
appellant and failed to submit a request to defer and waive forfeitures. Without
*Corrected
**Corrected
FORDYCE ARMY 20090160

reaching the ultimate issue of ineffective assistance, we find appellant has
established the requisite showing of possible prejudice and order a new review and
action.

                                   BACKGROUND

      At his sentencing hearing on 25 February 2009, appellant made an unsworn
statement, explaining he had a wife and five children. His enlisted record brief,
admitted as a trial exhibit, reflected that three of the children relied on appellant for
support, as did his wife, who was unemployed. Appellant explained, because of his
conviction, his family was ―at risk,‖ because they would have no financial support.

       Trial defense counsel also acknowledged appellant‘s family‘s financial
situation during argument on sentence, stating appellant is ―[a] soldier who has
responsibilities that far outweigh his paycheck.‖ When the military judge discussed
trial defense counsel‘s request for a bad-conduct discharge on his behalf, appellant
explained, ―It‘s in exchange to limiting the confinement because someone has to
provide for me and my family because my wife, at this time, she don‘t work. And
we have five kids altogether.‖

       On 31 March 2009, the trial defense counsel submitted a petition for clemency
pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1105 and 1106, which
stated, ―PVT Fordyce is a family man who supports his wife and five step -children.
His income is their sole source of support. Currently, his wife is not working as all
the children are under 6 years of age.‖ Counsel went on to argue for clemency in the
form of a sentence reduction. She did not request either deferral or waiver of
forfeitures on appellant‘s behalf. The submission did not include a statement from
appellant or any other enclosures.

       In support of his allegation of ineffective assistance of counsel, appellant
submitted a declaration to this court. In his declaration, appellant asserts two
matters. First, appellant claims he had no communications with his defense counsel
after his trial, and she afforded him no opportunity to submit clemency matters to
the convening authority. Appellant asserts if he had been afforded the opportunity,
he would have submitted a personal statement detailing his obligations to his family
and explaining his immigrant status, a letter from his mother, and a request for
deferral and waiver of forfeitures. Second, appellant specifically avers his trial
defense counsel never explained deferral or waiver of forfeitures to him. Appellant
states had he known of the option to do so, he would have requested waiver of
forfeitures.




                                            2
FORDYCE ARMY 20090160

       Trial defense counsel also submitted an affidavit . In it, she attested to several
telephonic conversations with appellant while he was confined. Defense counsel
asserts during these conversations appellant approved of the substance of matters
submitted on his behalf pursuant to R.C.M. 1105 and elected not to submit a
personal statement or other matters. Regarding deferral and waiver of forfeitures,
trial defense counsel notes she used a standard appellate rights advice form to
explain appellant‘s rights to him prior to trial. She states, however, ―The Post Trial
and Appellate Rights Form (PTAR) does not mention waiver. I c annot specifically
recall counseling PVT Fordyce on waiver. Therefore, I believe PVT Fordyce‘s
allegation may be true as to the failure to advise him regarding waiver of
forfeitures.‖ Counsel goes on to note that ―Paragraph 11 of the PTAR contains
advice on deferral, and I used this form to advise PVT Fordyce on his post -trial
rights, which he later signed . . . I know I covered deferral in paragraph 11, and I
recall sticking very close to that form.‖ Trial defense counsel does not aver that
appellant made a deferral request, however, nor does she explain why he failed to do
so.

                                     DISCUSSION

       Strickland v. Washington, 

, 687 (1984), established a two -part
test for ineffective assistance of counsel: an appellant must show both deficient
performance and prejudice from that deficiency. Because of the highly discretionary
nature of the convening authority's clemency power, we give an appellant the benefit
of the doubt and find there is a material prejudice to the substantial righ ts of an
appellant if there is an error and an appellant makes some colorable showing of
possible prejudice. United States v. Lee, 

, 53 (C.A.A.F. 1999).

         Failure to Advise on Request to Waive Forfeitures for Dependents

       First, we consider appellant‘s assertion trial defense counsel did not advise
him of his right to request waiver of the forfeitures imposed as a result of his court -
martial sentence. When, as here, an appellant submits a declaration under penalty of
perjury averring his trial defense counsel never advised him of his opportunity to
submit a request to waive forfeitures, we must determine whether the claim of
ineffectiveness of counsel can be resolved without recourse to a post -trial
evidentiary hearing. Since appellant‘s affidavit, as it pertains to the waiver of
forfeitures, is not rebutted, this court may decide the legal issue based on the
uncontroverted fact appellant was not advised of his opportunity to submit a request
for waiver of forfeitures. See United States v. Ginn, 

, 248 (C.A.A.F.
1997) (―[I]f the affidavit is factually adequate on its face to state a claim of legal
error and the Government either does not contest the relevant facts or offers an




                                            3
FORDYCE ARMY 20090160


affidavit that expressly agrees with those facts, the court can proceed to decide the
legal issue on the basis of those uncontroverted facts .‖).

