United States v. Hutchison

57 M.J. 231, 2002 CAAF LEXIS 1037, 2002 WL 2008241
CourtCourt of Appeals for the Armed Forces
DecidedAugust 30, 2002
Docket02-5001/CG
StatusPublished
Cited by22 cases

This text of 57 M.J. 231 (United States v. Hutchison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hutchison, 57 M.J. 231, 2002 CAAF LEXIS 1037, 2002 WL 2008241 (Ark. 2002).

Opinions

PER CURIAM:

A general court-martial composed of a military judge sitting alone convicted appellee, contrary to his pleas, of rape, forcible sodomy of a minor, adultery, and indecent acts upon a minor, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice (UCMJ), 10 USC §§ 920, 925, and 934, respectively. He was sentenced to a bad-conduct discharge, confinement for 28 months, and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged.

A panel of the Court of Criminal Appeals affirmed the findings. However, the court affirmed only that part of the sentence extending to confinement for 28 months pursuant to its statutory responsibility to review the sentence under Article 66(c), UCMJ, 10 USC § 866(c). 55 MJ 574 (C.G.Ct.CrimApp. 2001). The full Court of Criminal Appeals, upon motion by the Government for reconsideration en banc, approved the panel decision. 56 MJ 684 (2001). The General Counsel of the Department of Transportation certified to our Court four issues related to the action on the sentence by the Court of Criminal Appeals.1 For the reasons set forth below, we remand the case to the Court of Criminal Appeals for clarification.

I. BACKGROUND

In January 1997, appellee telephoned civilian police authorities in South Carolina to report that he had committed an act of sexual abuse on his 12-year-old stepdaughter at their off-base residence. He cooperated in the ensuing civilian investigation. Military charges were preferred on February 21, and he was indicted on state charges by civilian authorities on April 17.

On April 28, the convening authority referred the military charges to trial by general court-martial. Because civilian charges were pending in South Carolina, the convening authority was required by Coast Guard regulations to obtain authorization from the Commandant of the Coast Guard for the court-martial. See para. B-4^a, ch. 2, Military Justice Manual, COMDTINST M5810.1C (Change 4, 14 Feb 1997). The convening authority sought such authorization on May 27, which was granted on May 28. During appellee’s court-martial, which began on July 9 and concluded on July 15, 1997, neither party brought to the attention of the court any matter concerning appellee’s pending civilian trial in state court.

[233]*233On September 11, prior to the convening authority’s action on appellee’s military trial, appellee appeared in state court and entered a guilty plea to committing a lewd act upon a child. He was sentenced to five years’ confinement, which was suspended with two years’ probation. The probation was tolled until appellee was released from military custody.

On December 3, appellee’s individual military defense counsel filed a request for clemency with the convening authority pursuant to RCM 1105, Manual for Courts-Martial, United States (2000 ed.),2 including a request to disapprove the punitive discharge and suspend the balance of confinement, emphasizing appellee’s acceptance of responsibility and his potential for rehabilitation. In the memorandum supporting the requested reduction in sentence, which was not approved by the convening authority, defense counsel contended that the goals of sentencing would be met by the other aspects of appellee’s military sentence. In addition, defense counsel included information concerning the civilian pi’oceedings and sentence to underscore appellee’s acceptance of responsibility and his potential for rehabilitation, contending that the goals of military sentencing would be met through the monitoring and supervision imposed by state authorities under his state sentence.

Among the issues raised before the Court of Criminal Appeals, appellee contended that the dual proceedings before military and state courts constituted a double-jeopardy violation. See U.S. Const, amend. V; Art. 44, UCMJ, 10 USC § 844. In addition, he contended that the convening authority had not obtained an appropriate authorization under Coast Guard regulations for a military trial while state civilian proceedings were pending. The court rejected both legal arguments. 55 MJ at 579, 581. The court determined, however, that it was appropriate to take into account appellee’s civilian sentence in exercising its broad authority under Article 66(c), swpra, to determine what sentence should be approved. After considering appellee’s potential for rehabilitation, including the impact of appellee’s civilian sentence, the court approved the confinement served and disapproved the punitive discharge and reduction in grade. 55 MJ at 582.

II. DISCUSSION

The initial responsibility for approval of the sentence is vested in the convening authority. See Art. 60(e), UCMJ, 10 USC § 860(c). The accused may submit for the convening authority’s consideration anything “that may reasonably tend to affect the convening authority’s decision whether to ... approve the sentence.” RCM 1105(b)(1), Manual, supra; see Art. 60(b)(1). The submission may include “[mjatters in mitigation which were not available for consideration at the court-martial,” see RCM 1105(b)(2)(C), as well as certain matters that could have been raised by the accused at trial but which the accused chose not to raise, such as a prior nonjudicial punishment under Article 15, UCMJ, 10 USC § 815, for the same misconduct. See United States v. Gammons, 51 MJ 169, 183 (1999).

During subsequent review of the sentence approved by the convening authority, the Court of Criminal Appeals must review “the entire record.” Art. 66(c). Based upon that review, the court then must determine whether the sentence approved by the convening authority “should be approved” or whether the court should approve only a “part or amount of the sentence.” Id. The breadth of the power granted to the Courts of Criminal Appeals to review a case for sentence appropriateness is one of the unique and longstanding features of the Uniform Code of Military Justice. See, e.g., United States v. Boone, 49 MJ 187, 192 (1998); United States v. Lanford, 6 USCMA 371, 378-79, 20 CMR 87, 94-95, (1955). As we noted in United States v. Lacy, 50 MJ 286, 287-88 (1999):

Congress ... has provided the Courts of Criminal Appeals not only with the power [234]*234to determine whether a sentence is correct in law and fact, but also with the highly discretionary power to determine whether a sentence “should be approved.” Art. 66(c), UCMJ, 10 USC § 866(c). The power to determine whether a sentence should be approved has no direct parallel in the federal civilian sector, which relies on sentencing guidelines.

The “power to review a case for sentence appropriateness ... includes but is not limited to consideration of uniformity and evenhandedness of sentencing decisions,” which may include consideration of a sentence imposed by a civilian court in a closely related case. United States v. Sothen, 54 MJ 294, 296-97 (2001). The power to review the entire record for sentence appropriateness includes the power to consider the allied papers, as well as the record of trial proceedings. See United States v. Healy, 26 MJ 394, 395 (CMA 1988); see also Boone, supra (discussing limitations applicable to supplementation of the record during review under Article 66(c)).

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Cite This Page — Counsel Stack

Bluebook (online)
57 M.J. 231, 2002 CAAF LEXIS 1037, 2002 WL 2008241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hutchison-armfor-2002.