The Navy-Marine Corps Court of Criminal Appeals released U.S. v. Ledbetter, No. 200500009, unpublished op. (N.M.Ct.Crim.App. 14 Aug 2007). SPCM, military judge alone, guilty pleas, Arts 80, 81, 91, 95, 108, and 134. Sentence: 5 months, E-1, forfeiture of $500 pay per month for 6 months, and BCD. Appellant claimed (1) improvident plea to resisting apprehension, (2) he was deprived of right to counsel because trial defense counsel never contacted him regarding submission of clemency matters after NMCCA’s remand, (3) ineffective assistance of counsel prior to first CAX, and (4) post-trial delay.
The Court held: assignments of error 1 and 3 were without merit, and withheld ruling on 4. NMCCA resolved AOE 2 by setting aside the convening authority’s action (the 2nd one) and returned the case to the JAG for “proper post-trial processing.” On remand, the trial defense counsel, LT W, received the second SJAR and indicated by affidavit that she “attempted to contact the appellant telephonically using the number listed in her records, but . . . the number was disconnected with no forwarding information listed.” LT W made no other attempts to contact Appellant.
The court found that the circumstances demonstrated a “colorable showing of possible prejudice” and constituted “specific information . . . significantly different than what was already in the record” where 18 months elapsed between the 1st and 2nd convening authority actions, and Appellant submitted an affidavit indicating that he would have submitted, if contacted, (1) medical records documenting his alcohol dependence, (2) a letter from his counselor indicating good faith efforts to get treatment, (3) a letter from his current employer, (4) 3 letters from coworkers and customers, (5) 2 letters from neighbors, and (6) letters from his parents.
The court found trial defense counsel “deficient in failing to take reasonable steps to contact her client and determine his desires regarding submission of clemency matters to the [CA] after the case was remanded.” The court then vacated the 2nd CAX and remanded for submission of “full clemency matters” and another CAX.