         Under Article 58b, UCMJ, if an accused has dependents , 1 a convening
authority ―may waive any or all of the [automatic] forfeitures of pay and allowances
. . . for a period not to exceed six months,‖ and such money ―shall be paid . . . to the
dependents of the accused.‖ See also R.C.M. 1101(d)(1). We note Article 58b,
UCMJ has been in effect for more than fourteen years. See National Defense
Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat 186 (1996).
While admittedly a complex statute, our superior court clarified any ambiguities in
2002 when it clearly delineated the relevant provisions for waiver of forfeitures, as
well as the interplay of deferral pursuant to Article 57b , UCMJ. United States v.
Emminizer, 

(C.A.A.F. 2002). As the court succinctly outlined:

             First, upon application of the accused, the convening
             authority may defer a mandatory forfeiture until the date
             on which the convening authority approves the sentence
             under Article 60, and may rescind such deferment at any
             time. Art. 58b(a)(1); see Art. 57(a)(2). Second, if the
             accused has dependents, the convening authority has
             discretion to provide transitional compensation to such
             dependents for a limited period of time. In such a case,
             the convening authority may waive all or part of any
             mandatory forfeitures required by Article 58b(a) for a
             period not to exceed six months, and the mandatory
             forfeitures subject to such a waiver are paid directl y to
             dependents of the accused. Art. 58b(b).

       Trial defense counsel‘s affidavit explained she advised appellant of certain
options listed on an apparently ―standard‖ post-trial and appellate rights form. That
form, however, omitted any discussion of waiver of forfeitures for the benefit of
dependents. Counsel are responsible for evaluating compliance of standard forms
with the current state of the law. 2 Waiver of forfeiture is a well-established



1
 We note Army policy disfavors use of the term ―dependents‖ and instead uses
―family members.‖ We use the former term here because that is the language of
Article 58b.
2
 A simple explanation of Article 58b in appellant‘s post-trial rights form, along
with an explicit election, might well have mooted this issue. For example, ―If I have


                                           4
FORDYCE ARMY 20090160

provision of law and has been in effect since 1996. Our court, like our superior
court in Emminizer, has written opinions emphasizing interpretation and application
of this provision. See, e.g., United States v. Moralez, 

(Army Ct. Crim.
App. 2007). It is not a new, novel, or obscure aspect of military criminal law
practice. We expect defense counsel to fully inform their clients of this provision
and, when appropriate, advocate its application on their clients‘ behalf.

       It is advisable that a soldier personally request waiver and articulate the
reasons for the request. Unlike deferral, however, a court-martialed soldier need not
personally request waiver; a defense counsel may request it on an appellant‘s behalf ,
and a convening authority may grant waiver sua sponte. Lieutenant Colonel (Judge)
Christopher T. Fredrickson. Deferring and Waiving Forfeitures: Help the
Government Help Your Client, Army Lawyer, Dec. 2009 at 44.

       Trial defense counsel, in advising appellant, used a standard form ostensibly
provided to her to advise her client on post -trial matters. As such, it is difficult to
ascertain whether the failure to advise appellant on waive r of forfeitures was a
personal rather than institutional shortcoming. Under these circumstances, we
decline to make a specific finding that the presumption of professional competen ce
has been overcome. United States v. Alves, 

, 289 (C.A.A.F. 2000).
Although we do not conclude trial defense counsel was ineffective, we nonetheless
find there was error in the post-trial handling of appellant‘s case, because we are not
convinced appellant was ―afforded a full opportunity to present matters to the
convening authority prior to his action on the case.‖ United States v. Hawkins, 

, 995 (A.C.M.R. 1992). To prevail on an allegation of post -trial error,
appellant must assert prejudice as a result of the error. United States v. Wheelus, 

, 288 (C.A.A.F. 1998). In post-trial matters involving a convening
authority‘s decision, ―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.‘‖ 

(quoting United States v. Chatman, 

,
323-24 (C.A.A.F. 1997)).

      Regarding prejudice, this court need not decide whether the convening
authority would have granted the request for waiver. In this case, it is uncontested


(continued . . .)
financial dependents, I may request the convening authority waive any or all
automatic forfeitures of pay and allowances , to be paid to my dependents during
*** any period of confinement or parole not to exceed six (6) months. I do____do
not____ have DEERs enrolled dependents. If applicable, I request___do not
request____ my defense counsel to petition the convening authority to waive
automatic forfeitures for the benefits of my dependent(s). ‖

***Corrected


                                           5
FORDYCE ARMY 20090160

that appellant was not advised of the significant and well -established post-trial
option to request waiver of mandatory forfeiture s pursuant to Article 58b(b), UCMJ
for the benefit of his wife and children. Appellant has submitted a declaration
averring he would have done so, and established from the record of trial the obvious
and logical basis to support his request. Appellant, therefore, established a
colorable showing of prejudice. 

. On that basis, we order a
new review and action.

       Though we did not reach a conclusion as to whether appellant‘s trial defense
counsel was ineffective, we do not suggest approval of counsel‘s reliance on a
standard form, which omits advice regarding Article 58b. While we are confident a
new review and action will fully protect appellant‘s interest, the better practice of
fully informing appellant of his post -trial rights in writing would have avoided the
burden and expenditure of resources that will be occasioned by the new review and
action we order here.

