v.
Jerry L. SMITH, Private First Class
U.S. Marine Corps, Appellee
No. 96-5007
Crim. App. No. 95 1337
United States Court of Appeals for the Armed Forces
Argued January 8, 1997
Decided July 7, 1997
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Counsel
For the Accused: Lieutenant John J. Luke,
JAGC, USNR
(argued); Lieutenant Evelio K. Rubiella,
JAGC, USNR.
For the United States: Captain Daren K.
Margolin, USMC
(argued); Colonel Charles Wm. Dorman,
USMC (on brief).
Military Judge: M. R. Osborn
Opinion of the Court
CRAWFORD, Judge:
Pursuant to his pleas, the accused was convicted by a military judge sitting alone as a special court-martial at Camp Foster, Okinawa, Japan, of absence without leave (3 specifications), missing movement, failure to obey a lawful order, and wrongful appropriation of an automobile, in violation of Articles 86, 87, 92, and 121, Uniform Code of Military Justice, 10 USC §§ 886, 887, 892, and 921, respectively. He was sentenced to a bad-conduct discharge, 120 days' confinement, partial forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence but suspended confinement in excess of 80 days for a period of 12 months. The Court of Criminal Appeals set aside the bad-conduct discharge but otherwise approved the sentence. The Judge Advocate General of the Navy certified the following issues to this Court:
FACTS
The accused's guilty pleas were pursuant to a pretrial agreement. Paragraph 14 of that agreement provides as follows:
The judge made no inquiry as to the provision that the Government had to prove the misconduct at such a hearing by a "preponderance of the evidence." The judge concluded by explaining that the accused would have "certain hearing rights" concerning any misconduct considered by the convening authority to withdraw from the pretrial agreement for an act of misconduct prior to action, as well as hearing rights for any misconduct after action considered to vacate the suspension. The accused indicated that he understood all of the above.
After the sentence was adjudged, the accused's confinement in excess of 80 days was deferred pursuant to the pretrial agreement. Subsequent to serving the non-deferred confinement, and while awaiting return to the United States from Okinawa, the accused became intoxicated and slashed his wrist approximately five times using plastic safety razors. He was unsuccessful in killing himself, and he was discovered and taken to the base hospital in Okinawa. When this information was reported to the SCMCA, he had not taken action on the case. Pursuant to his interpretation of the misconduct clause in the pretrial agreement, the SCMCA convened a "vacation of suspension of sentence" hearing in accordance with RCM 1109, Manual for Courts-Martial, United States (1995 ed.), and Article 72, UCMJ, 10 USC § 872.
The accused received proper notification and attended the hearing. He waived his right to have legal counsel. The SCMCA and four other members of his staff were present at the hearing. A summary and a formal report of proceedings were prepared, and the SCMCA recommended that the suspension of the bad-conduct discharge be vacated.
This report did not indicate what, if any, standard was used by the SCMCA to determine whether the misconduct occurred. The pretrial agreement required a preponderance-of-the-evidence standard. Also, the report did not, as required, set forth "the reasons for the decision, and the information relied on." RCM 1109(c)(4)(C).
Prior to the SCMCA action, the staff judge advocate (SJA)'s recommendation referenced the misconduct clause in the pretrial agreement. While the SJA found that the procedures which would be used to "release" the SCMCA from the terms of the agreement were "not clear,"he advised the SCMCA that the procedures of RCM 1109 applied and stated as follows:
The SCMCA chose to approve the sentence but suspend confinement in excess of 80 days for a period of 12 months. He did not, however, suspend execution of the bad-conduct discharge. Consequently, he did not forward the report of the misconduct proceedings to the GCMCA for action.
Before the Court of Criminal Appeals, the accused argued that the SCMCA'S failure to suspend the bad-conduct discharge violated the pretrial agreement. That court agreed on the ground that RCM 1109 and Article 72 had not been complied with since the SCMCA'S report was not sent to the GCMCA for vacation of the suspension. It found that
Appellate government counsel argue that it is legally impossible to vacate a suspension that has not yet become part of the final action approved by the convening authority, and that the misconduct clause in the pretrial agreement released the convening authority from the sentence limitations when the accused committed misconduct prior to the convening authority taking action. Government counsel argue that precedents of the court below have validated the post-trial misconduct clause in the pretrial agreement if:
The Government also asserts that Article 72 does not apply because it is impossible to vacate a suspension which has not been imposed and because Article 72 does not mention such a possibility. Hence, the Government concludes that, because no requirement existed in the pretrial agreement for the results of any vacation or any misconduct hearing to be forwarded to the GCMCA, and because this was expressly explained to the accused, the hearing conducted by the SCMCA with the accused present was sufficient to satisfy due process rights and sustain the action of the SCMCA withdrawing from that part of the pretrial agreement which required him to suspend execution of the bad-conduct discharge.
