UNITED STATES, Appellant
v.
Charles E. SINGLETON, Sergeant
No. 04-5004
Crim. App. No. 20010376
Argued
Decided
CRAWFORD, J., delivered the opinion of the Court, in which GIERKE, C.J., and EFFRON, J., joined. BAKER and ERDMANN, JJ., filed separate opinions concurring in the result.
Counsel
For Appellant: Captain Michael C. Friess (argued); Colonel Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, Major Natalie A. Kolb, and Captain Mark J. Hamel (on brief); Colonel Steven T. Salata.
For Appellee: Captain Charles Pritchard (argued); Lieutenant Colonel Mark Tellitocci, Major Allyson G. Lambert, and Captain Rob W. MacDonald (on brief); Colonel Mark Cremin.
Military Judge: Patrick J. Parrish
THIS OPINION IS SUBJECT TO
EDITORIAL
CORRECTION BEFORE FINAL PUBLICATION.
JUDGE CRAWFORD delivered the opinion of the
Court.
Sitting as a
general court-martial, a military judge convicted Appellee, pursuant to
his
pleas, of willful disobedience of a superior commissioned officer,
sodomy upon
a child under 12 years of age, and aggravated assault in violation of
Articles
90, 125, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
890,
925, and 928 (2000). Appellee was sentenced to a dishonorable
discharge,
confinement for 18 years, forfeiture of all pay and allowances, and
reduction
to the lowest enlisted grade. Pursuant to a pretrial agreement,
the
convening authority reduced the confinement to 14 years, but approved
the
remainder of the sentence.
At trial, the parties agreed that Appellee had been
confined
at the Camp Lejeune Brig for 143 days prior to trial, but they did not
discuss
unlawful pretrial punishment. Appellee’s submission to the Army
Court of
Criminal Appeals pursuant to United States v. Grostefon, 12
M.J. 431
(C.M.A. 1982), sought four-for-one credit for each of these days,
alleging he
had been confined in unnecessarily restrictive quarters; mingled with
post-trial prisoners; exposed to dust, fumes, cold temperatures, and
vermin;
denied access to a law library; and verbally demeaned by the
guards.
Appellee also alleged that he had been instructed by his defense
counsel not to
raise these issues at trial. In a pro forma response, the
Government
contended that the Grostefon issues lacked merit.
On February 6,
2003, the Army Court of Criminal Appeals ordered both parties to file
briefs
arguing whether Appellee was entitled to the requested credit, based on
the
uncontroverted facts Appellee had alleged, citing United States v.
Ginn,
47 M.J. 236 (C.A.A.F. 1997). In Ginn, we announced the
following
six principles to be applied by courts of criminal appeals in disposing
of
post-trial, collateral, affidavit-based claims, such as ineffective
assistance
of counsel:
In most instances in which an appellant files an affidavit in the Court
of
Criminal Appeals making a claim such as ineffective assistance of
counsel at
trial, the authority of the Court to decide that legal issue without
further
proceedings should be clear. The following principles apply:
First, if the facts alleged in the affidavit allege an error that would
not
result in relief even if any factual dispute were resolved in
appellant's
favor, the claim may be rejected on that basis.
Second, if the affidavit does not set forth specific facts but consists
instead
of speculative or conclusory observations, the claim may be rejected on
that
basis.
Third, if the affidavit is factually adequate on its face to state a
claim of
legal error and the Government either does not contest the relevant
facts or
offers an affidavit that expressly agrees with those facts, the court
can
proceed to decide the legal issue on the basis of those uncontroverted
facts.
Fourth, if the affidavit is factually adequate on its face but the
appellate
filings and the record as a whole "compellingly demonstrate" the
improbability of those facts, the Court may discount those factual
assertions
and decide the legal issue.
Fifth, when an appellate claim of ineffective representation
contradicts a
matter that is within the record of a guilty plea, an appellate court
may
decide the issue on the basis of the appellate file and record
(including the
admissions made in the plea inquiry at trial and appellant's expression
of
satisfaction with counsel at trial) unless the appellant sets forth
facts that
would rationally explain why he would have made such statements at
trial but
not upon appeal.
Sixth, the Court of Criminal Appeals is required to order a factfinding
hearing
only when the above-stated circumstances are not met. In such
circumstances the
court must remand the case to the trial level for a DuBay
proceeding.
During appellate review of the DuBay proceeding, the court may
exercise
its Article 66 factfinding power and decide the legal issue.
The Government’s brief included an affidavit from Chief Warrant Officer Two (CWO2) Laird, the executive officer of the Camp Lejeune Brig, as rebuttal to Appellee’s claims, and the defense response brief included an affidavit from Appellee reasserting and modifying his prior claims. The Government then submitted a second affidavit from CWO2 Laird. Both of CWO2 Laird’s affidavits focused largely on regulations, policies, and procedures generally applicable to brig operations, but neither affidavit directly refuted Appellee’s factual claims.