       While our court has leniently addressed failures by trial defense counsel to
inform accused with dependents of the opportunity to submit a request for waiver of
forfeitures pursuant to Article 58b, UCMJ, our patience is at a limit. In the future,
such failures will be a significant factor when this court evaluates at least the first
prong of Strickland related to allegations of ineffective assistance of counsel where
an accused claims he was unaware of his right to request waiver of forfeitures for
dependents.

            Alleged Denial of Opportunity to Personally Submit Matters

        Our decision to order a new review and action moots ap pellant‘s assignment
of error related to an alleged lack of post-trial consultation and, specifically, his
opportunity to submit matters under R.C.M. 1105 and 1106. If he did not before,
appellant will now have such an opportunity. Nonetheless, we wish to take this
opportunity to suggest practices that might avoid unnecessary appellate litigation on
the issue of post-trial representation, raised with inordinate regularity before our
court. 3 Specifically, we strongly encourage adoption of practices, which make a
complete record of the post-trial process.




3
 See United States v. Scheuerman, 

, 712 n. 3 (Army Ct. Crim. App.
2009); United States v. Galloway ARMY 20080833 (Army Ct. Crim. App. 15 Apr.
2010) (unpub.); United States v. Kirou, ARMY 20081064 (Army Ct. Crim. App. 8
Apr. 2010) (unpub.); United States v. Howard, ARMY 20080807 (Army Ct. Crim.
App. 23 Dec. 2009) (unpub.); United States v. Mercado, ARMY 20080912 (Army
Ct. Crim. App. 30 Sept. 2009) (unpub.); United States v. Davis, ARMY 20070808
(Army Ct. Crim. App. 18 Aug. 2009).


                                           6
FORDYCE ARMY 20090160

       First, when possible, we urge the laudatory practice of some counsel to have
an accused co-sign R.C.M. 1105 and 1106 submissions, or at a minimum sign an
acknowledgement that the matters submitted are all the accused wishes to submit.
This is particularly the case where an accused does not provide a personal statement
as part of the submission.

       Second, we urge a practice, which would demonstrate on the record that
appellant received both proper written advice on post-trial rights and the opportunity
to submit post-trial matters to the convening authority. In this case, we note the
post-trial and appellate rights form appended to the record substantively informed
appellant of his personal opportunity to submit matters pursuant to R.C.M. 1105 and
1106. This is typical of virtually all such similar forms this court reviews. This
alone, however, does not fully establish appellant had a ctual notice of when he
needed to submit matters, triggered by receipt of the staff judge advocate
recommendation (SJAR) or authenticated record of trial (ROT). R.C.M. 1105(c)(1).
At a minimum, the accused must be served with a copy of the SJAR , unless
impracticable or the accused affirmatively requests otherwise in writing on the
record. 4 R.C.M. 1106(f)(1). A copy must also separately be served on accused‘s
counsel. 

appellant‘s written rights form, he elected to have the SJAR
served only on his counsel. Had appellant not affirmatively waived service of the
SJAR, proof of that service in the record would presumptively demonstrate appellant
was on notice not only of his right to submit matters, reflected by the written post-
trial and appellate rights advice, but also the deadline to do so following receipt of
the SJAR. Because this was not done in appellant‘s case, trial defense counsel
effectively bore the sole responsibility to ensure appellant availed himself of that
opportunity.

       We note with approval the amendments to the Military Judges‘ Benchbook,
subsequent to appellant‘s trial. Dep't of Army, Pam. 27-9, Legal Services: Military
Judges' Benchbook, paras. 2-4-2; 2-6-14 (1 Jan. 2010). 5 These changes to a

4
  An accused is also entitled to a copy of the ROT, receipt of which would also
trigger notice to an accused of the requirement to submit matters under R.C.M. 1105
and 1106. Article 54(d), UCMJ provides, ―A copy of the record of the proceedings
of each general and special court-martial shall be given to the accused as soon as it
is authenticated.‖ See also R.C.M. 1104(b)(1)(A). However, an accused may elect
substitute service of the authenticated record upon his trial defense counsel in
accordance with R.C.M. 1104(b)(1)(C), as was the case here.
5
 2-4-2 & 2–6–14. POST-TRIAL AND APPELLATE RIGHTS ADVICE (1 January
2010)



                                          7
FORDYCE ARMY 20090160

recommended discussion with an accused about post -trial rights now include an
inquiry into the accused‘s knowledge of what he can submit to the convening
authority, including ―requests for deferment and waiver of forfeitures‖ and advice to
be actively involved in submission of post-trial matters to the convening authority.

robust inquiry with an accused strengthens an objective record that an
accused has been fully apprised of hi s or her post-trial and appellate rights.

(continued . . .)
MJ: Did your defense counsel explain to you what matters you may submit to the convening
authority for his/her consideration under RCM 1105 and RCM 1106?
ACC: (Responds.)

MJ: Did your defense counsel explain to you that under RCM 1105 and RCM 1106 you may
submit any matters to the convening authority to include, but not limited to, a personal letter and
documents, letters and documents from any other person, requests for deferment and waiver of
forfeitures, and any other matter you desire for the convening authority to consider before taking
action on your case?
ACC: (Responds.)

