IN THE CASE OF
UNITED STATES, Appellee
v.
Teresa S. MILEY, Molder Chief
No. 98-0721
Crim. App. No. 9600822
Argued
Decided
ERDMANN, J., delivered the opinion of the Court, in which GIERKE and EFFRON, JJ., joined. BAKER, J., filed a dissenting opinion in which CRAWFORD, C.J., joined.
Counsel
For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USNR (argued).
For Appellee: Lieutenant Colonel John F. Kennedy, USMCR (argued); Colonel Michael Finnie, USMC (on brief).
Military Judge: N. H. Kelstrom
This opinion is subject to
editorial
correction before final publication.
Judge ERDMANN delivered the opinion of the Court.
Molder Chief Petty Officer1 (E-7) Teresa Miley entered guilty pleas and was convicted by a military judge of larceny and forgery in violation of Articles 121 and 123, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 921 and 923 (2000). She was sentenced by the military judge to a bad-conduct discharge, 105 days confinement and reduction to the lowest enlisted grade.
In accordance with the terms of a pretrial agreement, the convening authority suspended the bad-conduct discharge and any confinement in excess of 90 days for a period of 12 months. Approximately nine months into that period of suspended punishment, Miley provided a urine sample that tested positive for the presence of methamphetamine. In addition to imposing punishment on Miley under Article 15, UCMJ, 10 U.S.C. § 815 (2000) for wrongful drug use, her suspended sentence was vacated on the basis of the positive drug test.
The
Navy-Marine
Corps Court of Criminal Appeals affirmed the findings of guilty and the
sentence, including the vacation of Miley's
suspended
punishment.
After
noting that
the record included a number of conflicting and incomplete affidavits
regarding
the vacation proceeding, we concluded that the record was not
appropriate for
appellate review.
On remand, the convening authority chose to order a new vacation proceeding. At the conclusion of that proceeding, the convening authority again vacated Miley's suspended sentence and her case was transmitted to the Court of Criminal Appeals for a second review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).
The
Court of
Criminal Appeals once again affirmed the findings of guilt and the
sentence,
including the vacation of Miley's
suspended
sentence.
I. WHETHER THE LOWER COURT ERRED BY FINDING THAT THE VACATION HEARING OFFICER NEED NOT MAKE FINDINGS OF FACT AND PROVIDE A WRITTEN EVALUATION OF THE FACTS UPON WHICH SHE RELIED IN RECOMMENDING THAT THE SUSPENDED PORTION OF APPELLANT'S SENTENCE NOT BE VACATED WHERE THE GENERAL COURT-MARTIAL CONVENING AUTHORITY, WHO PROVIDED A WRITTEN EVALUATION OF THE EVIDENCE HE RELIED ON, DISAGREED WITH THE HEARING OFFICER'S RECOMMENDATION AND VACATED A PORTION OF THE SUSPENDED SENTENCE.
II.
WHETHER
THE
We hold that the vacation hearing officer's decision and recommendation to the general court-martial convening authority did not comply with the requirements of Rule for Courts-Martial 1109 [R.C.M.] and, as a consequence, that the Court of Criminal Appeals erred in affirming Miley’s findings and sentence. In light of the disposition of Issue I, we do not reach Issue II.
The convening authority opted to conduct a second vacation proceeding rather than conduct a DuBay inquiry concerning alleged deficiencies in the first vacation proceeding. The "vacation hearing officer", i.e., the special court-martial convening authority (SPCMCA), held a hearing in March of 2000 in accordance with R.C.M. 1109(d)(1)(A) for the purpose of determining whether Miley had violated the conditions of her suspension.
Miley’s defense to the alleged wrongful methamphetamine use was a claim of innocent ingestion, as it had been at the first vacation hearing. She asserted that her daughter’s boyfriend had stored methamphetamine in some Tylenol gel capsules that he had inadvertently left in their household. According to Miley, neither she nor her daughter was aware of the boyfriend’s actions and as a result her daughter had unwittingly given her two of the methamphetamine-laced Tylenol gel capsules for a headache. Miley also testified that she had become sick and began vomiting after taking the Tylenol gel capsules.
Although they did not testify in person at the second vacation proceeding, the testimony given by Miley’s daughter and the ex-boyfriend in the Article 15 proceeding was considered by the SPCMCA. That testimony supported Miley’s innocent ingestion claim, with the ex-boyfriend asserting that he had in fact lost his Tylenol gel capsules and believed that they had fallen from his pants pockets while changing clothes at the Miley residence.
