United States v. Perkinson

Opinion FLETCHER, Judge: This case * was granted review to consider two questions: I WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY FAILING TO (A) SET FORTH THE PROPER PROCEDURES TO BE UTILIZED IN RECONSIDERATION AND (B) DETAIL AND TAILOR HIS INSTRUCTIONS AS TO POSSIBLE CLEMENCY RECOMMENDATIONS TO [401] THE SITUATION WHICH HAD DEVELOPED? II WHETHER THE COURT-MARTIAL LACKED JURISDICTION TO PROCEED WHEN THE PURPORTED ORAL MODIFICATION TO THE CONVENING ORDER ON 3 MARCH 1981, APPARENTLY DETAILING THE MEMBERS WHO SENTENCED APPELLANT, WAS NOT REDUCED TO WRITING AND MADE PART OF THE AUTHENTICATED RECORD, AND THE ONLY WRITTEN CONFIRMATION IS IN THE FORM OF AN AFFIDAVIT EXECUTED APPROXIMATELY 11 MONTHS AFTER TRIAL? After perusal of the facts herein involved, we conclude that the only relief warranted relates to the second granted issue. In this case the special court-martial lacked jurisdiction to proceed and, thus, reversal of the court below is required. I We turn first to our disposition of the error alleged in granted issue I. It is clear “that the perusal of the sentencing worksheet by the judge, prosecutor, and defense counsel for error prior to the reading of the sentence by the president of the court ... [does] not amount to an ‘announcement' of the sentence as defined by our case law.” United States v. Justice, 3 M.J. 451, 454 (C.M.A.1977) (Fletcher, C.J., concurring). Regardless of whether, in light of this, the procedures in this case can be properly denominated reconsideration, our conclusion is that this situation did not raise the issue of clemency and necessarily call for more specific instructions. We have ruled that the military judge’s instruction to members must be adequate to allow the court “intelligently to determine a punishment appropriate to the accused before it.” United States v. Turner, 14 U.S.C.M.A. 435, 438, 34 C.M.R. 215, 217 (1964). “The language of Turner makes it clear that in a proper case it is error for the military judge to fail to disclose to the court members their right to recommend clemency.” United States v. Keith, 22 U.S.C.M.A. 59,63,46 C.M.R. 59, 63 (1972). During argument on sentence in United States v. Keith, supra, the question of a discharge other than a bad-conduct discharge had been discussed, and as a result a series of questions regarding this subject were posed to the military judge by the members. His response, however, was merely to reiterate that the court had only the jurisdictional power to impose a bad-conduct discharge. In spite of the fact that the members requested “guidance as to ‘what observations are available,’ ” id. at 64, 46 C.M.R. at 64, the military judge declined to give any instructions on the right of members to recommend clemency. Without examining the inherent prejudice because of other error, we declared this to be error. It should be noted that this principle was not applied in United States v. Turner, supra, where we ruled that, in spite of the failure to instruct on possible clemency recommendations, “the record of trial leaves no room for any inference of prejudice to the accused.” Id. at 439, 34 C.M.R. at 219. We believe that the facts of the present case do not sufficiently raise the possibility that the members intended to recommend clemency, so instructions were not required. After deliberations, the President provided the sentence worksheet to the military judge for his examination prior to their announcing sentence. The military judge stated: The .president has handed me appellate Exhibit V, the sentence worksheet and, next to number eight, which is to be discharged from the naval service with a bad conduct discharge, the words “bad conduct discharge” have been struck out and the words “general discharge as unsuitable for military service” have been inserted. Members of the court, the only discharge that may be included in the sentence of a special court-martial is a bad conduct discharge. With regard to that portion of the sentence, your only options are a bad conduct discharge or no [402] bad conduct discharge. Therefore, I am going to send you out to deliberate again and vote anew on the sentence. Further he stated: [M]embers of the court, under the law my perusal of the sentencing worksheet and pointing out an anomaly in the sentencing worksheet did not constitute an announcement of the sentence by the court. Therefore, I am going to send you out to reconsider the sentence in full. With regard to the discharge portion of the sentence, again, the accused may be sentenced to a bad conduct discharge or not. But those are your only options with regard to that portion of the sentence. And, again, nothing I have said is meant to imply any views that I may have on what an appropriate sentence might be. That is purely within your discretion as member[s] of the court. Now, having made that clear, does the court desire any other instructions to be repeated or explained? The mere attempt to award a general discharge, standing alone, was insufficient to signal an intention on the part of the members to recommend clemency. Under these facts, no instructions were required. II The second granted issue must be resolved in favor of the accused. At trial, government counsel announced that an oral amendment to the convening order had been made on March 3, 1981, and that the convening authority’s written confirmation of that fact would follow. Not until the absence of this written confirmation was raised before the Court of Military Review did a confirmation follow and this was in the form of an affidavit executed over 10 months later. We have clearly signaled our disinclination “to endow with a presumption of regularity” an “eleventh hour affidavit” to save “an otherwise ‘sinking record.’” United States v. Ware, 5 M.J. 24,25 (C.M.A.1978); see United States v. Carey, 23 U.S.C. M.A. 315, 49 C.M.R. 605 (1975). Absence of the written confirmation means the court members were not properly appointed. This is a jurisdictional defect which affects the entire trial. The decision of the United States Navy-Marine Corps Court of Military Review is reversed. The findings and sentence are set aside. The charges are dismissed. Footnotes [*] Appellant was found guilty of violations of Articles 121 and 130 of the Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 930, respectively. He was sentenced to a bad-conduct discharge. The findings and sentence were approved by the convening and supervisory authorities and affirmed by the United States Navy-Marine Corps Court of Military Review.