MJ: Do you understand that it is your responsibility to keep in contact with your defense
counsel and let him/her know your desires in this regard?
ACC: (Responds.)

MJ: Do you understand that if your defense counsel cannot locate you it will be difficult for
him/her to know what to submit for you to the convening authority?
ACC: (Responds.)

MJ: Now, if your defense counsel tries to contact you but is unsuccessful, do you authorize him
or her to submit clemency matters on your behalf to the convening authority as he or she deems
appropriate?
ACC: (Responds.)

MJ: __________, do you have any questions about your post-trial and appellate rights?
ACC: (Responds.)



                                                 8
FORDYCE ARMY 20090160




                                      DECISION

       The convening authority‘s initial action, dated 2 April 2009, is set aside. The
record of trial is returned to The Judge Advocate General for a new staff judge
advocate recommendation and a new initial action by the same or a different
convening authority in accordance with Article 60(c)-(e), UCMJ. This remedy will
afford appellant the requested opportunity to submit clemency matters, including a
request for waiver of forfeitures, to the convening authority.

      Chief Judge TOZZI, Senior Judge JOHNSON, Judge HOFF MAN, Judge SIMS,
and Judge CARLTON concur.

      Judge GIFFORD took no part in the decision of this case.

COOK, Judge, concurring in the result:

        I concur with my esteemed colleagues in the result of this case and the
importance of trial defense counsel adequately advising and memorializing the post -
trial advice rendered to their clients. I write briefly, however, to address two
matters. First, the defense counsel‘s failure to advise the accused concerning waiver
of forfeitures was inexcusable under the facts and circumstances of this case, and I
would find the counsel ineffective for this dereliction.

        Second, I do not enthusiastically share that portion of the opinion, which
approves of amendments to the Military Judges‘ Benchbook requiring more colloquy
by military judges with an accused concerning discussions with defense counsel
about post-trial appellate rights. The Trial Defense Service community must
shoulder the responsibility for systems of practice that ensure relatively non -
complex matters are properly handled by individual defense counsel. Providing a
trial judiciary security blanket for defense counsel does relatively little to energize
the defense community to meet this responsibility—a point established by the effort
of this court to once again write concerning a claim of ineffective assistance of
counsel based on lack of proper advice by a defense counsel concerning waiver of
forfeitures. While a standard form is no substitute for institutional training and self-
development, had there been an item addressing waiver of forfeitures on a standard
form, the odds of this defense counsel covering waiver of forfeitures would have
been greatly improved.

HAM, Judge, concurring in the result:




                                           9
FORDYCE ARMY 20090160

       I agree we must return this case for a new post -trial recommendation and
action. I conclude we must do so, however, because trial defense counsel provided
ineffective assistance during the post -trial process.

       Allegations of ineffective assistance are examined under the well -known
standard established in Strickland v. Washington, 

(1984). Appellant
bears the burden of showing first, that his counsel‘s performance was deficient, and
second, that his counsel‘s deficient performance prejudiced him. 

To
prove deficient performance, ―Appellant must show ‗a reasonable probability that,
but for counsel‘s unprofessional errors, the result of the proceeding would have been
different.‘‖ United States v. Lee, 

, 53 (C.A.A.F. 1999) (quoting United
States v. Wiley, 

, 159 (C.A.A.F. 1997)). In the context of an allegation
of ineffective assistance during the post -trial phase, because of the highly
discretionary nature of the convening authority‘s clemency power, appellant meets
this burden if he makes ―some colorable showing of possible prejudice.‖ 

(citing United States v. Wheelus, 

, 289 (C.A.A.F. 1998)). See
also United States v. Rosenthal, 

, 263 (C.A.A.F. 2005). While an
appellant does not make a colorable showing of possible prejudice by ―sheer
speculation,‖ United States v. Brown, 

, 293 (C.A.A.F. 2000), an
appellant does meet his burden where he demonstrates that his actions, in response
to proper advice from his defense counsel , ―could have produced a different result.‖
United States v. Frederickson, 

, 57 (C.A.A.F. 2006) (citation omitted).
Effective assistance of counsel is especially important durin g the post-trial phase
because it is the accused‘s ―best hope for relief.‖ United States v. Howard, 

, 106 (C.A.A.F. 1997).

       Appellant alleges, and trial defense counsel does not meaningfully dispute,
that he was not advised of the right to req uest waiver of automatic forfeitures in
accordance with Article 58b(b), UCMJ. The failure to do so more than a dozen
years after the effective date of Article 58b because it is not part of a facially
deficient stock ―post-trial and appellate rights form‖ fell below any objective
standard of reasonableness, and constitutes deficient performance. 1 The lack of

1
  The post-trial and appellate rights form trial defense counsel used in this case is
wrong in more areas than its patently deficient failure to discuss waiver of automatic
forfeitures. In fact, although appellant was tried by general court -martial, the form
appears to address post-trial rights applicable only to trial by special court -martial.
Contrary to the majority opinion, this makes the deficiency here clearly a personal,
rather than an institutional failing, even in the absence of correct advice on the form
itself. Simply stated: not only is the form wrong —it is the wrong form. For
example, the form misstates appellant‘s right to have his case heard by this court,
stating that he is only entitled to our review ―if the convening authority approves a
bad-conduct discharge.‖ Of course, this court‘s jurisdiction extends, inter alia, to
                                            10
FORDYCE ARMY 20090160

meaningful dispute over whether defense counsel actually provided the advice at
issue also serves to distinguish this case from United States v. Key, where the
appellant merely could not recall his defense counsel advising him of his right to
submit a request for waiver of forfeitures. 

