United States v. Bryant

12 C.M.A. 133, 12 USCMA 133, 30 C.M.R. 133, 1961 CMA LEXIS 287, 1961 WL 4412

Opinions

Opinion of the Court

GEORGE W. LatimeR, Judge:

On March 9, 1960, pursuant to the accused’s pleas of guilty, a general court-martial sitting at Shaw Air Force Base, South Carolina, convicted him of absence without leave, escape from lawful confinement, and wrongful appropriation of an automobile, violations of Articles 86, 95, and 121, Uniform Code of Military Justice, 10 USC §§ 886, 895, and 921, respectively. The penalty imposed by the court consisted of dishonorable discharge, total forfeitures and confinement at hard labor for fifteen months. The convening authority reduced the period of imprisonment to one year, but otherwise approved the sentence, and thereafter the findings and sentence were affirmed by a board of review in the office of The Judge Advocate General of the Air Force. We granted accused’s petition for review on a single issue concerning the law officer’s instructions on sentence.

The facts pertinent to our inquiry are simple. The accused’s offenses arose out of his escape from confinement on December 15, 1959, his flight in an automobile he appropriated to his use, and his continued absence without authority for some twenty-eight days. After findings had been returned, but before the court closed to deliberate on punishment, evidence was introduced showing that accused had a record of three previous convictions by court-martial. The latest thereof resulted in a sentence that included a six months’ term of confinement, which penalty had been adjudged on December 2, 1959, and was thereafter approved. Thus, it was apparent to the court-martial that at the time of this trial accused had not finished serving the term of imprisonment imposed by the court-martial on the last above-mentioned date. Before closing this court for the purpose of determining sentence, the law officer inquired whether there were any questions, whereupon the following colloquy, which raises the problem here before us, ensued:

“CAPT SNEED (member of court): Yes. What bearing will the past sentence have? I don’t quite know how to phrase this, but the sentence he was serving, what bearing does that have? Does he have to complete that sentence? Is that binding on them, in addition to what this court adjudges?

“LAW OFFICER: The effect of the previous sentence will be a matter for the convening or higher authority to determine. You are entitled to consider this as evidence, the previous convictions. Does the defense request any additional instructions or clarification of that instruction ?

“CAPT SNEED: I might clarify the reason behind that question a little. Should this court decide that possibly a greater sentence than the remaining time he is serving — I am not saying what it will do, of course, it is just a way—

“LAW OFFICER: This court cannot bind the convening authority upon this action as to how the other sentence shall be served. The convening authority, if he so desires, could suspend the execution of the other sentence, depending upon this court’s action. He may order them to run concurrently so they will both be served at the same time.

“DEFENSE COUNSEL: Or he may order them to run separately.

“LAW OFFICER: He could order them to run separately. Lieutenant Guy, do you have any objection?

“TRIAL COUNSEL: I have nothing further.

“DEFENSE COUNSEL: I have nothing further, sir.”

The court then retired for deliberation and returned the sentence set forth hereinbefore.

Appellate defense counsel argue that the accused was prejudiced by the law officer's reply to the court member’s questions for two reasons. First, it is urged that the court-martial, in reliance on the law officer’s advice, may have fixed the period of confinement under the erroneous impression that the convening or other authority might direct the two sentences to run concurrently, when in fact they were precluded from doing so by Air Force Manual 125-2, September 1, 1956, which prescribes as follows:

“When a prisoner serving a sentence to confinement adjudged by court-martial on or after 31 May 1951 is convicted by a court-martial for another offense and sentenced to a term of confinement, the subsequent sentence, upon being ordered into execution, will begin to run as of the date adjudged and will interrupt the running of the prior sentence. After the subsequent sentence has been fully executed, the prisoner will resume the service of any unremitted interrupted sentence to confinement.”

Second, and completely apart from their first avenue of approach, the defense contends the accused was entitled to have his sentences run concurrently as a matter of law. In this connection, they argue that the provisions of Air Force Manual 125-2, supra, are in conflict with the Code and must fall to save the accused from harm. We shall treat with those contentions in reverse order.

Article 57 (b), Uniform Code of Military Justice, 10 USC § 857, provides:

“Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended shall be excluded in computing the service of the term of confinement.”

Appellate defense counsel note that this section is a new addition to military law, Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1089, and point out that the only other provision in the Uniform Code pertaining to interruption of the execution of one sentence for service of another is in Article 14(b), 10 USC § 814. That statute provides that delivery of an accused serving a military sentence to civilian authorities, if followed by conviction in a civil tribunal, will interrupt the court-martial sentence, and that he must serve the remainder of such sentence upon his return to military control.

