United States v. Private E2 MATTHEW A. ERMINGER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before KERN, CARLTON, and YOB Appellate Military Judges UNITED STATES, Appellee v. Private E2 MATTHEW A. ERMINGER United States Army, Appellant ARMY 20110113 Headquarters, 2nd Infantry Division Thomas M. Kulish, Military Judge Colonel Jeffery D. Pedersen, Staff Judge Advocate For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Jennifer A. Parker, JA. For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed. 29 July 2011 --------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam: A military judge sitting as a special court-martial found appellant, pursuant to his pleas, guilty of conspiracy to commit robbery, violating a lawful general order, fleeing and resisting apprehension, robbery, and assault with a means likely to produce death or grievous bodily harm in violation of Articles 81, 92, 95, 122, and 128, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 892, 895, 922, and 928. The military judge sentenced the accused to a bad-conduct discharge, confinement for five months, and reduction to the grade of E1. Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence extending to a bad-conduct discharge, confinement for three months, and reduction to the grade of E1. Appellant has submitted his case for our Article 66, UCMJ review without assignment of error. Prior to the convening authority’s action in this case, defense counsel for appellant submitted post-trial matters pursuant to Rules for Court-Martial [hereinafter R.C.M.] 1105 and 1106. In this submission, defense counsel requested the convening authority disapprove the military judge’s findings in the court-martial, but approve the adjudged bad conduct discharge.[1] This could never be granted and amounts to a nonsensical request, as there is no possibility for a convening authority to approve a punitive discharge after setting aside all findings. Defense offered only extenuation and mitigation argument to support its request and did not raise any legal error associated with the military judge’s findings or sentence. The Staff Judge Advocate’s addendum in this case adhered to the prior Staff Judge Advocate recommendation that the convening authority approve the sentence in accordance with the pre-trial agreement, limiting punishment to reduction to Private E1, confinement for three months, and a bad conduct discharge. The Staff Judge Advocate’s addendum failed to comment on the irregularity of the defense submission or impossibility of the convening authority granting the request.[2] The convening authority followed the Staff Judge Advocate’s recommendation, which also included crediting appellant with four days confinement credit against the sentence to confinement. Our superior court has noted an accussed’s best chance for clemency rests with the convening authority. See United States v. Wheelus, 49 M.J. 283, 187 (C.A.A.F. 1997); United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994). In addition, “the convening authority’s obligation to consider defense submissions is uniquely critical to an accused.” United States v. Hamilton, 47 M.J. 32, 35 (C.A.A.F. 1997). We find the defect in defense counsel’s post-trial submission and failure of the staff judge advocate to comment on the inherently contradictory nature of the requested relief and, if necessary, serve this comment on defense counsel, to have prejudiced the appellant by preventing him from receiving meaningful consideration of his clemency request by the convening authority. DECISION The convening authority’s initial action, dated 1 April 2011, is set aside. The record of trial is returned to The Judge Advocate General for a new staff judge advocate recommendation and a new action by the same or different convening authority in accordance with Article 60(c)-(e), UCMJ. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- [1] In the appellant’s R.C.M. 1105/1106 submission, defense counsel made this request twice, noting in paragraph 4 of the submission: “The Defense requests that you disapprove the finding of guilty for all charges and specifications, but approve the bad conduct discharge,” restating this in paragraph 5 as: “For the above reasons, the Defense requests that you disapprove the verdict of guilty but approve the Bad Conduct Discharge portion of Private Erminger’s sentence.” [2] Paragraph 2 of the Staff Judge Advocate Addendum stated: “Through his defense counsel PV2 Erminger requests that you disapprove the verdict of guilty for all charges and specifications but approve the Bad Conduct Discharge portion of the sentence.”