United States v. Rodriguez-Amy

Opinion FLETCHER, Judge: We are called upon in this case to determine whether denial of oral argument on sentence appropriateness before the United States Army Court of Military Review denied this appellant his due-process rights. 16 M.J. 134. Pursuant to his pleas, appellant was convicted at a special court-martial on May 12, 1981, of two specifications of adultery in circumstances both service discrediting and prejudicial to good order and discipline. This was in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The sentence awarded by the military judge consisted of a bad-conduct discharge, reduction to E-l, — 178 — and 80 days’ confinement at hard labor. This was approved by the convening authority, who suspended for one year confinement in excess of 22 days. We have examined the record of trial available to the intermediate court for its review of this case which culminated on March 23, 1982, and conclude, in light of federal precedent, that this record, which was accompanied by appellate defense briefs totaling fourteen pages, fully protected his due-process rights, even in the absence of oral argument before the United States Army Court of Military Review. The verbatim record of appellant’s trial proceedings consisted of 54 pages. Included were the presentencing proceedings of the trial reflecting appellant’s service record. In extenuation and mitigation, appellant testified under oath about his enjoyment of the Army, his desire to remain in the service, and his family circumstances surrounding a three-day absence. Defense counsel made an argument on sentence covering four pages of the record. This record, with all accompanying exhibits, was provided to the Court of Military Review for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866. Also available was a petition for clemency in the allied papers submitted to the convening authority which resulted in suspension of the unserved portion of adjudged confinement. A panel of the United States Army Court of Military Review declined unanimously to hear oral argument on the issue of sentence appropriateness after briefs on the issue had been submitted. For many years under the Court of Military Review rules, oral argument was a matter of right. The new Rule 17a, Courts of Military Review Rules of Practice and Procedure (1980), however, states: Oral argument may be heard in the discretion of the Court upon motion by either counsel or upon order by the Court after briefs have been filed in accordance with Rule 16. Motion for oral argument shall be made at the time pleadings are filed or within 5 days after the Government files its reply. 10 M.J. LXXXV. We conclude that this permissive rule does not violate a fundamental right of appellant. A unique sentencing power is vested in the Courts of Military Review under Article 66. However, this Court does not review the exercise of this power except where errors of law occur. United States v. Snelling, 14 M.J. 267 (C.M.A. 1982). This conclusion does not disturb our decision in United States v. Larneard, 3 M.J. 76 (C.M.A. 1977). There we recognized that a military criminal appeal is a “creature ... solely of statutory origin,” conferred neither by the Constitution nor the common law. Id. at 79. “However, once granted, the right of appeal must be attended with safeguards of constitutional due process,” citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Griffin stands for the proposition that appellate review, if granted by the legislature or court rules, cannot be granted in a way that invidiously discriminates. Id. at 17, 76 S.Ct. at 589. An “equal-protection violation” is discrimination that is so unjustifiable as to violate due process. United States v. Larner, 1 M.J. 371, 375 (C.M.A. 1976). See Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). This question of unjustifiable discrimination in violation of due process is not raised, however, unless the Government makes distinctions using “constitutionally suspect classifications” such as “race, religion, or national origin ... or unless there is an encroachment on fundamental constitutional rights like freedom of speech or ... assembly.” See United States v. Means, 10 M.J. 162, 165 (C.M.A. 1981). We cannot conclude that such is the case with this procedural rule of the United States Army Court of Military Review. Turning to Supreme Court precedent, it is important to delineate the holding in Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). There — 179 — the Supreme Court addressed the effect of denying a defense counsel in a criminal trial the opportunity to present closing argument to the factfinder. The Supreme Court held that “a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense” by an “overwhelming weight of authority.” Id. at 859, 95 S.Ct. at 2554 (emphasis added; footnote omitted). As to the specific question in this case, the majority observed, in footnote 13: We deal in this case only with final argument or summation at the conclusion of the evidence in a criminal trial. Nothing said in this opinion is to be understood as implying the existence of a constitutional right to oral argument at any other stage of the trial or appellate process. Id. at 863, 95 S.Ct. at 2555. This, then, is no modification of the historical position taken by the Supreme Court in Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), that “[o]ral argument on appeal is not an essential ingredient of due process and it may be circumscribed as to prisoners where reasonable necessity so dictates.” Id. at 286, 68 S.Ct. at 1060. To the degree that the review of this appellant’s case by the United States Army Court of Military Review may be considered a trial de novo, we still conclude that no analogy to denial of oral argument at the trial level will hold. See United States v. Crider, 22 U.S.C.M.A. 108, 46 C.M.R. 108 (1973); cf. United States v. Roberts, 18 M.J. 192, 194 (C.M.A. 1984). In this' case a verbatim transcript containing all that occurred during the course of this trial was presented to the intermediate court. Included therein was the argument on sentence made by defense counsel below. Furthermore, the intermediate court was presented defense appellate briefs, providing appellant a second opportunity to distill, summarize, and forceably present arguments regarding sentence appropriateness. Unlike United States v. Hullum, 15 M.J. 261 (C.M.A. 1983), this record and accompanying briefs did bring sufficient “facts to the attention of those with the authority to extenuate and mitigate.” Id. at 270 (Fletcher, J., concurring). We conclude that under these facts, no denial of due process occurred when this three-judge panel denied appellant’s request for oral argument. The decision of the United States Army Court of Military Review is affirmed.