Joseph F. SANTORO, Yeoman Seaman Apprentice
U.S. Navy, Appellant
Crim.App. No. 95 0443
United States Court of Appeals for the Armed Forces
Argued March 5, 1997
Decided August 18, 1997
For Appellant: Lieutenant E. Rubiella, JAGC, USNR (argued); Commander M. T. Hall, JAGC, USN (on brief); Lieutenant James T. Mahoney, JAGC, USNR.
For Appellee: Captain Daren K. Margolin, USMC (argued); Colonel Charles Wm. Dorman, USMC, and Commander D. H. Myers, JAGC, USN (on brief).
Military Judge: Loeva J. Cook.
Tried at Naval Base, Norfolk, Virginia
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Pursuant to mixed pleas, appellant was convicted in 1988 by a military judge sitting alone as a special court-martial of larceny of property valued at $183.64 (shoplifting) and resisting apprehension, in violation of Articles 121 and 95, Uniform Code of Military Justice, 10 USC §§ 921 and 895, respectively. The military judge sentenced him to a bad-conduct discharge, confinement for 90 days, forfeiture of $440.00 pay per month for 3 months, and reduction to the lowest enlisted grade.
The convening authority approved these results on October 24, 1988. The convening authority’s action, which states that the "record of trial is forwarded to the Navy-Marine Corps Court of Military Review, Office of the Judge Advocate General, . . . for review in accordance with Article 65(a), Uniform Code of Military Justice," provides the last indication of the whereabouts of the record of trial. More than 7 years after the convening authority’s action, the Navy discovered that the record never had been received or reviewed by the appellate court. The Navy initiated a search, but the official record could not be located. During the search, audio tapes of the trial proceedings were found, as well as the convening authority’s action and the promulgating order. These documents, as well as an authenticated transcript made from the tapes, were forwarded to the Court of Criminal Appeals (formerly the Court of Military Review) as the "record" for its review.
In its unpublished opinion, dated nearly 8 years after appellant’s trial, the Court of Criminal Appeals provided the following description of the Government’s processing of the case:
In view of the missing exhibits and other deficiencies, the court determined that it was unable to assess the sufficiency of the evidence on the contested specification of resisting apprehension, and it dismissed the charge of resisting apprehension.
With respect to the charge of larceny, to which appellant had pleaded guilty, the court determined that the reconstructed record was sufficient to establish the providence of appellant’s guilty pleas and to establish that the court-martial was properly convened, that the charges were properly referred, and that defense counsel was served with the staff judge advocate (SJA)'s post-trial recommendation. Accordingly, the court affirmed the larceny conviction. Id. at 3.
Finally, the court concluded that it was unable to assess the appropriateness of the sentence in view of the missing exhibits and deficiencies in the record. As a result, the court affirmed a sentence of "no punishment" in lieu of the sentence adjudged at trial.
On appellant’s petition, we granted review of the following two issues:
WHETHER APPELLANT HAS BEEN DENIED A FULL AND FAIR REVIEW OF HIS COURT-MARTIAL PROCEEDINGS AS A RESULT OF INORDINATE DELAY IN FORWARDING THE RECORD OF TRIAL FOR APPELLATE REVIEW.
WHETHER APPELLANT’S PARTIALLY RECONSTRUCTED RECORD OF TRIAL IS SUFFICIENTLY COMPLETE, AS A MATTER OF LAW, TO SUPPORT THE CONCLUSION OF THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS THAT IT COULD APPROVE ANY PART OF THE FINDINGS OR SENTENCE AS CORRECT IN LAW AND FACT.
Article 54(c)(1), UCMJ, 10 USC § 854(c)(1), prescribes: "A complete record of the proceedings and testimony shall be prepared . . . (B) in each special court-martial case in which the sentence adjudged includes a bad-conduct discharge." The President -- through RCM 1103(b)(2)(D), Manual for Courts-Martial, United States (1995 ed.) -- has stated that "a complete record shall include," in addition to a transcript of the trial itself:
(ii) A copy of the convening order and any amending order(s);
(iii) The request, if any, for trial by military judge alone, or that the membership of the court-martial include enlisted persons, . . . ;
(v) Exhibits, or, with the permission of the military judge, copies, photographs, or descriptions of any exhibits which were received in evidence and any appellate exhibits.
This Court has held that, "when there is a substantial omission from the record, a presumption of prejudice arises" that the Government has the responsibility of rebutting. United States v. Gray, 7 MJ 296, 298 (1979); accord United States v. McCullah, 11 MJ 234, 237 (1981). The decisive action of the Court of Criminal Appeals in dismissing the charge of resisting apprehension and in negating all punitive aspects of the sentence has removed any possible claim of prejudice with respect to that charge and the sentence. Under the specific circumstances of this case, we are satisfied that the Government has carried its burden of rebutting any presumption of prejudice as to the remaining conviction of larceny that is based upon appellant’s guilty pleas.
