New ACCA case

ACCA has released an unpublished opinion in United States v. Delagarza.  It’s an odd case.

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?

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