United States v. Dotson

6 M.J. 864, 1979 CMR LEXIS 767
CourtU S Coast Guard Court of Military Review
DecidedFebruary 16, 1979
DocketCGCMS 23428; Docket No. 817
StatusPublished
Cited by2 cases

This text of 6 M.J. 864 (United States v. Dotson) 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. Dotson, 6 M.J. 864, 1979 CMR LEXIS 767 (cgcomilrev 1979).

Opinion

OPINION

MORGAN, Chief Judge:

Seaman Apprentice Dotson was tried by special court-martial on 24 April 1978. He elected trial by military judge alone and pleaded guilty to four offenses of unauthorized absence for periods of 18 days, 1 day, 21 days and 5 days, respectively, in violation [865]*865of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 and one offense of missing movement of his ship through design in violation of Article 87, U.C.M.J., 10 U.S.C. § 887. The military judge found the accused guilty pursuant to his guilty pleas and sentenced him to be confined at hard labor for six months, to forfeit $265.00 per month for six months, to be reduced to pay grade E-l and to be discharged from the service with a bad conduct discharge. The findings and sentence were approved by the convening authority. The supervisory authority reduced the confinement at hard labor to four months but otherwise approved the findings and sentence.

Appellate defense counsel has raised several issues respecting the propriety of the bad conduct discharge as well as the adequacy of the district legal officer’s review and additionally has asserted that trial defense counsel was not served with a copy of the review and afforded an opportunity to reply as required by U. S. v. Goode, 1 M.J. 3 (C.M.A.1975). In reply to this latter claim of error the Government concedes that there was no compliance with Goode but contends that the accused was not thereby prejudiced.

In U. S. v. Goode, supra, the Court of Military Appeals ordered:

“ * * * [T]hat on and after May 15, 1975, a copy of the written review required by Article 61 or 65(b), UCMJ, 10 U.S.C. § 861 or 865(b), be served on counsel for the accused with an opportunity to correct or challenge any matter he deems erroneous, inadequate or misleading, or on which he otherwise wishes to comment. Proof of such service, together with any such correction, challenge or comment which counsel may make, shall be made a part of the record of proceedings.” 1 M.J. 6

This requirement is incorporated in Section 510-2(d) of the Coast Guard Military Justice Manual, CG-488.

The issue of whether failure to comply with the mandate of U. S. v. Goode should require reversal in the absence of prejudice to the accused was argued before the Court of Military Appeals in U. S. v. Hill, 3 M.J. 295 (C.M.A.1977). Addressing that issue the Court said:

“The requirement promulgated by this Court in Goode was predicated on a desire to eliminate delays encountered in claims of error in post-trial reviews and the exhaustion of appellate resources when such errors could easily and expeditiously be resolved prior to the convening and supervisory authorities’ actions. Indeed, this Court in United States v. Roop, 16 U.S.C.M.A. 612, 615, 37 C.M.R. 232, 235 (1967), recognized:
‘[Tjhat as a matter of fairness and eventual expedience, the uniformed accused should be given an opportunity in each and every instance to rebut matters seemingly adverse to him as they appear in the staff judge advocate’s review. The mere fact that upon appeal harm to the accused may be found nonexistent, in no sense lessens the obligation to see that he receives those benefits that are rightly his.’
“The present case demonstrates the delays that can be encountered and appellate resources that can be expended when the requirements of Goode are ignored. Accordingly, we conclude that the purpose of Goode can be effected only if we insist upon compliance therewith.” 3 M.J. 296, 297.

Discussing the Goode requirement in U. S. v. Iverson, 5 M.J. 440, 444 (C.M.A.1978) the Court said:

“ * * * [W]e do not believe that a failure to permit trial defense counsel to fulfill his or her role under Goode and Palenius [U. S. v. Palenius, 2 M.J. 86 (C.M.A.1977)] can be dismissed as nonprejudicial. In United States v. Hill, supra, we declined to test for prejudice when no counsel had had the opportunity to respond to the staff judge advocate’s review.”

These pronouncements from the Court of Military Appeals lead us to the conclusion that failure of a record to demonstrate that counsel for an accused was served with a copy of the staff judge advocate’s review [866]*866and afforded an opportunity to reply as required by U. S. v. Goode, supra, is, alone, grounds for reversal. Additionally, in this case, there are other deficiencies in the district legal officer’s review.

Specification 1 of Charge I alleges unauthorized absence from USCGC MUNRO (WHEC 724) from 2 until 20 January 1978. The specification of Charge II alleges missing the movement of USCGC MUNRO (WHEC 724) through design on 13 January 1978. These offenses were multiplicious for sentence purposes. U. S. v. Bridges, 9 U.S.C.M.A. 121, 25 C.M.R. 383 (1958). Yet the military judge did not indicate that he had considered those offenses as one in arriving at the sentence nor did the district legal officer advise the supervisory authority of the multiplicity.

The sentence in this case was adjudged by the military judge and it may be presumed that he recognized the multiplicity of the offenses and treated them as one for sentencing. U. S. v. Stein, 20 U.S.C.M.A. 518, 43 C.M.R. 358 (1971); U. S. v. Worline, 50 C.M.R. 47 (N.C.M.R.1974). But as the Court of Military Appeals recommended in U. S. v. Stein, at 20 U.S.C.M.A. 519, 43 C.M.R. 359:

“Military judges and trial counsel could forestall controversy in this area by recording their views on sentencing multiplicity and we strongly urge that they do so, particularly in special .courts-martial.”

Similarly, while a staff judge advocate’s failure to provide appropriate advice respecting multiplicious offenses may not require corrective action in all cases, the inclusion of such advice is clearly the better practice and generally will forestall controversy. See U. S. v. Worline, supra; U. S. v. Love, 46 C.M.R. 741 (A.C.M.R.1972); U. S. v. Cashwell, 45 C.M.R. 748 (A.C.M.R.1972); U. S. v. Westcott, 48 C.M.R. 237 (A.C.M.R.1973); U. S. v. Kinion, 5 M.J. 930 (N.C.M.R.1978); U. S. v. Watkins, 2 M.J. 1276 (C.G.C.M.R.1976).

The accused testified under oath re-, specting the sentence. He asserted that he would not return to duty aboard CGC MUNRO under any circumstances, expressed his dissatisfaction with the Coast Guard in general and adamantly persisted in his desire for a bad conduct discharge (R-15-19). The military judge fulfilled the accused’s request but then attempted to explain the rationale underlying his announced sentence as follows:

“I’ve imposed the maximum sentence on you. In doing so — I’m doing this because this is about as flagrant, the flaunting of the law in respect to the offenses that you have been convicted of and plead guilty to, as I have ever seen.

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

Related

United States v. Friedman
14 M.J. 865 (U S Coast Guard Court of Military Review, 1982)
United States v. Dotson
9 M.J. 542 (U S Coast Guard Court of Military Review, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
6 M.J. 864, 1979 CMR LEXIS 767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dotson-cgcomilrev-1979.