First, although the charge sheet is missing, defense counsel waived a reading of the charges and made no motions or objections in connection with them. Moreover, the military judge’s providence inquiry effectively read into the record the substance of the charge sheet as to the larceny specification, including a description of the particular items that appellant had stolen. In light of counsel’s presumed competence, see Strickland v. Washington, 466 U.S. 668, 689 (1984), these factors rebut any presumption that the charge sheet would reveal any irregularities that appellant could pursue on appeal. See RCM 905(b)(2) and (e) (defects in charges or specifications must be raised before pleas or else waived).
Second, the military judge described the convening order in the record of trial. She named the convening authority, recited the fact that it was a special court-martial order, and noted the order number and the date of its publication. She also described the preferral and referral processes of each charge and specification. Although the order itself is not in the appellate record, the detailed description of the contents of the order in the record sufficiently rebuts any presumption of prejudice arising from its absence, particularly in view of the lack of any defense objection to the order at trial. See RCM 905(b)(1) and (e) (defects in pretrial process must be raised before pleas or else waived).
Third, the record reflects appellant’s oral request for trial by the military judge who was conducting the proceedings. The military judge approved that request and, in fact, conducted the remainder of the trial. This satisfactorily substitutes for any missing written request for trial by judge alone. See Art. 16(2)(C), UCMJ, 10 USC § 816(2)(C).
Fourth, as mentioned earlier, the original and dated convening authority’s action is a part of the appellate record.
Fifth, we agree with the Court of Criminal Appeals' conclusion that any prejudice to appellant resulting from omission of trial and appellate exhibits from the record can be cured by dismissing the contested Charge and affirming a sentence of no punishment. It is apparent from the record that none of the exhibits has any relevance to the remaining conviction of larceny.
Finally, any prejudice from omission of the SJA’s recommendation from the record was cured by the Court of Criminal Appeals when it dismissed the contested Charge and affirmed a sentence of no punishment. Again, in light of the fact that only the larceny conviction to which appellant pleaded guilty remains, we see no possibility of continuing prejudice from omission of the SJA’s recommendation from the record.
This is not an instance in which the Government seeks to rely upon presumptions of regularity to rebut the presumption of prejudice arising from the incomplete record. Instead, in the case of each missing document that is related to the only matter now at issue –- appellant’s conviction of larceny based on his pleas of guilty -- there is a substantial basis in the record from which to infer its content and to corroborate its regularity. In addition, appellate defense counsel acknowledged during oral argument before this Court: "It is evident from the record that he [appellant] was on active duty, that there was jurisdiction to try this person." With respect to the larceny conviction, the defense is in the best position to refute the Government’s rebuttal evidence by bringing to the Court’s attention any information that would indicate that the military judge erred in finding appellant’s plea to be provident or that the convening authority erred in approving the conviction for larceny based on appellant’s plea. The defense has presented no information that would call into question appellant’s plea of guilty. Under the unique circumstances of this case, we are persuaded that the Government has carried its appellate burden as to the only remaining finding of guilty and that the action of the court below has remedied any possible prejudice to appellant in the other finding and in the sentence.
Appellant also complains that he was "denied a full and fair review of his court-martial proceedings as a result of inordinate delay" in the appellate processing of his case. The carefully tailored remedial action ordered by the Court of Criminal Appeals, which we discussed in the preceding section, demonstrates that this appellant has received a full and fair review.
In United States v. Jenkins, 38 MJ 287, 288 (1993), we stated:
For its part, the Government, too, spent considerable effort during oral argument assuring us that the Navy has come to grips with its case-tracking difficulties. Counsel stated: "I can assure the Court as an officer of the Court that there is a case-tracking system in place that is effectively working." In this light, the Government contended that there is no need to "send a message."
No one can take comfort in the delays and defects reflected in this case. These problems arguably operated to deny society a full measure of justice because they left the Court of Criminal Appeals with little choice but to perform radical surgery on the findings and sentence. That result should be incentive enough to correct the problems for the future.
In this case, for the reasons discussed above, appellant has received the full measure of any possible relief to which he is entitled. Neither in his brief nor during oral argument did appellate defense counsel attempt to identify any particular harm to appellant that was not cured by the remedial action taken by the Court of Criminal Appeals. "Had he been prejudiced, we are certain he would have complained." Jenkins, supra at 289.
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
Chief Judge COX and Judges SULLIVAN, CRAWFORD, and GIERKE concur.