, 249 (C.A.A.F. 2002)
(holding that appellant‘s assertion was ―too equivocal and ambiguous to overcome
the presumption that his counsel were competent,‖ and fell short of the standard for
compelling defense counsel to justify their actions).

      In addition, under the facts of this case as set forth in the majority opinion,
appellant has met his burden of demons trating a ―colorable showing of possible
prejudice.‖ Therefore, I also conclude that defense counsel‘s deficient performance
prejudiced appellant. 2


(continued . . .)
cases in which the approved sentence includes either a punitive discharge ―or
confinement for one year or more.‖ UCMJ art. 66(b)(1). Second, the paragraph of
the form that partially discusses forfeitures states that ―by operation of Article 58(b)
[sic],‖ a sentence of appropriate severity ―will result in two -thirds forfeiture of pay.‖
Again, appellant faced trial by general court-martial, and faced forfeiture of all pay
and allowances if he received either a punitive discharge or confinement for greater
than six months, both of which, of course, he did receive. UCMJ art. 58b(a)(1)
(―The pay and allowances [automatically] forfeited, in the case of a general court -
martial, shall be all pay and allowances due that member during such period and, in
the case of a special court-martial, shall be two-thirds of all pay due that member
during such period.‖) These are fundamental concepts, and the mistakes here are
flagrant. One must ask, when the military judge inquired of appellant if his defense
counsel had explained his post-trial and appellate rights to him and whether he
understood those rights, to what rights was the military judge referring? As his trial
defense counsel recalls ―sticking very close to that form‖ it is apparent that
appellant was not properly or competently advised of his post -trial and appellate
rights.
2
  The court in Key seems to require a higher threshold for appellant to carry the
burden of proving prejudice due to deficient per formance of counsel 

. In Key, appellant did not establish prejudice where ―there was no
reasonable likelihood that the convening authority would have granted a request to
waive forfeitures‖ under the facts of the case , particularly in the absence of an ―offer
of proof regarding what [appellant] would or could have submitted to support his
waiver request.‖ 

the holding in Key was that the appellant did
not overcome the presumption of defense counsel competence, the court‘s discussion
of prejudice is dicta. In any event, the court continued to follow the Lee/Wheelus
analysis in cases decided after Key. See 

.

                                           11
FORDYCE ARMY 20090160

       Defense counsel‘s inexcusable failure to advise appellant of his right to
request waiver of automatic forfeitures is somewhat complicated by appellant‘s
adjudged forfeiture of $500.00 pay per month for six months. 3 Nonetheless, waiver
of automatic forfeitures beginning as early as their effective date (in this case ,
fourteen days after sentence was adjudged on February 25, 2009) and continuing for
six months or until appellant‘s release from confinement or parole, whichever
occurred first, was still an option to assist appellant‘s unemployed wife and
children. See 

(stating, ―if partial forfeitures take effect
under Article 57(a), the waiver authority applies only to any mandatory forfeitures
required under Article 58b‖). Appellant, in his unsworn statement, and trial defense
counsel, in both her sentencing argument and post-trial submission, discussed or
referenced his family obligations.

       Moreover, defense counsel‘s failure here is exacerbated by her request in her
post-trial submission that the convening authority grant as clemency ―[d]isapproval
of the adjudged forfeitures.‖ Even if granted, absent a request for and approval of
some form of clemency concerning the automatic forfeitures, neither appellant nor
his dependents would receive a dime during his period of confinement or parole
because, by operation of law, appellant forfeited all of his pay and allowances due
during that period. UCMJ art. 58b(a)(1). 4 This demonstrates to me the strong

3
  In general, a better overall defense strategy focused on monetary assistance to
dependents is to request deferral of adjudged and automatic forfeitures from their
effective date until action, disapproval of adjudged for feitures at action, and waiver
of automatic forfeitures for six months from action or until appellant‘s release from
confinement or parole, whichever occurs first, with direction that such waived
forfeitures go to appellant‘s dependents. See UCMJ arts. 57(a)(2) (deferral of
adjudged forfeitures), 58b(a)(1) (deferral of automatic forfeitures), and
58b(b)(waiver of automatic forfeitures), 60(c)(2) (disapproval of sentence in whole
or in part). See United States v. Emminizer, 

