United States v. Mitchell

Opinion of the Court FLETCHER, Judge: Contrary to his pleas, appellant was found guilty of damaging private property, disorderly conduct, and assault on a non-commissioned officer, in violation of Articles 109,134, and 91, Uniform Code of Military Justice, 10 U.S.C. §§ 909, 934, and 891, respectively. The military judge at this special court-martial sentenced appellant to a bad-conduct discharge, confinement at hard labor for 4 months, forfeiture of $300.00 pay per month for 4 months, and reduction to E-l. The convening authority approved this sentence and the United States Army Court of Military Review affirmed. The following issue was specified by this Court for review: WHETHER THE CONVENING AUTHORITY ABUSED HIS CLEMENCY POWERS WHEN HE INDICATED THAT HE INTENDED TO GRANT CLEMENCY IF THE TRIAL WAS COMPLETED IN AN EXPEDITIOUS MANNER WITHIN 15 CALENDAR DAYS OF REFERRAL. In general, we find this command conduct to be highly irregular and impermissible in terms of accepted practice at courts-martial. Article 36, UCMJ, 10 U.S.C. § 836. Nevertheless, in the present case, we have [239] determined that appellant was not prejudiced by this unorthodox prosecutorial action. Both parties to this appeal are in substantial agreement as to the facts pertinent to the specified issue. Appellant was charged with various offenses on January 10, 1981. The convening authority referred these charges to a court-martial on January 30, 1981. In directing this referral, the convening authority stated in writing: 3. I (do) (do-not) intend to grant clemency in this case if the accused’s trial is completed in an expeditious manner within 15 calendar days of referral. Convening orders were published on the same day as the referral. Appellant was tried on March 9, 1981, 39 days after the case was referred to trial. It was a one-day trial in which appellant called three witnesses, all of whom were stationed at the situs of the court-martial. After trial, defense counsel made no plea for clemency either by means of his Goode1 response or a brief filed pursuant to Article 38(c), UCMJ, 10 U.S.C. § 838(c). The convening authority did not grant clemency to appellant. As a starting point, we note that it is well-established that a convening authority in his discretion may disapprove a sentence which he has found “correct in law and fact.” Article 64, UCMJ, 10 U.S.C. § 864; see United States v. Kirsch, 15 U.S.C.M.A. 84, 91-92, 35 C.M.R. 56, 63-64 (1964), citing United States v. Massey, 5 U.S.C.M.A. 514, 520, 18 C.M.R. 138, 144 (1955). This broad power of sentence disapproval is normally exercised after the trial is completed. The question presented on this appeal asks whether the convening authority, prior to trial, may condition the exercise of this power in order to encourage appellant to complete the trial in an expeditious manner. The first problem in this case concerns the manner in which the convening authority attempted to utilize this sentence — disapproval power. His use of the referral statement as a method of conditioning his exercise of this power is at best ambiguous. In one sense, it can be construed as a mere statement of a future intention to exercise this power if appellant’s case is completed within 15 days. In another sense, it can be viewed as a promise to appellant to exercise this power if appellant succeeds in completing his trial within the specified period. The difference between the two is significant. Even if the trial is completed within 15 days, appellant under the first interpretation of this statement is not entitled to the actual exercise of this power by the convening authority. It also must be noted that the referral statement is not specific as to the extent this sentence-disapproval power will be exercised by the convening authority. In a broad sense, it can be construed to embrace disapproval of the entire sentence awarded by the court-martial. In a narrow sense, it can be construed to mean that a portion of the sentence, as small or as large as deemed appropriate by the convening authority, may be disapproved.2 This difference is also significant. Under the latter construction of this statement, the convening authority retains in substance the same discretionary power even if the trial is completed in 15 days. Significant problems of interpretation surround the convening authority’s referral statement in the present case. Although his power to disapprove a sentence is broad, we doubt that Congress intended it to be utilized in a manner which interjects confusion and speculation at a court-martial. See United States v. Dawson, 10 M.J. 142, [240] 146, 150 (C.M.A.1981). In addition, it must be noted that this referral statement has a tendency to discourage an accused from carefully preparing his defense and fully litigating his case at the court-martial. Consistent with our past case law, we cannot condone a command practice which expands the normal scope of plea bargaining. It constitutes impermissible interference with the trial and its procedures. See United States v. Holland, 1 M.J. 58 (C.M.A. 1975); United States v. Cummings, 17 U.S. C.M.A. 376, 38 C.M.R. 174 (1968); see also United States v. Dorris, SPCM 15391, unpublished opinion (ACMR September 22, 1981).3 Our disapproval of the convening authority’s conduct does not require us to reverse the findings of guilty or the sentence in this case. Article 59(a), UCMJ, 10 U.S.C. § 859(a). Appellant has not demonstrated, nor is there any indication in the record, that he curtailed his defense at trial to his detriment in reliance upon this referral statement. See Shepardson v. Roberts, 14 M.J. 354, 358 (C.M.A.1983); United States v. Kazena, 11 M.J. 28 (C.M.A.1981). Moreover, he did not request clemency after trial and did not present to this Court any basis for concluding clemency was otherwise appropriate. In the absence of a showing of prosecutorial vindictiveness or invidious discrimination, we hold that relief is not warranted. See United States v. Villines, 13 M.J. 46, 55 (C.M.A.1982). The decision of the United States Army Court of Military Review is affirmed. Judge COOK concurs. Footnotes [1] United States v. Goode, 1 M.J. 3 (C.M.A. 1975). [2] Trial defense counsel was permitted to file a statement with this Court in which he said, “The clemency to be granted by him [the convening authority] would be suspension of ‘A of any confinement adjudged so long as the total confinement time was not reduced below 30 days.” This understanding was confirmed by the staff judge advocate’s Memorandum for the Record also filed with permission of this Court. These documents were not part of the record of trial nor part of the convening authority’s referral statement. Such sub rosa understandings are not an accepted method of practice at courts-martial. See United States v. Green, 1 M.J. 453, 456 (C.M.A. 1976). [3] There the United States Army Court of Military Review said: However, we find objectionable that provision of the ERD program which requires an accused to complete his trial within 15 days, because it may unduly influence an accused to forego adequate preparation of his case, to abandon efforts to contact distant witnesses, or to forego efforts to obtain individual military or civilian counsel. Unpublished opinion at 2.