CAAF Grants Review in United States v. Furth

8/27/2020

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.

Elizabeth Berecin

Research Fellow

5 Comments

Poster

8/28/2020 08:12:19 pm

See, this is the kind of BS courts have to deal with when a Trial Counsel Assistance programmer goes to the appellate court, RDC goes to Trial Counsel Assistance, and SJA can avoid the lawyers that can't hit their ass with both hands.

Phil Cave link

8/29/2020 03:27:33 pm

When an officer submits a RFGOS, the different authorities given to the convening authority and the Secretary of the Army may sometimes create tension over who will dispose of the charges. The convening authority determines whether to refer the case to trial. The Secretary of the Army (or the Secretary's designee) determines whether to accept the resignation. See Army Reg. 600-8-24, Personnel-General: Officer Transfers and Discharges, para. 3-13 (12 Apr. 2008; Rapid Action Revision 13 Sept. 2011). The question is "who gets to act first?"

This tension came to a head in the case of United States v. Woods, 26 M.J. 372 (C.M.A. 1988). In Woods, the accused submitted a RFGOS, but the Secretary's designee did not receive the resignation until after the convening authority had approved the findings and sentence. Id. at 373. The issue on appeal was whether the Secretary's subsequent approval of the RFGOS should be treated the same as if it had been approved pretrial. As our superior court stated, "It should be obvious that, if a Service Secretary has the authority to approve a resignation in lieu of a trial, the exercise of that authority should not depend upon a race between him and the convening authority to make a judgment." Id. at 374. Our superior court abated the proceedings and dismissed the findings and specifications. Id. at 375.

Likely in response to Woods, the Army's military justice regulation currently provides guidance about deconflicting the action of the Secretary when considering a RFGOS and the convening authority's action when approving the findings and sentence. In summary, the regulation requires the convening authority withhold action in a case until after the Secretary acts on the resignation. See AR 27-10, para. 5-18. If the resignation is approved, the regulation provides that the convening authority must, if directed by the Secretary's designee, disapprove the findings and sentence. Id.

Under this regulatory scheme, the convening authority's traditional Article 60, UCMJ, power was used to give effect to the Secretary's RFGOS decision as if it had been made pretrial. Under these procedures, the Secretary's designee could make a decision on the [*634] RFGOS without regard to when the court-martial took place. Regardless of whether the RFGOS was approved before or after trial, an approved RFGOS would be treated similarly. The fear of a "race" to a decision in Woods was prevented. Until recently, this regulatory compromise worked well. The statutory foundation for AR 27-10's regulatory compromise, however, relied entirely on the convening authority's ability to set aside the findings and sentence as a matter of command prerogative under Article 60, UCMJ. This foundation crumbled about four years ago.

Effective on 24 June 2014, Congress amended Article 60, UCMJ, to drastically limit a convening authority's power to dismiss or set aside a finding of guilty or disapprove, commute or suspend certain parts of the sentence in certain instances. One instance is relevant today. When the sentence includes a dismissal, the convening authority may not: 1) "[d]ismiss a charge or specification by setting aside a finding of guilty thereto;" or 2) "disapprove, commute or suspend, in whole or in part, that part of an adjudged sentence that includes . . . [a] dismissal." Rule for Courts-Martial (R.C.M.) 1107(c)(1)(B)(i) (action on findings); R.C.M. 1107(d)(1)(B)(ii) (action on sentence). There are two exceptions to this general prohibition, but neither is applicable to this case. In other words, the convening authority in this case could not set aside the findings of guilty. Nor could the convening authority set aside the dismissal.

In United States v. Alvin, ARMY 20150353, 2017 CCA LEXIS 722 (Army Ct. Crim. App. 21 Nov. 2017), we faced a similar issue. There, the convening authority's initial action was contrary to Article 60, UCMJ, limitations and would have deprived this court of jurisdiction. After the action had been served on the accused, which terminated the convening authority's ability to reconsider the action adverse to the accused (see R.C.M. 1107(f)(2)), the convening authority issued a new (and legal) action. We determined that the first action, as it was illegal, was "void ab initio." Alvin, 2017 CCA LEXIS 722, at *6. While we noted precedent that prohibited the convening authority from revisiting an action in a manner adverse to the accused, we stated:

To follow those precedents in a situation where the convening authority acts outside his authority would run squarely against Congressional intent as codified in the NDAA's changes to Article 60, UCMJ. Here, the statute expressly prohibits the convening authority from dismissing findings of guilty if the offense is one that carries a maximum punishment of greater than two years.

Id. at *5-*6. We concluded that to the extent that R.C.M. 1107 was in conflict with Article 60, "[w]e must give effect to the statute over the rule." Id. at *7.
We

8/29/2020 03:29:05 pm

Sorry, the quote from n re Vance, 78 M.J. 631 (ACCA 2018) was too long.

Contract Lawyer

8/29/2020 05:40:02 pm

I had a client at a court-marital submit a Chapter 10 request after we founds some bad facts from a witness the government hadn’t talked to. The judge was also leaning against ruling in our favor on some key motions (as if we really expected to win on motions). The military judge stated that he did not have to wait for the CG to act on the Chapter 10 request, but the TC was glad to get it and the judge held back anyway. I’ve also seen post-trial Chapter 10s and those superseded the findings and sentence, though this was also over 20 years ago. Though Chapter 10 is different then a resignation in lieu of court-martial, the concept is that acceptance of the request is supposed to supersede the court-martial.

A major concern for both enlisted and officer is that the request is supposed to avoid a conviction, even though the discharge is likely an OTH. Despite that, I have seen a couple of clients get general discharges and one of those was in response to the request after finding the bad info the TC did not know about. The guy had 18 years and I pushed for the general discharge in case my client could get a job at the post office or somewhere the time could transfer to.

8/29/2020 11:54:42 pm

Civilian control of the military. How is that so hard?

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CAAF Grants Review in United States v. Furth

Elizabeth Berecin

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