(C.A.A.F. 2002) ; United
States v. Moralez, 

(Army Ct. Crim. App. 2007). The dispute in this
case, however, centers only on the failure to advise of the right to request waiver of
automatic forfeitures, which the convening authority could order paid to appellant‘s
dependents for a period of up to six months beginning at any point from the date the
mandatory forfeitures took effect until six months from action or appellant‘s release
from confinement or parole, whichever occurred first.
4
  Appellant spent 183 days in pretrial confinement. He was tried and began his
period of post-trial confinement on February 25, 2009, and his adjudged and
automatic forfeitures took effect fourteen days later. The convening authority took
action in appellant‘s case on April 2, 2009. Finally, documents in the record of trial
indicate appellant began a period of excess leave on June 18, 2009, during which he
was not entitled to receive pay and allowances. United States v. Paz-Medina, 56
                                          12
FORDYCE ARMY 20090160

possibility that, apart from improperly failing to advise appellant of his options with
regard to waiver of automatic forfeitures, t rial defense counsel either did not
understand them or, worse, was not aware of them. 5

      Both the majority and the separate concurring opinions reflect this court‘s en
banc unmistakable frustration and disappointment at both the performance of
counsel in this case and the number of allegations of post -trial ineffective assistance
of counsel appellants are lodging before this court that result in new post-trial
recommendations and actions. Defense counsel should harbor no illusions
otherwise. Nearly twenty years ago, this court felt

             compelled to comment further on the responsibility of
             defense counsel to adequately represent their clients in
             post-trial matters. Former Chief Judge Everett . . . has
             observed that the right to counsel under the UCMJ is
             broader than that provided by the Sixth Amendment
             perhaps because ―Congress may have concluded that
             servicemembers, who risk their lives for their country,
             should be granted a right to counsel greater than that
             which would be minimally required by the Constitution.‖
             United States v. Johnson, 

, 213 (C.M.A. 1986).
             To meet this obligation in the post-trial phase, trial
             defense counsel . . . must do more than write half -hearted
             post-trial submissions just to meet an obligation of the
             Rules for Courts-Martial. We expect all defense counsel



(continued . . .)
M.J. 501, 503 n.6 (Army Ct. Crim. App. 2001) (citations omitted). ―When a
servicemember is not entitled to compensation covered by the mandatory forfeiture
provisions of Article 58b, [UCMJ], there is nothing to waive.‖ 

. See also 

(finding that even if the staff judge
advocate rendered incomplete advice to the convening authority concerning
forfeitures, because appellant, in all likelihood, was released from confinement by
the time of action, appellant would not have been entitled to forfeiture relief a s there
was no longer any pay to forfeit).
5
  The Supreme Court recently found deficient performance where a defense counsel
failed to advise a client concerning the immigration consequ ences of a federal
conviction—matters that might have intuitively seemed beyond a criminal attorney‘s
knowledge and expertise. See Padilla v. Kentucky, 

(2010). There is
simply no excuse for a military defense counsel to be unversed in the area of
automatic and adjudged forfeitures, matters falling directly in their area of practice.
                                           13
FORDYCE ARMY 20090160

             to perform the post-trial representation function in a
             professional manner.

United States v. Carmack, 

, 769 (A.C.M.R. 1993). Simply stated, this
case should serve as military defense counsel‘s ―wake up call‖ for zealous,
competent post-trial representation, a call this court should not have had to make
once again for this generation of military justice practitioners.

       A trial defense counsel‘s responsibilities do not cease at the end of trial.
R.C.M. 1105 and 1106. A trial defense counsel has the responsibility to review a
case after trial and to bring forth all legal issues and clemency matters which may
assist his client.‖ United States v. Garner, 

, 577 (A.C.M.R. 1992)
(quoting United States v. Harris, 

, 582 (A.C.M.R. 1990)). ―The law
makes no exception for wartime conditions.‖ United State v. Hawkins, 

,
995, n.6 (A.C.M.R. 1992). It is incomprehensible to me that we should once again
have to ―reinvent the wheel‖ in this area. See United States v. Palenius, 

,
93 (C.M.A. 1977) (discussing post-trial responsibilities of defense counsel). Scores
of cases from this court and our predecessor, the Army Court of Military Review,
and our superior court and its predecessor, the Court of Military Appeals, have set
forth how defense counsel should zealously and competently perform their post -trial
duties, many of them, unfortunately, responding to allegations that trial defense
counsel were ineffective in those duties.

       While trial defense counsel perform ―myriad duties‖ post -trial for their
clients, 

glean from the existing case law that t here are five main
components to effectively carry out counsel‘s post-trial duties. First, at issue in this
case, defense counsel must fully and accurately advise their soldier -clients of their
post-trial and appellant rights, including those rights concerning deferral and waiver
of forfeitures as applied to both adjudged and automatic forfeitures, and then
defense counsel must execute their client‘s decisions concerning those rights. See

. See also R.C.M. 502(d)(6) discussion (E).

       Second, defense counsel must maintain an ongoing attorney -client
relationship during the post-trial period, including regular communication with their
soldier-clients. 

