United States v. DeOliveira

OPINIÓN OF THE COURT DeFORD, Judge: The appellant, pursuant to his pleas, was convicted of absence without leave (2 specifications) in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886, by a military judge sitting as a special court-martial. He received an approved sentence that included a bad-conduct discharge, ten days confinement at hard labor, and forfeiture of $75.00 per month for three months. On appeal, appellant contends that the trial court committed error in admitting into evidence a summary court-martial conviction and three non-judicial punishments (Prosecution Exhibits 2, 3, 4, and 5 respectively) in violation of the decision of United States v. Booker, 5 M.J. 238 (C.M.A.1977). With regard to the summary court-martial conviction, Booker requires that in order for such conviction to be used for the purpose of enhancement of punishment, an accused must either be represented by counsel or execute a written waiver of assistance of counsel and accept trial by summary court-martial.1 The foregoing new rule involves matters concerning procedural due process of law and a departure from procedural concepts previously accepted. In addition, Booker did not address the issue of retrospective application of the new rules concerning summary courts-martial. In determining whether or not a new rule is retrospective in operation, courts are required to weigh the merits or demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.2 Where the issue involves matters concerning procedural due process of law, each ease must be determined by weighing the complex interests involved with regard to (1) purpose to be served by the new standard, (2) the extent of reliance on the old standards and, (3) the effect upon the administration of justice by a retroactive application of a new rule or standard.3 Here, the new standards enunciated in Booker with regard to summary court-martial convictions limited their application henceforth to disciplinary actions concerned solely with minor military offenses. In addition, it prescribed specific standards with regard to waiver of assistance of counsel as heretofore enumerated. The new standards represent an abrupt departure from the old substantive and procedural application of summary court-martial. Convictions obtained prior to Booker were obtained in good faith based upon [619] existing precedent and represent an operative fact which cannot be justly ignored.4 An untold number of convictions by summary courts-martial have been obtained in the past based upon the previous existing legal precedent. Retrospective application of the Booker standards would bar these convictions from use in military courts-martial. Retrospective application would, we believe, have an adverse impact upon the administration of criminal justice in the Armed Forces and such application would not provide stability, certainty or predictability to the law. Accordingly, we do not believe that the new standards enunciated in Booker would be enhanced by retrospective application. We therefore hold that the new standards and rules pertaining to use and application of convictions by summary courts-martial are limited to those summary courts-martial tried thirty days after the effective date of the decision in United States v. Booker, supra.5 Accordingly, we find no error in the admission into evidence of Prosecution Exhibit 2. With regard to the remaining nonjudicial punishments admitted into evidence, examination of the documents in question indicates that Prosecution Exhibit 3 was imposed upon the accused more than two years prior to its admission into evidence. Paragraph 3-15b(3)(d)3, AR 27-10, C-17, dated 15 August 1977, requires Prosecution Exhibit 3 to be removed from the accused’s 201 file two years after imposition of punishment. Accordingly, the admission of Prosecution Exhibit 3 was error. This Court has been unable to agree upon the impact of the Booker decision upon the admission into evidence of non-judicial punishments. However, we are unanimous in our view that whatever the impact of Booker may ultimately be, there is no prejudice to this appellant with regard to Prosecution Exhibits 4 and 5. United States v. Washington, 5 M.J. 615 (A.C.M.R. 1978). The remaining assignments of error have been considered and are deemed to be without merit. The findings of guilty are affirmed. Reassessing the sentence based upon the above-indicated error and the entire record, the sentence is affirmed. Judge MITCHELL concurs. Footnotes [1] United States v. Booker, 5 M.J. 238, 243 (C.M.A.1977). See also footnotes 18 and 20 of that opinion. [2] Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). [3] Id.; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). [4] See United States v. Martin, 4 M.J. 852 (A.C.M.R. 1978), and the cases cited therein. [5] October 11, 1977. We believe that a thirty day delay in the effective date of implementation will insure adequate time for the mandate to issue and for the decision to be distributed to counsel and judges.