United States v. Dedert

54 M.J. 904, 2001 CCA LEXIS 73, 2001 WL 314528
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMarch 28, 2001
DocketNMCM 9900629
StatusPublished
Cited by6 cases

This text of 54 M.J. 904 (United States v. Dedert) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal 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. Dedert, 54 M.J. 904, 2001 CCA LEXIS 73, 2001 WL 314528 (N.M. 2001).

Opinion

DORMAN, Senior Judge:

The appellant was tried by a general court-martial composed of officer and enlisted members. Following mixed pleas, the military judge convicted the appellant, consistent with his pleas, of a breach of the peace, assault consummated by a battery, and wrongful use of another’s military identification card. Contrary to his pleas the members found the appellant guilty of language the appellant had excepted from his guilty pleas concerning the breach of the peace and the assault consummated by a battery1, and of an additional assault consummated by a battery. The appellant’s offenses violated Articles 116, 128, and 134, Uniform Code of [906]*906Military Justice, 10 U.S.C. §§ 916, 928, and 934. The approved sentence includes confinement for two years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge.2

We have carefully reviewed the record of trial, the appellant’s two assignments of error, and the Government’s response. We have also considered the excellent oral arguments presented by both appellate counsel on 1 March 2001 at the Naval Justice School in Newport, Rhode Island. While we strongly discourage the type of post-trial involvement engaged in by the trial counsel in this case, following our review, we conclude that no error was committed in the post-trial processing of this case. We however, do agree with the appellant that the adjudged and approved sentence was excessive. Following our corrective action, we conclude that the findings and sentence, as modified herein, are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Facts

After trial the appellant put together an extensive clemency package that he submitted to the convening authority [CA]. The clemency package contained 38 enclosures. It was submitted on 28 December 1998. The request for clemency was prepared by the appellant’s trial defense counsel [TDC] and was addressed to the CA There was no “via” block contained in the TDC’s letter, submitted in the standard naval letter format. In the request for clemency, the appellant requested that his dishonorable discharge be mitigated to a bad-conduct discharge and that confinement in excess of 12 months be suspended.

On 25 January 1999 the trial counsel [TC] in this case sent a letter to the CA. It, too, was not addressed “via” anyone. The subject of this letter was the appellant’s clemency request. While much of the information contained in the letter is factual, it also contains the TC’s personal opinion about the nature of the appellant’s crimes, characterizing them as “brutal.” He also offered his apparently unsolicited opinion concerning the appellant’s request for clemency. Specifically, the TC told the CA that:

The defense’s request for clemency is without merit. The accused has clearly demonstrated his violent nature and the assaults in this case were both brutal and unprovoked. More importantly, a general court-martial composed of both officer and enlisted members listened to all the evidence in this case. They believed their sentence to be appropriate and just. I concur.

TC letter of 25 Jan 1999 at 2.

On 2 February 1999 the staff judge advocate [SJA] prepared his recommendation [SJAR] to the CA. He attached both the clemency request and the TC’s letter as enclosures to the SJAR. In the body of the SJAR the SJA made these comments concerning the two enclosures:

In enclosure (1), the Defense Counsel requests that you suspend confinement in excess of 12 months and that you approve a bad-conduct discharge instead of the adjudged dishonorable discharge. In support of this request, the Defense Counsel includes 38 enclosures containing favorable letters from former Officers in Charge, family, and friends. You must carefully consider these matters prior to taking action in this case. Enel (2) contains the Trial Counsel’s rebuttal to the clemency request. He draws your attention to the accused’s civilian conviction for an assault with a pipe on another person which occurred after the unprovoked assaults for which he was found guilty at this court-martial.

Staff Judge Advocate’s Recommendation of 2 Feb 1999 at 2-3. The SJA then went on to recommend to the CA that no clemency be granted in this case, and that the CA approve the adjudged sentence. The SJAR was served on the TDC on 4 February 1999. On that same day the TDC executed a First [907]*907Endorsement on the Receipt For A Copy Of The SJAR, indicating that he did not desire to submit matters pursuant to Rule for Courts-Martial 1106, Manual for Courts-Martial, United States (1998 ed.). On 16 February 1999, the CA took action in this case. Following the advice contained in the SJAR, the CA approved the sentence as adjudged.

Post-Trial Error

In his first assignment of error the appellant seeks a new SJAR and CA’s Action. He seeks this relief because he believes that it was prejudicial error for the SJA to forward the TC’s letter to the CA as part of the SJAR. The appellant asserts that Article 6(c), UCMJ, 10 U.S.C. § 806(c), and R.C.M. 1106(b) prohibit the TC’s post-trial involvement in this case. Those rules prohibit anyone who acted as the TC in a case from later acting as the SJA in the same case. Appellant’s Brief of 18 Aug 2000 at 3. During oral argument, the appellant modified his argument to suggest that the TC’s involvement in this ease amounted to error per se. While we find the TC’s post-trial meddling in this case to be troubling, we do not find prejudicial error.

Central to this case is the fact that the appellant did not object to or comment upon matters contained in the SJAR after it was served upon him and prior to the date of the CA’s action. Thus any error regarding the SJAR was waived, unless that error rises to the level of plain error. United States v. Kho, 54 M.J. 63, 65 (2000); R.C.M. 1106(f)(6). Plain error in this context is quantitatively different, however, than plain error that occurs during trial. When plain error occurs during the trial itself, we will normally afford relief only where there has been error, the error was obvious, and the error materially prejudiced a substantial right of the appellant. United States v. Powell, 49 M.J. 460, 463-65 (1998). When plain error occurs in the posttrial processing of a case, however, we will afford relief where there has been error, the error was obvious, and where the appellant makes a colorable showing of possible prejudice. Kho, 54 M.J. at 65 (citing United States v. Wheelus, 49 M.J. 283, 289 (1998)). Applying this standard of review to an alleged post-trial error that was not noted prior to the CA’s action, we decline to grant relief.

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Cite This Page — Counsel Stack

Bluebook (online)
54 M.J. 904, 2001 CCA LEXIS 73, 2001 WL 314528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dedert-nmcca-2001.