. See also United States v. Hicks, 

,
93 (C.A.A.F. 1997) (―Just as counsel should consult with and keep the client
informed as to what is being done on the client ‘s behalf during the pretrial and trial
stages, so too should counsel engage in informative discussions with the client
during the post-trial stage‖); United States v. Clemente, 

, 551 (Army Ct.
Crim. App. 1999) (―[T]rial defense counsel must con sult with the client regarding
clemency and other matters, and must comply with the client‘s desires regarding
submissions to the convening authority‖). In the normal course of events,


                                           14
FORDYCE ARMY 20090160

             [o]nce a trial defense counsel is detailed to represent an
             accused soldier and an attorney-client relationship is
             established, absent an express release by the accused or
             good cause shown on the record, that trial defense counsel
             remains as counsel for the accused from preferral of
             charges, through action by the convening authority, and
             until appointment of appellate defense counsel.

United States v. Starks, 

, 1164 (A.C.M.R. 1993) (citations omitted).
See also United States v. Iverson, 

, 442-43 (C.M.A. 1978) (―Absent a
truly extraordinary circumstance rendering virtually impossible the continuation of
the [attorney-client] relationship, only the accused may terminate the existing
affiliation with his trial defense counsel prior to the case reaching the appellate
level.‖) Good cause is not established by administrative convenience, nor does it
include ―reassignment of defense counsel, even to a distant location.‖ 

(citing 

). See also R.C.M. 505(d)(2)(B) and
505(f). Unlike the Coast Guard Court of Criminal Appeals, we have never held that
deployment of either the soldier or his attorney establishes good cause, and, in fact,
defense counsel routinely remain on cases despite deployment or redeployment of
either the counsel or the represented soldie r. See United States v. Garcia, 

, 565 (C.G. Ct. Crim. App. 2009). As the Army‘s current practice forcefully
demonstrates, deployment is not a ―truly extraordinary circumstance rendering
virtually impossible the continuation of the [attorney-client] relationship.‖ 

-43.

        However, if good cause exists, substitute counsel may be appointed for
purposes of post-trial representation, and the attorney-client relationship with the
original trial defense counsel may be terminated. See 

. Good
cause includes ―separation of the trial defense counsel from the service prior to
completion of the convening authority‘s action. ‖ 

(citing
United States v. Zarate, 

(C.M.A. 1978) (summary disposition)); United
States v. Davis, 

(C.M.A. 1978). Good cause also exist s where the soldier
alleges his defense counsel provided ineffective assistance at trial , so long as
counsel is aware of the allegation. See United States v. Carter, 

(C.M.A.
1994). In any event, if substitute counsel is appointed counsel must both establish
and maintain an attorney-client relationship throughout the post -trial period. See,
e.g., Howard, 

(substitute counsel failed to establish attorney-client
relationship before responding to SJA recommendation); United States v. Miller, 

(1996) (substitute defense counsel failed to contact client and establish
attorney-client relationship before filing response to SJA recommendation).

       Regardless of whether the post-trial attorney-client relationship is continuing
or newly established, it does not end until ―appellate counsel have been properly

                                          15
FORDYCE ARMY 20090160

designated and have commenced the performance of their duties, thus rendering
further representation by the original trial defense attorney or those properly
substituted in his place unnecessary.‖ 

. This is to ensure ―the
uninterrupted representation of the accused.‖ 

counsel must review the staff judge advocate‘s
recommendation, and prepare his response to it. 

. While
counsel must consult with the soldier-client when determining whom to contact for
potential clemency submissions, it is the attorney‘s responsibility to gather and
prepare the post-trial submission, not the client‘s. 

(quoting
Harris, 

). 6 In fact, counsel risks deficient performance if he fails to
contact those persons the soldier-client identifies for clemency submissions, United
States v. Brewer, 

, 546 (Army Ct. Crim. App. 1999) , or if counsel
―improperly shift[s] his responsibility‖ to identify and gather appropriate materials
to his client. 

(finding counsel provided ineffective assis tance
post-trial when he relied on appellant and his wife to gather materials for
submission). Once prepared, the attorney must discuss the contents of the clem ency
package with the client—the failure to do so is deficient performance. United States
v. Hood, 

, 98 (C.A.A.F. 1997); 

. See also United
States v. Martinez, 

, 526 (A.C.M.R. 1990) (finding counsel ineffective
where he sent draft clemency petition to appellant but never followed up to ensure
appellant received it). Finally and critically in this area, counsel must qualitatively
advise their soldier-clients what submissions–by the soldier and others–are most
likely to result in the convening authority granting clemency. United States v.
Gilley, 

, 124 (C.A.A.F. 2001) (―Counsel has the responsibility to ‗make
an evaluative judgment‘ on what items to submit to the convening authority, and to
so advise the client.‖) (quoting and citing United States v. MacCulloch, 

,
239 (C.M.A. 1994)). ―If defense counsel thought some matters should not be
submitted, he should have so advised appellant.‖ 

.

       Fourth, despite the duty to qualitatively advise the soldier -client, once defense
counsel provides that advice, the defense counsel is bound to submit those matters
the client elects to submit. ―[C]ounsel do not have the authority unilaterally to
refuse to submit matters which the client desires to submit.‖ United States v. Lewis,

, 4 (C.A.A.F. 1995) (―Counsel‘s duty is to advise, but the final decision as
to what, if anything to submit rests with the accused.‖) . See also 

(―Hence, a defense counsel should neither submit matters over his client‘s
objection, nor fail to present matters that the client desires the convening authority
to consider‖). Accord 

(While ―defense counsel has primary
responsibility for strategic and tactical decisions . . . [d]efense counsel may not . . .

