United States v. Balboa

33 M.J. 304, 1991 CMA LEXIS 1311, 1991 WL 191362
CourtUnited States Court of Military Appeals
DecidedSeptember 26, 1991
DocketNo. 65,724; CM 8902837
StatusPublished
Cited by20 cases

This text of 33 M.J. 304 (United States v. Balboa) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Balboa, 33 M.J. 304, 1991 CMA LEXIS 1311, 1991 WL 191362 (cma 1991).

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

During September 1989, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Lewis, Washington. Consistent with his pleas, he was found guilty of willfully disobeying a written order of a superior offi[305]*305cer, consensual sodomy, assault consummated by a battery, obstruction of justice, communicating a threat, larceny of telephone services valued at over $100.00, and committing an indecent act, in violation of Articles 90, 125, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 890, 925, 928, and 934, respectively. Appellant was sentenced to a bad-conduct discharge, confinement for 12 months and 68 days, and total forfeitures. The convening authority approved the sentence but reduced the forfeitures to $699.00 pay per month for 14 months. On August 27, 1990, the Court of Military Review affirmed the findings and sentence in an unpublished opinion.

We granted review of the following issue:

WHETHER THE MILITARY JUDGE’S INSTRUCTION TO THE COURT MEMBERS THAT APPELLANT WOULD BE CREDITED WITH 68 DAYS CONFINEMENT BY AUTHORITIES AT THE CORRECTIONAL FACILITY MISLED THE MEMBERS AND RESULTED IN PLAIN ERROR WHERE THE PANEL SENTENCED APPELLANT TO “68 DAYS PLUS 12 MONTHS” CONFINEMENT.

We hold that no error occurred in this case as a result of the unobjected-to instructions of the military judge on appellant’s pretrial-confinement credit. See RCM 1001(b)(1), Manual for Courts-Martial, United States, 1984. See also RCM 1005(f).

On July 8, 1989, appellant was placed in pretrial confinement and remained there for 68 days until his trial concluded on September 14, 1989. Prior to the sentencing phase of this court-martial, trial defense counsel had agreed to the military judge’s proposed sentencing instructions. The military judge then gave this instruction:

Now, in determining an appropriate sentence in this case, you should consider the fact that this accused has spent sixty-eight days in pretrial confinement. In this connection, you should also realize that if you do adjudge confinement as part of your sentence, the sixty-eight days spent in pretrial confinement mil be credited against any sentence to confinement that you may adjudge. This credit mil be given by the authorities at the correctional facility where the accused is sent to serve his confinement and it will be credited on a day-for-day basis.

(Emphasis added.)

Later in the instructions, the military judge told the members:

Now, in selecting a sentence, you should consider all matters in extenuation and mitigation, as well as those in aggravation. Thus, all the evidence you have heard in this case is relevant on the subject of sentencing, and you should consider evidence admitted as to the offenses of which the accused stands convicted, plus his age, which is currently twenty; the family difficulties he has experienced which relate to the health and current situation of his parents and family back in Texas. Consider the duration of his pretrial confinement; his GT score which is 102, which is in the average range; his education, which includes the completion of high school and service schools reflected in his personnel records____

Trial defense counsel “ha[d] no objections” to either of these instructions. The members then sentenced appellant: “To forfeit all pay and allowances, to be confined for 68 days, plus 12 months, to be discharged from the service with a bad-conduct discharge.”

Appellant’s complaint in this case is that his sentence to 12 months’ and 68 days’ confinement was imposed unlawfully. See generally United States v. Dukes, 5 MJ 71, 73 (CMA 1978). He initially contends that the military judge went too far in informing the members of his court-martial that he would later receive 68 days’ administrative credit on his sentence for his pretrial confinement. Cf. United States v. Davidson, 14 MJ 81 (CMA 1982). See generally [306]*306United States v. Griffin, 25 MJ 423 (CMA), cert. denied, 487 U.S. 1206, 108 S.Ct. 2849, 101 L.Ed.2d 886 (1988). In addition, he contends that the members, contrary to the judge’s instructions and a Manual rule, imposed “an excessive sentence in reliance upon possible mitigating action by the convening or higher authority.” RCM 1005(e)(3). See United States v. Wilson, 28 MJ 48, 51 (CMA 1989); United States v. Warner, 25 MJ 64 (CMA 1987). Finally, he argues that the instructions as a whole were inadequate and permitted the members to nullify this Court’s holding in United States v. Allen, 17 MJ 126 (CMA 1984).

We first will address appellant’s claim that the judge erred in telling the members of the automatic sentence credit for pretrial confinement. See para. 2-37, Military Judge’s Benchbook at 2-43 (Dept. of the Army Pamphlet 27-9 (Change 2, 15 Oct.1986)). Clearly, such an instruction is not precluded by the lead opinion in United States v. Davidson, supra, a case itself decided before the automatic sentence-credit holding in United States v. Allen, supra. See United States v. Davidson, supra at 87 (Everett, C.J., concurring in the result). Moreover, the language of RCM 1001(b)(1)1 permitting evidence of “the duration and nature of any pretrial restraint” is broad enough to include this credit information, at least if such language is construed in the interests of reliable and truthful sentencing. See RCM 1001(b)(4). See generally Wasman v. United States, 468 U.S. 559, 563-64, 104 S.Ct. 3217, 3220, 82 L.Ed.2d 424 (1984); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Finally, the administrative ramifications of pretrial confinement were both certain and immediate and thus were not collateral or inadmissible matters within the meaning of Mil.R.Evid. 403, Manual, supra. See United States v. Henderson, 29 MJ 221, 223 (CMA 1989).

Appellant’s second argument concerning the illegality of the members’ action is equally unpersuasive. First, we have grave doubts whether a definite and certain sentence reduction by military prison authorities for pretrial confinement fits within the proscription of RCM 1005(e)(3).2 If there was some doubt in this regard, it was incumbent on appellant to request that the military judge rule on this question and fashion an express instruction on this matter. See RCM 1005(f).3 Moreover, one cannot seriously contend that the members imposed an excessive sentence in this case within the meaning of RCM 1005(e)(3). The maximum punishment authorized for [307]*307appellant’s offenses included a dishonorable discharge and 28 years’ and 6 months’ confinement. The actually imposed sentence, however, was a bad-conduct discharge and 1 year and 68 days’ confinement. A claim of sentence excessiveness in this light is not well taken.

Finally, we recognize that the substance of appellant’s arguments in this case is that the military judge’s instructions as a whole nullified or permitted the members to nullify the decision of this Court in United States v. Allen, supra. See generally United States v. Soriano, 20 MJ 337, 342-43 (CMA 1985).

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Cite This Page — Counsel Stack

Bluebook (online)
33 M.J. 304, 1991 CMA LEXIS 1311, 1991 WL 191362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-balboa-cma-1991.