Miley was the only witness to provide testimony at her vacation hearing. The SPCMCA also considered several items of documentary evidence, including the terms of the pretrial agreement, the drug laboratory report, and the record of the Article 15 proceedings. At the conclusion of the hearing, the SPCMCA indicated that she would “render [her] decision as to whether there is probable cause to believe that the conditions of [Miley’s] suspension have been violated; and if so, whether to vacate the suspended sentence . . . ."
After
adjourning
to consider the matter, the SPCMCA called the hearing back to order and
issued
the following ruling:
I have carefully looked over your issue. The bottom line is that I am not going to vacate your suspended sentence. That is the first thing, not because I don’t think you’re guilty, but because three years ago, the Navy should have done it correctly. Therefore the Federal Government and U.S. Navy should be held responsible for this. You should not have to come back three years later because the Navy didn’t do its’ [sic] job correctly the first time. I am not positive whether I buy your story or not. I have been here nine months at [Transient Personnel Unit], and I don’t buy many stories. Whether you knowingly ingested it or not, I don’t know. I believe you showed poor judgment in having an individual of that character in your house with your 17-year old daughter. I certainly hope that over the last three years you have seen the light, changed your behavior, and are now making a positive contribution to society.
I find that there was not probable cause to believe that the conditions of your suspension have been violated.
My recommendation is not to vacate the suspended sentence.
The Hearing Officer then completed the appropriate portions of DD Form 455 “Report of Proceedings”2 and formally recommended that the suspension of the sentence not be vacated. This DD Form 455 and a Record of Vacation Hearing were forwarded to the General Court-Martial Convening Authority (GCMCA) for review and further action.
The
GCMCA rejected
the SPCMCA’s recommendation that the
suspended
sentence not be vacated and provided the following summary of the
evidence he
relied upon:
1. In determining whether MLC Miley’s suspended sentence should be vacated, I considered: (a) her positive urinalysis of 3 June 96 (as evidenced by Navy Drug Screening laboratory ltr 5355 Ser 41/C1439 of 24 Nov 99 w/enclosures), (b) her claim of innocent ingestion, as set forth in the transcript of her testimony at the 20 March 2000 vacation hearing as well as her NJP appeal package of 18 July 96, which includes statements by [her daughter and her daughter’s ex-boyfriend], (c) her court-martial conviction for larceny and forgery, and (d) the terms of MLC Miley’s pretrial agreement.
2. On the advice of my Staff Judge Advocate, I did not consider any information about a polygraph examination to which MLC Miley may or may not have submitted; nor did I consider any of the information contained in exhibits (2) and (9) of the recorder’s document package. I note MLC Miley’s counsel objected to these documents at the hearing and the hearing officer did not accept these documents for consideration.
The GCMCA then went on
to provide
the following reasons for his decision:
1. I find MLC Miley violated the terms of her pretrial agreement when, during the period of her suspended sentence, she knowingly used methamphetamine in violation of Article 112A [sic], UCMJ.
2. I do not believe MLC Miley’s claim of innocent ingestion. The improbability of her story, in addition to her court-martial conviction for offenses involving dishonesty and deception, gives her little credibility. Further, the statement of [her daughter’s ex-boyfriend], an admitted drug-abuser, is unbelievable and offers little to support her claim. I am convinced MLC Miley knowingly used methamphetamine and, thus, violated the terms of her pretrial agreement.
The GCMCA then vacated the suspension of Miley’s bad-conduct discharge and her reduction to the lowest enlisted grade.
This appeal centers on the respective roles of the SPCMCA and the GCMCA in the process for vacating a suspended sentence of a general court-martial. That process is governed by Article 72, UCMJ, 10 U.S.C. § 872 (2000) and R.C.M. 1109, both of which require that the SPCMCA (1) conduct a hearing on the alleged violation of the conditions of suspension and (2) transmit a record of that hearing and his/her recommendation to the GCMCA. See Article 72(a)-(b); R.C.M. 1109(d)(1)(A), (D).
Upon
receipt of
the package, the GCMCA is required to review the record and the SPCMCA’s recommendation and decide whether the
probationer
violated a condition of suspension. If
so, the GCMCA must decide whether to vacate the suspended sentence. R.C.M. 1109(d)(2)(A). If a decision is made to vacate the suspended
sentence, the GCMCA is required to prepare a written statement of the
evidence
relied on and the reasons for that decision.
