United States v. Harvey

12 M.J. 626, 1981 CMR LEXIS 610
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedOctober 30, 1981
DocketNMCM 81 0386
StatusPublished
Cited by6 cases

This text of 12 M.J. 626 (United States v. Harvey) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Harvey, 12 M.J. 626, 1981 CMR LEXIS 610 (usnmcmilrev 1981).

Opinions

MAY, Judge:

Appellant was convicted, following the entry of his pleas, at a special court-martial by military judge alone, of wrongful sale of .487 grams of cocaine, wrongful sale of .740 grams of cocaine, and wrongful sale [627]*627of .987 grams of cocaine on three separate occasions and dates. These offenses represented three of the original nine specifications alleging violation of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892, referred to trial. Under the terms of a pretrial agreement, the remaining six specifications would be withdrawn by the government upon the receipt of provident pleas of guilty to the above-named offenses, which represented specifications 2, 5, and 8, respectively, under the Charge.

Following arraignment at trial, appellant entered pleas of not guilty to specifications 1, 3, 4, 5, 6, 7, and 9, and guilty “pleas only to specifications 2 and 8. (R.7). The trial continued with the providence inquiry conducted by the military judge with the accused in the presence of both counsel. During this inquiry and the accompanying inquiry related to the pretrial agreement, the military judge proceeded as if a plea of guilty had also been entered to specification 5. At the conclusion of the providence inquiry, the military judge found the accused guilty of specifications 2, 5 and 8, although a guilty plea had not been entered as to specification 5. (R.22). Appellant was sentenced to a bad-conduct discharge, confinement at hard labor for 3 months, and reduction to pay grade E-l.

The convening authority in taking his initial action on the case, approved the findings of guilty to specifications 2, 5, and 8, and the sentence, with the exception that he approved only so much of the sentence as provided for confinement at hard labor for 53 days, reduction to pay grade E-l, and a bad-conduct discharge. Subsequent to that initial action and the advisement of the staff judge advocate in his posttrial review regarding the obvious defect in the proceedings regarding specification 5, the convening authority modified his initial action. That modification resulted in the convening authority’s disapproval of the findings of guilty as to specification 5 and a reassessment of the sentence as initially approved. The convening authority reassessed the sentence in relation to his disapproval action and approved only so much of the sentence as provided for confinement at hard labor for 53 days, and a bad-conduct discharge.

Trial defense counsel in his response to the post-trial review, see United States v. Goode, 1 M.J. 3 (C.M.A.1975), contended that the sentence as finally approved did not represent a meaningful reassessment of the sentence, as the disapproval action had reduced significantly the degree of criminality meriting punishment. Citing the lack of any evidence in aggravation and the introduction of significant extenuation and mitigation evidence, trial defense counsel requested disapproval, suspension, or commutation of the punitive discharge. The supervisory authority apparently disagreed, as the findings and sentence as modified and approved by the convening authority were approved and forwarded to this Court for review in accordance with Article 65(b), UCMJ, 10 U.S.C. § 865(b).

Appellate defense counsel assigns error emanating from the failure to meaningfully reassess the sentence of appellant. Citing the relatively small amount of drugs involved in the three alleged offenses and the net amount involved in the findings as finally approved, appellate defense counsel offers the possibility that if appellant had been convicted of only two specifications of sale of a relatively small amount of drugs at trial, the military judge may not have awarded a bad-conduct discharge. Citing United States v. Gordon, 18 U.S.C.M.A. 611, 40 C.M.R. 323 (1969), and United States v. Britton, No. 80 1859 (N.C.M.R. 6 February 1981), appellate defense counsel offers that the appropriate action for this Court is to set aside the sentence and order a rehearing, or alternatively, to reassess the sentence, disapproving the punitive discharge. We disagree.

The issue of which forum is most appropriate when a sentence is disapproved has been the subject of much appellate discussion. See Gordon, supra; United States v. Stene, 7 U.S.C.M.A. 277, 22 C.M.R. 67 (1956); United States v. Voorhees, 4 U.S.C.M.A. 509, 16 C.M.R. 83 (1954); United States v. Usry, 9 M.J. 701 (N.C.M.R.1980). [628]*628However, our analysis of the issues presented in this case make an addressal of the proper forum for curative action on this sentence unnecessary.

The accused was convicted at trial of three separate acts involving the sale of a prohibited drug violative of a general regulation. The convening authority correctly disapproved specification 5’s guilty finding. He correctly reconsidered his initial action on the sentence. Paragraph 89b, MCM. Reassessment of sentence does not mandate reduction. See United States v. Martinez, 25 C.M.R. 578 (A.B.R.1957).

Arguably, the trial judge sitting alone in the case may not have sentenced the appellant to a punitive discharge if only two convictions for the sale of prohibited drugs were before the court. Arguably, the trial judge may have sentenced the accused to a punitive discharge if only one conviction for the sale of a prohibited drug was before the court. It is the trial court which functions as the initial and statutory forum for determination, following conviction, of an appropriate sentence. Following the trial court’s decision, the sentence must be approved by the convening authority and, as in this case involving a punitive discharge, the supervisory authority. Nothing in the record before us indicates that either authority acted arbitrarily or without appropriate consideration of the nature of the two offenses remaining for sentencing consideration, the evidence offered in extenuation and mitigation, and the lack of aggravation evidence.

Our system of military justice, founded upon a desired balance between the rights of the individual service member and the need for a disciplined and effective military force, is not served well by arbitrary or inappropriate interventions into decisions arrived at on the trial level and on review below which are in accordance with the law and reflect appropriate decisions well within the discretionary areas accorded by the law. When such decisions are not made in accordance with the law, this Court will not hesitate to act. Such intervention is neither necessary nor required in this case.

The impact of drug transactions upon the effectiveness of our armed forces has been the subject of recurring comment throughout our national society. It is a matter of great and understandable concern to those within our operating forces as well as to those of us charged with insuring the maintenance of an equitable and effective system of military justice. See United States v. Trottier, 9 M.J. 337 (C.M.A.1980). The sale of prohibited drugs represents a significant degree of criminality because of the pervasive and uncontrollable reach and impact of such transactions. The buyer is often unknown, his duty assignments and responsibilities are not the subject of general discussion prior to consummation of such sales.

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Bluebook (online)
12 M.J. 626, 1981 CMR LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harvey-usnmcmilrev-1981.