The defense admits it has found no military precedent that a second sentence to confinement by court-martial will run concurrently from the date adjudged with any existing confinement the accused might then be serving. They urge, however, that the members of Congress, in Article 57 (b), supra, established the date confinement wo.uld begin to run and provided for no other exceptions but the one contained therein dealing with periods of suspension, and the other in Article 14(b), supra. Thus, they reason, Congress intended no other exceptions. Consequently the defense, claiming similarity — save for availability of bail pending appeal in the civilian jurisdiction — between Article 57 (b) and the Federal statute dealing with the same subject, 18 USC § 3568, would have us apply what they denominate the general Federal rule, whereunder two or more sentences to imprisonment run concurrently in the absence of a contrary statute and unless it appears otherwise in the sentence itself. Accordingly, we are importuned to hold that the Air Force directive conflicts with the Code and must be struck down. This we are not at all prepared to do.

The position advocated by appellate defense counsel is not novel. It has been pressed before and uniformly rejected. There is no question but that military sentences to confinement had to be served consecutively prior to the enactment of the Uniform Code of Military Justice. Colonel Winthrop in his Military Law and Precedents, 2d ed, 1920 Reprint, has this to say at page 404:

“Cumulative Sentences, How to Be Framed. Where a person, while under sentence of imprisonment, is again brought to trial and sentenced to a further measure of the same punishment, it is usual in the civil practice for the sentence to specify that the second imprisonment is to begin at the expiration of the first, indicating the date of such expiration. At military law, however, it is not habitual, nor is it necessary, so to specify, or otherwise to direct in terms that the second punishment, (of imprisonment, forfeiture, or suspension,) is to be executed as additional to or continuous upon the first. It is sufficient and almost invariable to frame such punishment in the usual form, as an independent sentence; the mere fact that a similar sentence is pending and being executed at the time determining of itself that the second sentence is to be treated not as concurrent but as a distinct additional penalty of which the execution is to commence upon the completion of the first, i.e. when the same is terminated by its due expiration, or by a remission on the part of the proper superior authority. The second sentence is thus made cumulative simply by operation of law.”

In the Manuals for Courts-Martial, U. S. Army, 1917 and 1921, there are similar provisions which prescribe that when persons subject to military law are undergoing sentences of confinement and they commit offenses for which they are tried and receive similar punishment, the second sentence will be executed upon expiration of the first. This long-established rule was recognized by the Circuit Court of Appeals for the Eighth Circuit in Kirkman v McClaughry, 160 Fed 436 (1908), and more recently by the Court of Appeals for the Tenth Circuit in Mosher v Hudspeth, 123 F2d 401 (1941). We quote from the latter opinion:

“Military prisoners held for punishment under previous sentences are subject to military law and trial by court martial for offenses committed during such imprisonment, and the second sentence will be executed upon the expiration of the first.

“In civil court procedure the practice to incorporate in the judgment that the sentence is to be consecutively or concurrently served is unknown to military judicial procedure.”

This Court also recognized that principle as early as United States v Keith, 1 USCMA 442, 4 CMR 34, decided by a unanimous Court little more than a year after the effective date of the Uniform Code. There we made the following observation:

. . The concurrent sentence, in the sense in which that device is utilized in the administration of criminal law in the civilian community, is entirely without precedent in military procedure.” [1 USCMA at page 448.]

The above-quoted principle is unassailable unless by enacting Article 57 (b) of the Uniform Code, supra, Congress intended to authorize concurrent sentences and permit an accused to escape serving full-time on one sentence because a second one was imposed. We are certain no such result was intended. Significantly, the Code itself shows that Congress realized that the serving of a term could be interrupted, for it specifically stated that a sentence once started could be suspended and when that condition arose the period of suspension should be excluded in computing the service of the time of confinement. Furthermore, in Article 14 of the Code, supra, Congress provided that the military could turn over to civilian authorities a person serving time and, if followed by conviction in a civilian court, the delivery would interrupt execution of the military sentence and the period would be excluded from the term imposed by the court-material.

Appellate defense counsel concede the two exceptions, but insist vigorously that they are exclusive and a term of confinement cannot be interrupted for any other reason. We conclude otherwise, and we are supported in our belief by the recent case of Edwards v Madigan, 281 F2d 73 (CA 9th Cir) (1960). In that case the court answered a similar argument in the following language:

“Appellant cites Article 14(b) of the Uniform Code (10 U.S.C.A. § 814) in support of his argument. That section provides that whenever a military prisoner undergoing a court-martial sentence is delivered under appropriate Army regulations to a civil tribunal and is thereafter convicted, the delivery * * interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for his offense shall * * * be returned to military custody for the completion of his sentence.’ Appellant contends that if this procedure were intended to apply to successive military sentences, Congress would have expressly done so by a provision similar to Article 14(b).

“This argument disregards the above-stated historical differences between the construction given multiple sentences by military as distinguished from civil tribunals. Where a military prisoner had been sentenced by a civil tribunal, Congress deemed it necessary to interrupt the military sentence while the civil sentence was being served, thus avoiding any conflict with the concurrent sentencing of civil courts and preserving intact independent military sentencing. This provision, in fact, had been enacted by Congress in Article 74 of the Articles of War (former Chapter 36, Title 10, U.S.C.A. § 1546, Articles of War, June 4, 1920, 41 Stat 803), and the same basic provision was re-enacted in Article 14(b) of the Uniform Code.”

