United States v. Merritte

BAUM, Chief Judge: Appellant was tried by general court-martial judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, he was convicted of the following offenses: one specification of wrongful possession of methamphetamine; one specification of wrongful introduction onto a military installation of methamphetamine with the intent to distribute; two specifications of wrongful distribution of methamphetamine; two specifications of wrongful introduction onto a military installation of lysergic acid diethylamide with the intent to distribute; and two specifications of wrongful distribution of lysergic acid diethylamide, all in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. 912a. The military judge sentenced Appellant to a bad conduct discharge, confinement for forty months, forfeiture of $555 pay per month, and reduction to E-l. The convening authority approved the sentence as adjudged, but suspended the confinement in excess of 24 months for a period of 48 months from the date of trial, as provided for in the pretrial agreement. Appellant has assigned two errors before this Court: (1) that the period of suspension is unreasonably long, and (2) that this Court lacks jurisdiction because of civilian judges on the Court who have not been appointed in accordance with the Constitution. The second assignment has been rejected numerous times based on United States v. Carpenter, 37 M.J. 291 (CMA 1993), petition for cert. filed, No. 93-676 (U.S. 29 October 1993), and is rejected again for the same reason. The first assignment is the same as that addressed in the recent case of United States v. Leonard, 41 M.J. 900 (C.G.Ct.CrimApp.1995). Here, as in Leonard, no explanation was given by the convening authority for a suspension exceeding the normal 18 months limitation set forth in Section 5-E of the Coast Guard Military Justice Manual, nor do unusual circumstances that would justify such an extended period of suspension appear elsewhere in the record. Just as in Leonard, Appellant agreed to the suspension period in a pretrial agreement and raised no objection to this period of probation at trial. For the same reasons found in Leonard, we find that the Appellant has waived the error. We have reviewed this record in accordance with Article 66, Uniform Code of Military Justice. Upon such review, the findings [520] and sentence are determined to be correct in law and fact and on the basis of the entire record should be approved. Accordingly, the findings of guilty and sentence, as approved and partially suspended below, are affirmed. Judge BRIDGMAN concurs.