Another stealth published NMCCA decision

On Halloween, NMCCA issued a published opinion in United States v. Mendoza, __ M.J. ___, No. NMCCA 200602353 (N-M. Ct. Crim. App. Oct. 31, 2007).

The opinion showed up today on NKO, though it still isn't available on NMCCA's web site or LEXIS. (For comparison purposes, ACCA's opinion in United States v. Conliffe is also dated on Halloween; it was up on ACCA's web site on All Saints Day.) I have posted Mendoza on CAAFlog's web site here.

Here's the issue in Mendoza: when an appellate court remands a case for a new CA's action because the original action was ambiguous, must the SJA or legal officer prepare a new 1106 advice and must the defense be given an opportunity to present clemency? Not necessarily, rules NMCCA.

The CA's original action in Petty Officer Mendoza's case stated: "only such of the sentence as provides for reduction to the grade of pay grade E-1, confinement for 90 days, is approved and except for the part of the sentence extending to a bad conduct discharge, will be executed." Five months after the CA took that action, NMCCA sua sponte sent the case back for a new action to resolve the ambiguity concerning whether the CA meant to approve the BCD. Two months later, the CA took a new action. Though NMCCA's opinion doesn't indicate what the CA did in this second action, presumably it made clear that he approved the BCD. When the case returned to the Navy-Marine Corps Court, the appellate defense counsel indicated that he had no issues to present. NMCCA then specified the issue of whether a new 1106 recommendation was required, with service on the accused, before the CA took that action.

NMCCA held:

[W]e decline . . . to establish a per se rule requiring the issuance of a new SJAR/LOR and provision of a new opportunity for the appellant to submit matters in clemency whenever a new convening authority’s action is issued. . . . [W]e conclude that the passage of time and the particular post-trial circumstances of an appellant may in some cases, create a presumption of staleness requiring a new SJAR/LOR and a new opportunity to submit clemency matters.

Mendoza, No. NMCCA 200602353, slip op. at 3.

But here's where things get tricky. NMCCA provides: "The passage of time, standing alone, will not raise a presumption of staleness. To raise the presumption, the appellant must submit some evidence of his changed circumstances and assert what, if any, material he would have provided to the convening authority if given a new opportunity." Id. But, of course, that is an entirely post-hoc standard. Before taking the action, how is an SJA or CA to know whether the accused would or wouldn't submit new matter if the defense is never given an opportunity to do so? After Mendoza, any reasonable SJA advising a CA upon remand will prepare a new 1106 action and serve it on the defense to avoid the case returning for a third CA's action. And surely that is what NMCCA intended -- to make that the default practice while declining to automatically grant relief to an accused if the SJA or legal officer fails to follow that prudent course. Indeed, NMCCA expressly observed:

[W]e also urge staff judge advocates and convening authorities to carefully consider whether the passage of time could have affected the appellant’s circumstances such that a failure to issue a new SJAR/LOR and provide the appellant a new opportunity to present clemency matters would “undermine the purpose of R.C.M. 1106.” [United States v. Lawhorn, No. NMCCA 200600128, slip op. at 12, 2007 CCA LEXIS 195 (N-M. Ct. Crim. App. June 20, 2007).] In such cases, the issuance of a new SJAR/LOR and provision of an opportunity to submit additional clemency matters may be a prudent course of action.

Mendoza, No. NMCCA 200602353, slip op. at 3.