United States v. Breseman

21 M.J. 943
CourtU S Coast Guard Court of Military Review
DecidedMarch 17, 1986
DocketCGCM 9986; Docket No. 874
StatusPublished
Cited by5 cases

This text of 21 M.J. 943 (United States v. Breseman) is published on Counsel Stack Legal Research, covering U S Coast Guard 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. Breseman, 21 M.J. 943 (cgcomilrev 1986).

Opinion

DECISION

BAUM, Chief Judge:

Appellant, a Coast Guard Commander, was tried by a general court-martial composed of officer members and, contrary to his pleas, was convicted of six offenses of conduct unbecoming an officer and a gentleman with two subordinate enlisted women, in violation of Article 133, UCMJ, 10 U.S.C. § 933. His sentence to be dismissed from the service has been approved by the convening authority and the case is now Cnm-f -Pr... ..Qview pursuant to [944]*944Article 66, UCMJ, 10 U.S.C. § 866. Fourteen errors have been assigned by appellate defense counsel. All are rejected, save assignment of error VI, which questions the sentence action of the convening authority and the adequacy of the post trial legal advice given him with respect to “the proper standards for reassessment of the sentence when findings are disapproved after sentencing.”1 Appellate Government Counsel does not challenge the substance of appellant’s assignment. Instead, citing U.S. v. Goode, 1 M.J. 3 (C.M.A.1975) and U.S. v. Reed, 6 M.J. 860 (C.G.C.M.R.1979), the Government contends that the defense counsel’s failure to raise the issue in response to the legal officer’s review constitutes waiver of any error in this regard. While normally such is the result of a failure to challenge a defect or error in the staff judge advocate’s review, U.S. v. Goode, supra, waiver has been rejected when “abnormal” circumstances warrant such action, U.S. v. Moles, 10 M.J. 154 (C.M.A.1981); U.S. v. Morrison, 3 M.J. 408 (C.M.A.1977); U.S. v. Barnes, 3 M.J. 406 (C.M.A.1977). Included within such situations are instances when waiver could result in a “manifest miscarriage of justice,” U.S. v. Clevidence, 11 M.J. 661 (C.G.C.M.R. 1981); U.S. v. Myhrberg, 2 M.J. 534 (A.C.M.R.1976). “or would otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.” U.S. v. Berry, 2 M.J. 576, 579 (A.C.M.R.1977), petition for review by USCMA denied 3 M.J. 339.

Here, while the authenticated record of trial was undergoing review by the district legal officer but before that review had been completed and served on defense counsel, the individual civilian defense attorney suddenly and unexpectedly withdrew as counsel. At about the same time, detailed military counsel left active duty and ceased representing appellant. This resulted in the appointment of a substitute defense counsel with no prior involvement in the case. Substitute counsel was forced to thoroughly familiarize himself with a voluminous record and prepare a response to the seventy page district legal officer’s review in a very short period of time. Counsel did remarkably well in this endeavor, producing within the allotted time a prodigious response which detailed numerous assigned errors at every stage of the proceeding. Recognizing, however, that his unfamiliarity with the case prior to the post trial assignment could result in oversights, counsel attempted to foreclose application of the waiver doctrine with the following statement:

“Although it is [the] usual rule that errors in the post-trial review are waived if they are not noted by defense counsel, that rule is tempered in case law by various factors, such as the inexperience of defense counsel. In this case, substitute defense counsel was not present at trial and has had limited access to detailed defense counsel and individual civilian counsel and background documents that trial defense counsel would consult for trial preparation. In addition, a number of documents that have been requested in post-trial discovery have not yet been provided to me. Finally, a number of appellate exhibits are redacted from the record, one is missing, and one redacted appellate exhibit has not yet been provided to substitute defense counsel. Because of these facts, errors in the post-trial review that are not noted herein, are expressly not waived as future appellate issues.”

We believe the facts of this case are sufficiently “abnormal” to justify our finding that the issue of sentence reassessment, raised for the first time before this Court, has not been waived. Accordingly, we will consider the assignment on its merits.

[945]*945The legal officer in his review recommended modification of certain findings of guilty based on his evaluation of the evidence. The convening authority followed these recommendations, which in the words of appellate defense counsel, “resulted in approval of findings of: unbecoming conduct by assault consummated by a battery rather than indecent assault in specifications 1 and 3; and unbecoming conduct by improper acts rather than indecent assault in specification 6. As a result of this action the maximum authorized sentence to confinement at hard labor was reduced from 20 years, R at 1027, to 7 years.” (footnote omitted).

Despite this modification of the findings and reduction of the maximum authorized punishment, the convening authority was not advised by the legal officer of any need for reassessment of the sentence, nor did the convening authority indicate in his action that such a sentence re-evaluation had been accomplished. We agree with appellant that a failure by the convening authority to reassess the sentence and a failure of the legal officer to properly advise the convening authority in this regard constitutes error. U.S. v. Dowell, 15 M.J. 351 (C.M.A.1983); U.S. v. Iosbaker, 17 M.J. 1097 (A.F.C.M.R.1984); U.S. v. Hagen, 9 M.J. 659 (N.C.M.R.1980); U.S. v. Johnson, 8 M.J. 634 (A.C.M.R.1979); U.S. v. Reed, supra.

Appellant argues that these deficiencies require the record’s return for correction at either a rehearing or by the convening authority’s reassessing the sentence, with proper advice. Either of these actions could, of course, be taken, but we believe this Court is fully capable of correcting such errors by reassessment of the sentence at this level, applying the appropriate standards in this regard. Those standards were most recently set forth in U.S. v. Suzuki, 20 M.J. 248 (C.M.A.1985) by Chief Judge Everett, who said:

We start from the premise that, when a Court of Military Review reassesses a sentence because of prejudicial error, its task differs from that which it performs in the ordinary review of a case. Under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866, the Court of Military Review must assure that the sentence adjudged is appropriate for the offenses of which the accused has been convicted; and, if the sentence is excessive, it must reduce the sentence to make it appropriate. However, when prejudicial error has occurred in a trial, not only must the Court of Military Review assure that the sentence is appropriate in relation to the affirmed findings of guilty, but also it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed. Only in this way can the requirements of Article 59(a), UCMJ, 10 U.S.C. § 859(a), be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51-52, UCMJ, 10 U.S.C.

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