United States v. Myhrberg

OPINION OF THE COURT COOK, Judge: Appellant was convicted, in conformity with his plea, of a violation of Article 121, Uniform Code of Military Justice, (10 U.S.C. § 921) for stealing a winch valued at $300.00. The trial judge sitting alone as a special court-martial sentenced appellant to a bad-conduct discharge, confinement at hard labor for four months, forfeiture of $240.00 per month for four months, and reduction to the lowest enlisted grade. In his post-trial review1 the staff judge advocate stated that the “maximum sentenced based on correct findings” was a dishonorable discharge, confinement at hard labor for five years, total forfeitures and reduction to the lowest enlisted grade. Had appellant been tried by a general court-martial, the staff judge advocate’s advice in this particular would have been impeccably correct.2 However, as appellant was tried by a special court-martial authorized to impose a bad-conduct discharge, the staff judge advocate’s advice was grossly inaccurate in several particulars, i. e., as to the type of discharge, the length of confinement and the amount of forfeitures.3 As this Court has noted on several prior occasions, a misadvice of this type is preju [536] dicially erroneous.4 This is true even in the case of a bad-conduct discharge special court-martial.5 Either reassessment of the sentence or a new review and action was invoked to rectify the error.6 In all probability we would resort to a similar curative action in this instance were it not for the United States Court of Military Appeals opinion in United States v. Goode, 28 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975). The post-trial review in the instant case, dated 6 January 1976, was served upon the trial defense counsel on 7 January 1976. He signed a statement on that same date certifying that he had read the post-trial review and did “. . . not desire to submit anything in addition, explanation or rebuttal.” Thereafter, on 8 January 1976, the convening authority took his action in this case. In United States v. Goode, supra, the Court established a rule in the following terms: “Accordingly, it is ordered that on and after May 15, 1975, a copy of the written review required by Article 61 or 65(b), UCMJ, 10 U.S.C. § 861 or 865(b), be served on counsel for the accused with an opportunity to correct or challenge any matter he deems erroneous, inadequate or misleading, or on which he otherwise wishes to comment. Proof of such service, together with any such correction, challenge or comment which counsel may make, shall be made a part of the record of proceedings. The failure of counsel for the accused to take advantage of this opportunity within 5 days of said service upon him will normally be deemed a waiver of any error in the review.” 23 U.S.C.M.A. at page 370, 50 C.M.R. at page 4, 1 M.J. at page 6. Although it would appear from an unfettered reading of this rule that the trial defense counsel waived further consideration of this review error by his failure to comment on it, appellate defense counsel urges another result. That counsel would have us hold that the waiver aspects of the Goode rule are for exceedingly circumscribed application. This Court addressed this same contention in United States v. Turner, 2 M.J. 778 (A.C.M.R. 12 March 1976). A lengthy quote from that opinion will provide our answer to appellate counsel’s assertion. “. . . [I]t is his position that this error was not waived through the Goode process. He relies principally on the opinion in United States v. Austin, 51 C.M.R. 16, 2 M.J. 391 (A.C.M.R.1975), which held that the waiver aspects of the rule enunciated in Goode are for application only as to matters contained in the review which were derived from a source aliunde the record and which are unrebutted or unexplained by the trial defense counsel after service on him of the review. Failure of the trial defense counsel to comment on any other types of erroneous material contained in the post-trial review, no matter how egregious they may be in character, does not, according to the Austin decision, constitute a waiver thereof. We disagree. While conceding that the factual context of the Goode case involved adverse matters from outside the record, which were presented to the convening authority at the time of his action without having first afforded the appellant the opportunity of rebuttal, we do not feel that such facts circumscribe the scope of the rule. As noted above, there is no such delimiting language in the terms of the rule itself. It seems implicit from a reading of the explanation for the rule7 that the [537] rule was designed to markedly reduce the number of cases entertained on appeal that are bottomed on allegations of mistakes in post-trial reviews. The interpretation placed on the Goode rule by United States v. Austin, supra, would not accomplish this objective since it would apply waiver to only a limited category of cases. Just how limited becomes obvious from a consideration of the vast assortment and variety of errors that can be alleged to have occurred in a post-trial review. A recent article in The Army Lawyer enumerates 36 separate potential pitfalls in connection with the preparation of a post-trial review.8 To restrict the impact of the Goode waiver rule to only one or two of this multitude of possible errors would not appreciably ameliorate the ‘recurrent complaints’ ‘the continual and often repeated claims of error, plus the delay in determining