On
Remanding
the case for a DuBay hearing on the issue of ineffective
assistance of
counsel with respect to violations of Article 13, UCMJ, 10 U.S.C. § 813
(2000),
as well as the factual basis of four of the violations themselves, the
Army
Court directed Appellee’s trial defense counsel to “provide
information, by
affidavit or through DuBay testimony . . . .” The Army
Court
concluded by noting that if the convening authority determined a DuBay
hearing was impracticable, the Court would grant Appellee sentence
relief under
its decision in Fagan and this Court’s holding in United
States v.
Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002), holding that Article
66(c), UCMJ,
10 U.S.C. § 866(c) (2000), authorizes courts of criminal appeals to
grant sentence
relief for unexplained and unreasonable post-trial delay without a
demonstration of prejudice under Article 59(a), UCMJ, 10 U.S.C. §
859(a)
(2000).
The Government
sought reconsideration on
The lower
court’s opinion upon reconsideration in the present case provided that
if the
convening authority determined a DuBay hearing to be
impracticable, the
record would be returned to the Army Court, which would grant 33 days’
sentence
relief under Tardif and the Army Court’s decision in Fagan.2
The Government sought
reconsideration, oral argument, and suggested en banc
consideration,
supported by the affidavit of Captain (CPT) Oren H. McKnelly,
Appellee’s lead
defense counsel, denying Appellee’s allegations concerning CPT
McKnelly’s
representation and advice and avowing ignorance of Appellee’s claims
until
about two years after trial.
On
On
I. WHETHER THE UNITED STATES ARMY COURT
OF
CRIMINAL APPEALS ERRED IN GRANTING THIRTY-THREE DAYS OF CONFINEMENT
CREDIT AS
RELIEF UNDER THIS COURT’S DECISION IN UNITED STATES v. WHEELUS,
49 M.J.
283 (C.A.A.F. 1998), ABSENT A CONCESSION OR FINDING OF LEGAL ERROR,
WHERE THE
FACTS IN THE RECORD (TRIAL AND POST-TRIAL FILINGS) CLEARLY EVIDENCE
APPELLANT’S
MENDACITY, AND IN LIGHT OF THIS COURT’S DECISION IN UNITED STATES
v. FAGAN,
59 M.J. 238 (C.A.A.F. 2004).
II. WHETHER THE
UNITED STATES ARMY
COURT OF CRIMINAL APPEALS ERRED IN FAILING TO RESOLVE ALL OF
APPELLANT’S CLAIMS
OF UNLAWFUL PRETRIAL PUNISHMENT UNDER THE FIRST AND FOURTH GINN
FACTORS.
III. WHETHER THE UNITED STATES ARMY COURT OF
CRIMINAL APPEALS
ERRED IN FAILING TO RECONSIDER THEIR NOVEMBER 13, 2003 OPINION IN LIGHT
OF
AFFIDAVITS SUBMITTED BY APPELLANT’S TRIAL DEFENSE TEAM, CAPTAIN OREN
MCKNELLY
AND CAPTAIN COLLEEN SWEENEY.
DISCUSSION
We hold that the Court of Criminal Appeals, presented with a factual
dispute as
to some of Appellee’s allegations, did not err in ordering a DuBay
hearing rather than resolving the dispute on basis of competing
affidavits. Nor did the Court of Criminal Appeals err in giving
the
convening authority the option of ordering a DuBay hearing or,
if that
was impracticable, granting the relief specified by that Court’s
contingent
evaluation of Appellee’s affidavits.
The
Government argues that the court below was required to reject his
claims under
the first and fourth Ginn factors, supported by the affidavits
of
Appellee’s trial defense team, CPTs McKnelly and Sweeney. Ginn
gives the Court of Criminal Appeals authority not to order a DuBay
hearing “if the affidavit is factually adequate on its face but the
appellate
filings in the record as a whole ‘compellingly demonstrate’ the
improbability
of those facts . . . .” Ginn requires a DuBay
hearing when
a court of criminal appeals determines that a dispute cannot be
resolved
entirely by applying the Ginn framework to post-trial
affidavits.
There being
a factual dispute in this case that the Court of Criminal Appeals could
not
resolve under either the first or fourth Ginn principles, the
court
below properly ordered a DuBay hearing. Because the
convening
authority is in the best position to determine whether it is
practicable to
hold a DuBay hearing based on time, personnel, expenditures,
and
potential relief, the court below also properly offered the convening
authority
the option of either ordering a DuBay hearing, or if that was
impracticable, returning the case to the Court of Criminal Appeals to
grant the
relief it determined appropriate, based on its contingent evaluation of
Appellee’s affidavits. That option has been employed by our Court
in
numerous opinions. See
Although the
Army Court initially relied on Fagan, that court properly
applied the Ginn
principles and ordered relief only after receiving the convening
authority’s
knowing and informed DuBay declination, unaccompanied by
additional
Government pleadings. In this procedural posture, it would not
have been
unreasonable for the
The clear purpose of Ginn was to stop the
service
courts from resolving disputed factual issues on the basis of
extra-record
affidavits, without a trial-level hearing, except in certain, specified
instances. The action by the Court of Criminal Appeals properly
applied
our opinion in Ginn and was consistent with our decision in Fagan.
