United States v. Bates

1 M.J. 841
CourtU S Air Force Court of Military Review
DecidedApril 12, 1976
DocketACM 21986
StatusPublished
Cited by11 cases

This text of 1 M.J. 841 (United States v. Bates) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bates, 1 M.J. 841 (usafctmilrev 1976).

Opinion

DECISION

SANDERS, Judge:

Tried by general court-martial, the accused was found guilty, pursuant to his pleas, of one offense of attempted larceny and one offense of housebreaking, in violation of Articles 80 and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 930. The approved sentence provides for a bad conduct discharge, confinement at hard labor for six months, forfeiture of $240.00 per month for six months and reduction to airman basic. The 3320th Retraining Group, Lowry Air Force Base, Colorado, was designated as the place of confinement for immediate entry into the retraining program.

Two assertions of error have been advanced for our consideration by appellate defense counsel. Only the one which alleges that

THE MILITARY JUDGE IMPROPERLY PERMITTED THE COURT TO INCREASE THE SEVERITY OF ITS SENTENCE

warrants discussion on our part; the other lacks merit. An additional matter concerning the trial counsel’s argument on sentence also requires our evaluation.

Following the closed session for deliberation on sentence, the court reopened and the president stated the court had arrived at its sentence. The military judge then requested to look over the sentence worksheet before the court announced the sentence. After looking at the worksheet1, the following transpired:

MJ: I instructed the court, remember, that if you are going to give a forfeiture [842]*842of less than all pay and allowances you must indicate by dollars and cents, and also per month for a number of months. Now, the court has indicated a forfeiture of two-thirds of the base pay, period. For how long? What was the sentence? What was the intent of the court? To forfeit two-thirds of the base pay for one month or to forfeit two-thirds of the base pay per month for a certain period of time? That is what I am asking.
PRES: That was for the duration of the incarceration, sir.
MJ: Then you say to perform hard labor. Is this hard labor without confinement? Remember, I told you that. .
PRES: We also wrote it in at the top of the sheet, sir.
MJ: You have number 5 which says to perform hard labor. That section contemplates performing hard labor without confinement. Number 6 is to be confined at hard labor. Is it the intent of the court to perform hard labor for 180 days? Remember that I told you that hard labor without confinement shall not be adjudged in excess of three months. Was it the intent of the court that this be hard labor without confinement?
PRES: No, sir.
MJ: Confinement at hard labor?
PRES: Yes, sir, for a period of six months.
MJ: I am going to have a recess and have a 39(a) session out of the hearing of the court. So the court will be recessed for whatever time it takes. Court is recessed.

During the Article 39(a) session, the military judge gave counsel the opportunity to examine the worksheet and voice their positions on the matter. Defense counsel objected to any reconsideration of the sentence by the court and opined that the sentence included only two-thirds forfeiture for one month and hard labor for 180 days. The military judge indicated he would attempt to clarify the true intent of the court and determine if the apparent misunderstanding was only as to the appropriate language to be used to convey the court’s intended sentence. No instructions were requested by either side.

When the court opened, the military judge painstakingly went through each element of the sentence as was finally announced by the court. He asked each court member to signal if there was any disagreement as to his understanding of what was intended. No disagreement or indication of misunderstanding was signaled by any court member. Then the military judge had the president write out the sentence on a new worksheet giving him detailed instructions as to how to do it. Alas, the president failed once more to include all the necessary language by leaving out the words “per month” as applied to the forfeiture. Finally getting this rectified and again assuring that this was the intent of each court member, the military judge had the president announce the sentence in open session. Unfortunately, the president then apparently experienced difficulty in reading his own words and in his oral announcement, initially left out the words “per month” in announcing the forfeitures. This was caught and corrected on the spot by the military judge. The sentence finally announced, the court adjourned.

Initially, we commend the military judge for the procedure he followed in handling this confusing, perhaps exasperating, matter. Too, we have no doubt that the sentence as finally announced was that intended and initially determined by the court. The necessity for reconsideration of the sentence did not arise under the circumstances. Rather, the situation involved confusion on the president’s part as to the proper language necessary to convey the court’s determination. United States v. Robinson, 4 U.S.C.M.A. 12, 15 C.M.R. 12 (1954). The remedial action taken by the military judge clearly came within the provisions of paragraph 76c, Manual for Courts-Martial, United States, 1969 (Rev.). United States v. Liberator, 14 U.S.C.M.A. [843]*843499, 34 C.M.R. 279 (1964); United States v. Robinson, supra.

Unlike the situation in United States v. Kuzilik, 49 C.M.R. 525 (A.F.C.M.R.1974), cited by appellate defense counsel, there was no private communication between the court and the military judge. Rather, everything that transpired was on the record. And, counsel was given an opportunity to view the original sentence worksheet and to voice their positions on the matter. Further, the court did not go into a closed session for further deliberations on the sentence. In essence, what was involved was nothing more than a change in phraseology necessary to express truly the sentence actually agreed upon. United States v. Robinson, supra. That the sentence as originally written by the president was the product of his inability to express the intent of the court is shown by his seemingly persistent inability to follow the meticulous and repeated instructions and advice of the military judge. However, because of the procedure followed by the military judge, the confusion on the part of the president was rectified and the sentence as originally determined by the court was properly announced.

In view of the recent decision of the Court of Military Appeals in United States v. Mosely, 1 M.J. 350, decided 19 March 1976, we are constrained to find error in the trial counsel’s closing argument on sentence. In his remarks, trial counsel urged, inter alia, that the court members

consider the need to deter other people from committing similar offenses. Consider the need to discourage others, to let others know this type of conduct cannot be condoned.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Walker
9 M.J. 892 (U S Air Force Court of Military Review, 1980)
United States v. White
3 M.J. 828 (U S Air Force Court of Military Review, 1977)
United States v. Wallace
2 M.J. 1087 (U.S. Army Court of Military Review, 1976)
United States v. Miller
2 M.J. 301 (U S Air Force Court of Military Review, 1976)
United States v. Wilson
2 M.J. 683 (U S Air Force Court of Military Review, 1976)
United States v. Thomas
2 M.J. 263 (U S Air Force Court of Military Review, 1976)
United States v. Credit
2 M.J. 631 (U S Air Force Court of Military Review, 1976)
United States v. Porter
1 M.J. 882 (U S Air Force Court of Military Review, 1976)
United States v. Griffin
1 M.J. 884 (U S Air Force Court of Military Review, 1976)
United States v. Adams
1 M.J. 877 (U S Air Force Court of Military Review, 1976)
United States v. Culberson
1 M.J. 1181 (U S Air Force Court of Military Review, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
1 M.J. 841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bates-usafctmilrev-1976.