On Tuesday, August 25th, CAAF granted the following petition for review.
No. 20-0289/AR. U.S. v. Kevin M. Furth. CCA 20180191. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS ERRONEOUSLY ADVISED THAT HIS PENDING RESIGNATION REQUEST, IF APPROVED, WOULD VACATE HIS GUILTY PLEA.
CAAF reviews U.S. v. Furth, on an issue that was personally submitted to ACCA pursuant to U.S. v. Grostefan. Furth, on appeal to ACCA, argued that his plea was improvident because he believed that acceptance of his RFGOS would vacate his findings and sentence and that the Secretary's approval of his RFGOS was an exercise of his power under Art. 74, UCMJ. Additionally, Furth submitted a Grostefan issue alleging that if the RFGOS did not set aside his findings and sentence, then he received IAC because he was advised that his plea would have that effect.
ACCA only discussed Furth's Grostefan issue in a footnote, stating that they did not find any prejudice in his counsel's alleged deficiency. Furth's affidavit submitted to ACCA included the following language, "[i]f I had known that pleading guilty would have prevented me from fully benefitting from an approved RFGOS, I would not have pleaded guilty prior to receiving a decision on my RFGOS." However, ACCA was not persuaded by this statement, stating that Furth did not state that "he would have pleaded not guilty but for his counsel's advice regarding the effect of a RFGOS approved post-trial." Additionally, ACCA stated that it was "objectively reasonable" to accept the plea deal. CAAF now reviews ACCA's finding that Furth was not prejudiced by his counsel's alleged deficiency.
ACCA's opinion here.