For the reasons set forth above, we affirm the
decision of the
Army Court of Criminal Appeals.
1
As to “rats and mice,”
the lower court disposed of this issue under Ginn’s first
principle, but
ordered that Appellee be permitted to present evidence thereon at the DuBay
hearing. After
noting that Appellee’s claim of disparaging language was not
specifically
rebutted and citing Appellee’s lack of specificity as to date,
frequency, or
identity of the offending guards, the
2 The court concluded that 5 days should be awarded for the guards’ referring to Appellee as “Private,” and 28 days for Appellee’s unwarranted exposure to cold temperatures in his cell.
BAKER, Judge (concurring in the result):
I concur in the result reached by the majority. This case is properly addressed through application of the third Ginn factor:
Third, if the affidavit is factually adequate on its face to state a
claim of
legal error and the Government either does not contest the relevant
facts or
offers an affidavit that expressly agrees with those facts, the court
can
proceed to decide the legal issue on the basis of those uncontroverted
facts.
The
Army Court of
Criminal Appeals was presented with an affidavit from Appellee alleging
specific instances of pre-trial punishment in violation of Article 13.
Appellee's affidavit was "opposed by post-trial assertions of a
prison administrator as to general prison practices."
On
this record,
the Army Court of Criminal Appeals concluded "that if [appellee]
accurately claimed that he was subjected to disparaging language by
guards and
was unnecessarily exposed to cold temperatures, he would have been
subjected to
unlawful pretrial punishment." 59 M.J. at 622.
However, this was a contingent legal conclusion. The Army Court
also
noted that "[Appellee's] failure to raise the issue of unlawful
pretrial
punishment to Brig officials, the military magistrate, his chain of
command, or
the convening authority is strong evidence that the conditions of which
he now
complains were not so abusive as to merit significant confinement
credit."
59 M.J. at 627. As a result, the Army
Court gave
the Government the option of holding a DuBay hearing to further
develop
the facts, or "returning this case to us without holding a DuBay
hearing" in which event the Army Court would award thirty-three days of
confinement credit. The Government chose the latter course.
Subsequently,
the
Based
on this
procedural history, I agree with the majority that this case is
appropriately
addressed through application of the third Ginn factor, the
Government
having failed to contest the relevant facts. As a result, the
In
applying the
third Ginn principle, I do not believe it necessary for us to
speculate
as to what the lower court may have done. It is clear what they
have done
– grant thirty-three days credit after giving the Government further
opportunity to rebut Appellee’s assertions, which assertions the
In finding contingent legal error in its initial November 2003 opinion, while also inviting further rebuttal, the Army Court of Criminal Appeals offered the Government the opportunity to assess the costs and benefits of a DuBay hearing with full knowledge of the stakes at hand. Such contingent legal review would seem to make sense and warrant commendation in the context of a military justice system with finite resources operating at a time of world-wide national security imperatives.
ERDMANN, Judge (concurring in the result):
I
agree with the
majority that the issue presented in this case can be resolved under
the
principles announced in United States v. Ginn, 47 M.J. 236
(C.A.A.F.
1997). I disagree, however, with a portion of the analysis
utilized by
the majority in reaching that result. In my view, after the
convening
authority determined that a DuBay hearing was impracticable and
the
Government failed to file any further responsive pleadings, the Court
of
Criminal Appeals could construe the Government’s failure to respond as
no
longer contesting the critical facts and could proceed to resolve the
issue
under the third Ginn factor.
The convening authority determined that a DuBay hearing was impracticable but the record does not specify the basis for that determination. The majority speculates that the convening authority “conceded” that a DuBay hearing was impracticable because of the potential relief of 33 days’ confinement credit. I decline to speculate as to the convening authority’s basis for finding that a DuBay hearing was impracticable, and in any event, do not believe that the convening authority could have made any factual or legal “concessions” that would have been binding on either the Government or the Court of Criminal Appeals. That is particularly true in this case where the mandate of the Army court gave the convening authority only two options, neither of which involved conceding factual or legal error.
A convening authority is not usually a party to appellate litigation under the Uniform Code of Military Justice and certainly is not a party in this litigation. I question whether any alleged concession by a convening authority would bind either the parties or the appellate court. Admittedly, the actions of a convening authority may constrain the options of the parties or appellate court, but until such time as the issue is squarely before us, I believe it is premature to suggest that the convening authority “clearly” has the authority to simply concede factual or legal errors in a manner binding upon appellate authorities. The convening authority had no fact-finding power and could not concede facts to moot a legal error any more than could the Court of Criminal Appeals in light of our decision in Fagan.
As I agree that the decision of the Army Court of Criminal Appeals should be affirmed, I concur in the result of the majority’s decision but would rely on the rationale set forth above.
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