The SPCMCA conducted the required hearing and she sent a record of that hearing to the GCMCA along with DD Form 455. The GCMCA rejected the SPCMCA's recommendation and provided his required "written statement of the evidence relied on and the reasons for vacating the suspended sentence." R.C.M. 1109(d)(2)(A).
Miley contends that the process followed here
was
defective, however, because the SPCMCA never resolved the factual
questions
underlying the attempt to vacate her suspended sentence and made no
determination as to whether those facts, as found, warranted vacation
of the
suspended sentence. While the SPCMCA's recommendation was favorable to Miley, i.e., to not vacate the suspension, it
was not based
on any factual determination that Miley
had not
violated the terms of her suspension.
Rather, the SPCMCA's recommendation
appears to
have been based, as the Court of Criminal Appeals put it, "on equitable
grounds." Miley, NMCM
9600822 at 6
(N-M.
The
Court of
Criminal Appeals held that the SPCMCA as "the hearing officer [was]
obligated to provide an evaluation of any contested facts and a
determination
of whether the facts as found warrant vacation."
Although we need not decide today whether this is a requirement of constitutional dimension, we agree with the Court of Criminal Appeals that the SPCMCA is required to provide an evaluation of any contested facts and a determination of whether the facts, as found, warrant vacation of the suspension. That obligation arises as a requirement under R.C.M. 1109(d)(1).
The rule requires the SPCMCA to "personally hold a hearing" on the alleged violation of the conditions of suspension, make a summarized record of that hearing and to transmit both the record and a "written recommendation concerning vacation" to the GCMCA. R.C.M. 1109(d)(1)(A), (D). The SPCMCA acts as the GCMCA’s eyes and ears during this process and is the only official to personally observe the demeanor of the witnesses – in this case Miley.
The
requirements
set forth in R.C.M. 1109(d)(1) would have little meaning if the SPCMCA
was not
required to resolve any contested evidentiary questions and provide the
basis
for that resolution to the GCMCA. As
Senior Judge Everett has reminded us in the past, "'[a]lways
salt down the facts first: the law will
keep.' . . . In the very nature of
things, it is impossible for a court to enter a valid judgment
declaring the
rights of parties to litigation until the facts on which those rights
depend
have been 'salted down' in a manner sanctioned by law."
United States v. Haney, 45 M.J. 447,
448 (C.A.A.F. 1996)(quoting then North
Carolina
Supreme Court Justice Sam Ervin in Erickson v. Starling, 71
S.E.2d 384,
395-96 (N.C. 1952)). To the extent that
the hearing contemplated by R.C.M. 1109(d)(1) is the only "hearing"
conducted during the vacation process, it makes little sense to
conclude that
the rule does not require that any facts actually be "salted down" at
the hearing.
Accordingly, the "written recommendation" required of the SPCMCA under R.C.M. 1109(d)(1)(D) must include both an evaluation of the contested facts and a determination of whether the facts warrant vacation. The SPCMCA's comments at the conclusion of Miley's hearing that "I am not positive whether I buy your story or not" and "[w]hether you knowingly ingested it or not, I don't know" fall short of fulfilling the requirements of R.C.M. 1109(d)(1)(D). As the Court of Criminal Appeals noted, she "failed to evaluate the facts" and chose to make a recommendation based on "equitable grounds." Miley at 6. We must now address the consequences, if any, that flow from that error.
Citing
its
decision in Dupuis, the Court of Criminal Appeals concluded
that "[i]f the hearing officer fails to
provide the required
evaluation of facts, that defect may be cured by the GCMCA."
We disagree. While there may well be forms of error committed by an SPCMCA in fulfilling his or her responsibilities under R.C.M. 1109(d)(1) that a GCMCA's compliance with R.C.M. 1109(d)(2) might "remedy," a failure to evaluate and determine the contested facts is not one of them. While the GCMCA was “convinced that Miley knowingly used methamphetamine and, thus, violated the terms of her pretrial agreement” none of those facts were discussed or found by the SPCMCA, the official who was in the best position to evaluate the demeanor and credibility of the only live witness.
The
"record
produced by and the recommendation of" the SPCMCA is the basis upon
which
the GCMCA must "decide whether the probationer violated a condition of
suspension, and, if so, decide whether to vacate the suspended
sentence." R.C.M. 1109(d)(2)(A). As we have recognized in the past, the GCMCA's review of that record and his or her
ultimate
decision "represents a substantial right because the [GCMCA] may for
any
reason or no reason at all decide not to vacate the agreed-upon
suspension."