Finally, government counsel contend that, even if we were to determine that RCM 1109 and Article 72 required that the report of the misconduct violation be forwarded to the GCMCA, the accused waived such a requirement by agreeing to the terms of the pretrial agreement.
Appellate defense counsel argues that the proper procedure to have been followed here, pursuant to the terms of the pretrial agreement, would have been for the SCMCA to forward to the GCMCA his findings and recommendation that execution of the suspension be vacated. The SCMCA would then take his action approving and suspending the confinement and the bad-conduct discharge, after which the GCMCA would vacate the suspension of both on the basis of the previously held hearing. Appellate defense counsel also asserts that, in order to provide the due process envisioned by RCM 1109 and Article 72, the misconduct hearing had to comply with the provisions of RCM 1109, regardless of whether the misconduct occurred prior to the convening authority action or afterwards. Defense Brief at 12.
As to the second issue, appellate defense counsel argues that the report of the SCMCA was insufficient because there was no specific finding that the accused committed the offenses by a preponderance of the evidence.
DISCUSSION
Article 72 provides:
RCM 1109(d)(1)(C) provides that "[t]he procedure for the vacation hearing shall follow that prescribed in RCM 405(g), (h)(1), and (i)." RCM 405(g)(1)(A) provides that "any witness whose testimony would be relevant to the investigation and not cumulative, shall be produced if reasonably available." RCM 405(h)(1)(A) states: "All testimony shall be taken under oath, except that the accused may make an unsworn statement. The defense shall be given wide latitude in cross-examining witnesses."
RCM 1109(d)(1)(D) states: "The officer who conducts the vacation proceeding shall make a summarized record of the proceeding and forward the record and that officer’s written recommendations concerning vacation to the officer exercising general court-martial jurisdiction over the probationer."
RCM 1109(d)(2)(A) provides:
The pretrial agreement between the parties, Article 72, and RCM 1109 all provide for a two-step procedure, regardless of whether the misconduct is prior or subsequent to the convening authority action. The procedure is as follows: After the required hearing is conducted by the SCMCA, the record of the hearing "shall" be sent to the GCMCA. Thereafter, the GCMCA will examine the record prepared at the vacation proceeding and decide what action to take. This second step is mandatory and represents a substantial right because the convening authority may for any reason or no reason at all decide not to vacate the agreed-upon suspension. Thus, because this second step did not take place, Certified Issue I is answered in the negative.
ISSUE II
As to the second issue, we hold that the SCMCA's summary and formal report were insufficient to establish that the accused committed the post-trial misconduct alleged to have been a violation of the pretrial agreement. The only person with the power to determine whether there was post-trial misconduct in violation of the pretrial agreement was the GCMCA.
Because the time contemplated by the pretrial agreement for suspension of the execution of the bad-conduct discharge has expired, we agree with the conclusion of the court below.
The decision of the United States Navy-Marine Corps Court of Criminal Appeals setting aside the bad-conduct discharge is affirmed.
Chief Judge COX and Judge EFFRON concur.
GIERKE, Judge (concurring in part and in the result):
I agree with the majority’s decision regarding
Issue I and join in answering the first certified question in the negative.
In my view, Issue II is rendered moot by our decision regarding Issue I.
See United States v. Clay, 10 MJ 269 (CMA 1981). Accordingly,
we need not decide whether the convening authority applied the correct
standard to determine the sufficiency of the evidence of misconduct or
made sufficient findings to support his action. I agree with the majority
and the court below that no useful purpose will be served by remanding
this case for a new convening authority’s action, since the bad-conduct
discharge was automatically remitted at the end of the period of suspension.
Accordingly, I join the majority in affirming the decision of the court
below.
SULLIVAN, Judge (concurring in part and dissenting in part):
There are two certified issues in this case.
I agree with the majority’s resolution of the first certified issue. The
second issue becomes moot in light of this resolution of Issue I. The majority’s
suggestion of an answer to this mooted issue moves this Court past the
line of judicial restraint that I refuse to cross. Judges should function
as members of the judicial branch of government deciding issues necessary
to resolve a case in controversy before them. Judges should not venture
into deciding policy as if they were members of a congressional subcommittee
or as if they were a group of assistant secretaries in an Executive department.
The law must grow out of controversy, not out of advisory policy making.