6
  In this regard, I specifically disagree with any suggestion in the majority opinion to
the contrary.
                                            16
FORDYCE ARMY 20090160

refuse to submit matters offered by the client or submit matters over the client‘s
objection.‖); 

(―Just as the accused controls the right to testify at
trial . . . the accused also has the right to submit or not submit material to the
convening authority over defense counsel‘s objection.‖)

       Fifth and finally, overlaying the first four basic tenets, appellate defense
counsel must, in consultation with the soldier -client, develop a strategy for the post -
trial phase, and devise tactics designed to succ essfully implement that strategy and
attempt to achieve its goals. See 

. In this case, the strate gy
leaping from the pages of the record was for defense counsel and appellant to seek to
ameliorate the financial impact of appellant‘s co nviction and sentence on his
dependent wife and children, including a request to waive automatic forfeitures for
their benefit. Because appellant was never even advised of his right to request
waiver of those forfeitures that take effect by operation of l aw, his defense counsel
rendered deficient performance. Because appellant would have submitted such a
request if correctly advised, he has ―show[n] what he would do to resolve the error if
given the opportunity.‖ 

. The record before us provides
ample evidence of what appellant ―would or could have submitted to support his
waiver request. . . . [v]ague or general intimations‘ about the ‗particular nature of
the materials‘ that would or could have been submitted are insufficient to show
prejudice.‖ 

(citing and quoting United States v. Pierce, 

, 151 (C.M.A. 1994)). Moreover, while by no means a certainty, appellant‘s
request to waive automatic forfeitures ―could have produced a differen t result.‖

(quoting 

). Accordingly,
appellant has made ―some colorable showing of possible prejudice,‖ 

, and he is entitled to the relief the majority grants him. See 

n.10 (convening authority can retroactively waive automatic
forfeitures for the benefit of appellant‘s family) (citation omitted).

      For these reasons, I concur in the result.


BAIME, Judge, concurring in the result:

       This decision troubles me, and as a result, I must concur in the result but not
the means relied upon to achieve it. This case sh ould be decided in one of two ways.
First, we could find counsel‘s performance was deficient and prejudice resulted from
that deficiency under the two-step analysis of Strickland v. Washington, 

, 697 (1984). Alternatively, we could find the convening authority did not have
the opportunity to review appellant‘s entire clemency submission . See United States




                                           17
FORDYCE ARMY 20090160

v. Wheelus, 

, 287 (C.A.A.F. 1998). 1 A finding of prejudice under either
analysis dictates we send the case back for a new review and action. The majority
opinion resolves the case on the latter basis despite a solid foundation to decide the
case on the former basis.

      After reviewing trial defense counsel‘s actions, or in this case, inactions, I
believe the legally correct conclusion is counsel was ineffective for failing to
properly advise appellant on his right to request waiver of forfeitures. Trial defense
counsel wrote in her affidavit appellant‘s ―allegation may be true as to the failure to
advise him regarding waiver of forfeitures,‖ and ―[s]ince waiver is not specifically
mentioned in the form [Post-Trial and Appellate Rights Form] and I do not have any
independent recollection of counseling him on waiver, I believe it may be true that I
did not go over it with him."

       The majority opinion, after describing circumstances establishing a prima
facie case of ineffective assistance of counsel satisf ying both prongs of Strickland v.
Washington, does everything but call her actions ineffective. The majority describes
actions constituting deficient performance. The majority‘s decision to return the
case for a new review and action demonstrates they co nclude prejudice occurred.
The majority‘s unwillingness to explicitly link the deficient performance and
prejudice together amounts to, in my mind, an overly paternalistic resolution of this
case.

       The court finds appellant ―established a colorable show ing of prejudice‖ and
orders the case returned for a new review and action because the convening authority
did not get a chance to completely review all of appellant‘s materials. In light of the
majority‘s resolution of this case under Wheelus, no discussion of ineffective
assistance of counsel is necessary because the court declines to find trial defense
counsel ineffective.

       I agree with the majority that post-trial representation is becoming an issue
we are facing with unfortunate regularity. Trial d efense counsel must remain
vigilant throughout the entire post-trial process and zealously represent their clients
until their representation fully ends and not merely until the military judge adjourns
the court-martial following sentencing.



1
  Our superior court has often noted, ―an accused‘s best chance for post -trial
clemency is the convening authority.‖ 

. Consequently, ―the
convening authority‘s obligation to consider defense [clemency] submissions is
uniquely critical to an accused.‖ United States v. Hamilton, 

, 35
(C.A.A.F. 1997). This is the approach we recently took in United States v. Kiriou,
ARMY 20081064 (Army Ct. Crim. App. 8 Apr. 2010) (unpub.).
                                         18
FORDYCE ARMY 20090160

      I would find appellant received ineffective assistance of counsel and send the
case back for a new review and action.

                                       FOR THE COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of Court
                                       Clerk of Court




                                         19