their validity and correction,’ as the Goode rule was designed to do. As we view the Goode rule, the United States Court of Military Appeals is using it not only to reduce the number of these types of cases to be considered on review, but the Court is also employing the rule as a prod to animate and impel trial defense counsel to a more active participation in the post-trial review procedure. The Court has repeatedly emphasized that, ‘(i)t is at the convening authority level that the accused has his best opportunity to receive clemency.’9 The Court appropriately recognizes that the trial defense counsel shares with the staff judge advocate the duty to insure that the convening authority receives the most accurate information possible to aid him in the exercise of his broad prerogatives relative to findings and, more particularly, the sentence. We do not feel it will serve this salutary purpose if the waiver aspect of the rule is circumscribed as indicated in United States v. Austin, supra.10 ” We also note that the trial counsel in his closing argument on sentence stated that, “. . . some confinement should be adjudged so that it does have a deterrent effect, not only for the accused and his further conduct, but for the other individuals in the First Brigade and particularly those individuals who are given that responsibility to guard things, not only in the motor pool,11 but in other guarded areas on this installation.” This form of argument [538] was condemned by the United States Court of Military Appeals in United States v. Mosely, 24 U.S.C.M.A. 173, 51 C.M.R. 392, 1 M.J. 350 (1976). In this case, however, the subject of deterrence as a consideration in sentencing was first injected into the discussion by the trial defense counsel during his argument. We could, therefore, determine that there was no error since the defense invited this form of rebuttal.12 Nevertheless, we will consider the trial counsel’s argument erroneous and test for prejudice. Weighing the seriousness of the offense and the maximum sentence available against the sentence imposed, it is our opinion that the reference to deterrence in trial counsel’s argument had a negligible impact on the adjudged sentence. The findings of guilty and the sentence are affirmed. Senior Judges BAILEY and CLAUSE, Judges COSTELLO, DeFORD and DONAHUE concur. Judge O’DONNELL not participating. Footnotes [1] Prepared in compliance with paragraph 85 b, MCM 1969 (Rev.) and Article 65(b), UCMJ. [2] See paragraph 126, MCM 1969 (Rev.). [3] Article 19, UCMJ and paragraph 15b, MCM 1969 (Rev.), established the sentence perimeters as a bad-conduct discharge, confinement at hard labor for six months, forfeiture of two-thirds pay per month for six months, and reduction to the lowest enlisted grade. [4] United States v. Knoche, 46 C.M.R. 458 (A.C. M.R.1972); United States v. Maroste, 40 C.M.R. 606 (A.B.R.1969). [5] United States v. Bruce, 46 C.M.R. 968 (A.C. M.R.1972), which cites several unpublished decisions of like purport involving bad-conduct special courts-martial; United States v. Phenis, 43 C.M.R. 558 (A.C.M.R.1970). [6] Id. [7] “This case and others coming before the Court make it apparent that the post-trial review of the staff judge advocate has occasioned [537] recurrent complaints about what should be included in it. Similar outcries have been voiced because of the misleading nature of certain reviews. Because of these continual and often repeated claims of error, plus the delay in determining their validity and correction, we deem it appropriate and expedient to take corrective action.” United States v. Goode, supra, 23 U.S.C.M.A. at page 370, 50 C.M.R. at page 4, 1 M.J. at page 6. [8] La Haye, Check List of Post-Trial Review Errors, The Army Lawyer (Feb. 1976). [9] United States v. Goode, supra, 23 U.S.C.M.A. at p. 369, 50 C.M.R. at p. 3, 1 M.J. at p. 5; United States v. Boatner, 20 U.S.C.M.A. 376, 43 C.M.R. 216 (1971); United States v. Wilson, 9 U.S.C.M.A. 223, 26 C.M.R. 3 (1958); United States v. Wise, 6 U.S.C.M.A. 472, 20 C.M.R. 188 (1955). See also United States v. Beatty, 10 U.S.C.M.A. 311, 27 C.M.R. 385 (1959), wherein the author of the Goode rule expressed the opinion that service of a copy of the posttrial review on the trial defense counsel is mandated to give full effect to Article 38(c), UCMJ, and to aid counsel to properly perform his duties under paragraph 48j (3), MCM, U.S., 1951 (now paragraph 48k (3), MCM 1969 (Rev.)). [10] It should be noted that the application of this waiver provision would, of course, be subject to the same limitations, e. g., manifest miscarriage of justice, as any other waiver rule. Recent views of the Courts of Review of our sister services as to the scope and applicability of the Goode rule are expressed in United States v. Gilkey, No. 75 3213 (N.C.M.R. 19 March 1976); United States v. Salinas, No. 76 0198 (N.C.M.R. 29 March 1976); United States v. Chipman, No. 76 0266 (N.C.M.R. 23 March 1976); United States v. Hill, No. 23203, 2 M.J. 289 (C.G.C.M.R. 5 May 1976); United States v. Smith, No. 75 1927 (N.C. M.R. 26 March 1976); United States v. McGill, No. 75 1769 (N.C.M.R. 15 April 1976); United States v. Cummins, 1 M.J. 851 (A.F.C.M.R. 28 April 1976). The opinion in United States v. Austin, 51 C.M.R. 16, 2 M.J. 391 (A.C.M.R. 1975) is no longer for application. [11] The appellant perpetrated his theft while assigned as a guard in his unit’s motor pool. [12] But see United States v. Miller, 24 U.S.C. M.A. 181, 51 C.M.R. 400, 1 M.J. 357 (1976).