See also McDonald v Lee, 217 F2d 619 (CA 5th Cir) (1954).

It would seem anomalous to us for Congress to require the interruption of the first sentence if the conviction was in a civilian court but to deny the interruption if the conviction was by court-martial. But, more important, it is worthy of note that Congress did not mention all contingencies which would prevent an accused from being credited with time served. Common sense suggests that if an accused escaped from confinement, his period of service would be interrupted and he would be required to make up the time at the end of the period. Yet, under the defense theory if he was tried and sentenced for that same offense, he might escape serving any additional time. Such a construction is absurd, for it would pay a premium for a misdeed, and a court should not construe a uniform code in such a manner as to bring about that result.

One other absurdity would follow if we adopted the construction pressed on us by the accused. The civilian rule permits the judge to impose concurrent and consecutive sentences, but that authority would be absent in military law. In every instance of multiple sentences, they would, by law, run concurrently and in order for the court-martial to consider properly the appropriate punishment for the second offense, it would need to be instructed on the unexpired term of the first sentence. In no other way could it fix a fair sentence.

That brings us to the Air Force regulations. Section 22 of Title 5, United States Code, provides that Secretaries of Departments may promulgate rules and regulations, and they are presumptively valid unless arbitrary and unreasonable or contrary to or inconsistent with the Code. There is nothing arbitrary and unreasonable in requiring that multiple sentences be served consecutively, and the Code does not state that a sentence once started may not be interrupted by the misdeeds of the accused. As a matter of fact, when it deals with criminal conduct prosecuted in civil jurisdictions, it requires that the accused serve the balance of his military term after serving his civilian sentence. There was a necessity for that enactment, for when officials turn over an accused to civilian jurisdiction, they interfere with the running of the period of confinement and that interference cannot be blamed on the accused. But there is no necessity for Congress to state the common-law rule or the long-established military rule that when the accused interferes himself the period is interrupted.

Certainly, before we could hold reasonably that Congress intended to make such a revolutionary change in procedure which had been uniformly recognized and used for over 150 years, we would require a clearer and more positive expression of Congressional intent than we can find in the Code. In that connection, a reference to the legislative history of the Code shows rather clearly that subsection (b) of Article 57 was enacted to prevent accused persons from languishing in confinement between sentence and date of execution without receiving credit therefor. See Hearings before House Armed Services Committee on H. R. 2498, supra, pages 1089 and 1090. There is a complete absence of anything in the Code or in the Hearings suggesting remotely that Congress was intending to legislate on consecutive and concurrent serving of periods of confinement.

In summation, we restate the following: First, cumulative or consecutive sentences have long been a part of military law. Second, there is no indication Congress intended to engraft concurrent sentences into military justice when it enacted the Code. Rather Article 57 (b) seems to have been designed to insure that an accused received credit against a sentence to confinement for time served from the date the court-martial adjudged sentence instead of some later date when punishment was approved by reviewing authority. Third, service regulations such as Air Force Manual 125-2, supra, are merely designed to preserve the concept of consecutive sentences while implementing the codal requirement that a sentence to confinement begins to run from the date adjudged, and such directives are not inconsistent with Article 57 (b). Last, the Secretaries of the respective services may properly promulgate such regulations. Clearly, then, we must rule adversely to accused on this arm of his assigned error.

The remaining phase of the defense argument need not detain us long. Obviously, under the applicable regulation, the law officer was in error when he apprised the court-martial that the convening authority might order any sentence to confinement to run either concurrently or separately. We note parenthetically, however, that counsel for both parties at trial must shoulder part of the responsibility for the misadviee for, as may be gleaned from the colloquy quoted previously, all legally trained persons involved in this proceeding apparently agreed with the explanation given to the court member. Moreover, in one sense, the information, although ambiguous, would not be incorrect, for it may be that the law officer meant only to indicate that the convening authority could suspend or remit any sentence to confinement, and thus for all practical purposes render the terms to confinement concurrent.

But, however that may be, it is of no consequence. The important thing to be noted here is that the members of the court were forcefully instructed that the effect of any previous sentence was a matter s'olely for the determination of reviewing authorities, and that the court-martial could not bind such authorities in any way. And they were elsewhere repeatedly charged in emphatic language that they alone had the independent responsibility to assess an appropriate punishment, wholly without regard to any outside influence and without reliance on possible mitigating action upon review. Manifestly, then, the court was aware that the only way they could insure that accused would be imprisoned for no longer than the period to which he was already under sentence — if that was their intent— would be to impose no confinement whatever. Obviously, they could not have entertained any such intent for the confinement imposed was nine months longer than the full period assessed at the prior trial. It is, therefore, clear beyond cavil that the court-martial deemed an additional and separate sentence to confinement —which would be served consecutively —to be entirely appropriate. Accordingly, there is no possibility that the accused was prejudiced by the law officer’s advice, and thus we must reject the second argument advanced by the defense.

For the above-stated reasons, the decision of the board of review is affirmed.