The GCMCA correctly set forth his decision and the evidence that he relied upon in making that decision, however the record that he relied upon was devoid of an integral step -- the resolution of critical fact questions by the SPCMCA. Miley had a substantial right to that step in the process and we will not speculate as to what decision the GCMCA may have made if the SPCMCA had properly evaluated and resolved the contested facts in the record. Cf. United States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)(refusing to speculate as to what the convening authority might have done if the post-trial review process had been conducted properly).
CONCLUSION
Accordingly,
the decision of the United States Navy-Marine Corps Court of Criminal
Appeals
and the action of the general court-martial convening authority in
vacating the
suspension of the sentence are set aside.
The record of trial is returned to the Judge Advocate General
for remand
to the general court-martial convening authority to determine whether
further
vacation proceedings are practicable. If
deemed practicable, the proceedings shall be conducted in a manner
consistent
with this opinion. If deemed
impracticable, the general court-martial convening authority shall
enter a
supplemental action in the record consistent with his or her
obligations under
the terms of the pretrial agreement.
Thereafter, Articles 66 and 67, UCMJ, 10 U.S.C. §§ 866 and 867 (2000) will
apply.
1
Chief Petty
Officer Miley’s Navy career field is that of a “Molder,” who is someone who operates all
types of
foundry equipment and makes molds and cores.
U.S. Bureau of Naval Personnel,
2 The full
title of the Form is “Report of Proceedings to Vacate Suspension of a
General
Court-Martial Sentence or of a Special Court-Martial Sentence Including
a
Bad-Conduct Discharge under Article 72, UCMJ, and R.C.M. 1109.”
BAKER,
Judge, with whom CRAWFORD, Chief Judge, joins (dissenting):
In Morrissey
v. Brewer, 408 U.S. 471 (1972), the Supreme Court recognized a
tension
between due process fact finding and the informal nature of parole
revocation
hearings. We have been cognizant of
these tensions as applied to vacating suspended sentences in the
military, United
States v. Bingham, 3 M.J. 119 (C.M.A. 1977), but in my view the
majority
here swings the pendulum too far in the direction of procedural form
and away
from essential substance. The
unfortunate consequence is an unnecessarily burdensome vacation
procedure that
may discourage commanders from suspending sentences where such
suspension is
warranted. Consequently, I respectfully
dissent.
Discussion
Appellant’s
vacation package included the following:
(1) The
report of the lab indicating that a member with Appellant’s Social
Security Number
had tested positive for drug use.
(2)
Paperwork reflecting the chain of custody for the urine sample in
question.
(3) A
report of the imposition of punishment pursuant to Article 15, Uniform
Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. § 815 (2000) on July 1,
1996,
and her subsequent appeal reflecting, inter alia,
(a)
the Commanding Officer’s determination by a preponderance of the
evidence that Appellant
had knowingly and wrongfully used methamphetamine; and, (b) that while
Appellant was aware of her right to contest the charged conduct at a
court-martial, she had ultimately accepted an Article 15.
(4) A two-page written statement from Appellant
providing her account of events leading to her innocent ingestion of
the methamphetamine.
(5) A
statement from Appellant’s daughter and her daughter’s boyfriend
stating their
accounts of Appellant’s innocent ingestion of the drug.
Before
making her vacation recommendation to the General Court-martial
Convening
Authority (GCMCA), the Special Court-martial Convening Authority
(SPCMCA),
acting as hearing officer, reviewed this documentation and took oral
testimony
from Appellant. Appellant’s testimony
describing the events leading to her innocent ingestion of the
methamphetamine
was consistent with her written statement.
The hearing
officer subsequently forwarded the documentation cited above, the
hearing
transcript, and her recommendation to the GCMCA. The
transcript includes the following
statement made by the hearing officer:
I have carefully looked over your
issue. The bottom line is that I am not
going to vacate your suspended sentence.
That is the first thing, not because I don’t think you’re
guilty,
but because three years ago, the Navy should have done it correctly. Therefore the Federal Government and U.S.
Navy should be held responsible for this.
You should not have to come back three years later because the
Navy
didn’t do its’ [sic] job correctly the first time.
I am not positive whether I buy your story
or not. I have been here nine months
at [Transient Personnel Unit (TPU)], and I don’t buy many stories. Whether you knowingly ingested it or not,
I don’t know. I believe you showed
poor judgment in having an individual of that character in your house
with your
17-year old daughter. I certainly hope
that over the last three years you have seen the light, changed your
behavior,
and are now making a positive contribution
to society.
I find that there was not probable
cause to believe that the conditions of your suspension have been
violated.
My recommendation is not to vacate
the suspended sentence.
(Emphasis added.)
The
majority concludes that the vacation package sent to the GCMCA lacked
three
requisites: (1) a written evaluation of
the contested facts; (2) a resolution of the contested facts; and, (3)
a
written determination of whether the facts, as found, warranted
vacation of the
suspension. The majority also states
that “Miley had a substantial right to that
step in
the process and we will not speculate as to what decision the GCMCA may
have
made if the SPCMCA had properly evaluated and resolved the contested
facts in
the record.” ___ M.J. (13). In my view, this record, evaluation, and
recommendation comply with applicable due process requirements. Black v. Romano,
471
The
hearing officer’s evaluation and recommendation certainly could have
been
refined. But the vacation hearing was
not intended to substitute for a judicial hearing; a hearing officer’s
evaluation of facts and recommendation are not intended to conform to a
military judge’s findings of fact and conclusions of law.
The Court in Morrissey and Romano
recognized that there is a tension in parole revocation hearings
between due
process and the informal nature of the proceedings in question. Morrissey, 408 U.S. at 484-85 (“We now
turn to the nature of the process that is due, bearing in mind that the
interest of both State and parolee will be furthered by an effective
but
informal hearing.”); Romano, 471 U.S. at 611 (“Our previous
cases have
sought to accommodate these [probationers’ and States’] interests while
avoiding the imposition of rigid requirements that would threaten the
informal
nature of probation revocation proceedings or interfere with exercise
of
discretion by the sentencing authority.”).
As a result, the Supreme Court sought a balance between the two
and
signaled to the legal field that subordinate courts should do the same
when
addressing comparable processes. Referring
to the preliminary hearing of a two step parole revocation process the
Supreme
Court in Morrissey wrote:
“[T]he
decision maker should state the reasons for his determination and
indicate the
evidence he relied on . . .” but it should be remembered that this is
not a
final determination calling for “formal findings of fact and
conclusions of
law.” No interest would be served by
formalism in this process; informality will not lessen the utility of
this
inquiry in reducing the risk of error.
408
In striking
the Morrissey balance in the military context, I believe the
majority
overlooks the Court’s caution regarding what it referred to as
“formalism.” In this case, the hearing
officer garnered the facts, evaluated them, and stated reasons
supporting her
recommendation. The hearing officer
found the facts inconclusive:
I am
not
positive whether I buy your story or not.
I have been here nine months at TPU, and I don’t buy many
stories. Whether you knowingly ingested it
or not, I
don’t know.
Although
the hearing officer might have better documented her conclusion that
she could
not determine who was telling the truth, I would not require a hearing
officer
to reach a factual conclusion when in her view the evidence does not
support
one factual conclusion over another.
That is a conclusion in its own right that the GCMCA can
effectively
consider while exercising his duty to decide on vacation and “complete
a written
statement ‘as to the evidence relied on and the reasons for revoking
parole’.” Bingham, 3 M.J. at 123
(quoting Morrissey,
408
The
more intensive procedures the majority desires will likely discourage
convening
authorities from suspending sentences as it may now appear too
difficult for SPCMCAs to create a
reversal-proof record. This would be an
unfortunate result. Suspended sentences
serve important societal
and military interests. They can be used
to provide essential income for innocent dependents compelled to
transition to
civilian society as a result of the military member’s conduct. Moreover, a suspended discharge may give a
commanding officer further time and opportunity to assess the
rehabilitation
potential of a once promising service member.
Suspended sentences also serve to regulate and encourage good
conduct
while service members await discharge or serve confinement.
Vacation
hearings might benefit from the sort of findings of fact more familiar
to
military judges than to commanding officers.
However, I believe such a requirement is neither compelled as a
matter
of due process nor currently found in Article 72, UCMJ, 10 U.S.C. § 872
(2000)
or Rule for Courts-Martial 1109. The
vacation record should include a transparent rendering of what occurred
and why
as well as a rendering of the evidence, but the process should not
unduly
burden commanders so as to discourage them from suspending sentences
where they
are warranted.
In
this case, the GCMCA had all the available facts and arguments on his
desk. He also had the hearing officer’s
honest,
transparent, and albeit ultimately uncertain assessment of Appellant’s
defense
on his desk. In my view, Appellant
received the process due and had fair opportunity to make her case. As a result, I respectfully dissent.