United States v. Johnson

65 M.J. 919, 2008 CCA LEXIS 42, 2008 WL 331082
U S Coast Guard Court of Criminal Appeals·Decided February 7, 2008·No. CGCMG 0209; No. 1254·Published·Cited by 2 cases

Opinion

TUCHER, Judge:

Appellant was tried by general court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of the following offenses: one specification of dereliction of duty, in violation of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892; one specification of willful and wrongful damage to personal property owned by another, in violation of Article 109, UCMJ, 10 U.S.C. § 909; and one specification each of wrongful use, wrongful distribution, and wrongful introduction of cocaine onto a vessel, aircraft, vehicle, or installation used by the armed forces, all in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The military judge sentenced Appellant to a bad-conduct discharge, confinement for eighteen months, and reduction to E-l. After announcing the sentence, the military judge credited Appellant with 127 days of Allen credit for pretrial confinement served between 25 January 2005 and the date of trial. United States v. Allen, 17 M.J. 126 (C.M.A.1984). Under the terms of the pretrial agreement, the Convening Authority approved the sentence as adjudged but suspended all confinement in excess of fourteen months for twelve months from the date the accused is released from confinement.

Before this Court, Appellant assigns the following three errors:

I. Appellant’s pleas are improvident because the military judge failed to explain the defense of lack of mental responsibility after evidence presented on sentencing indicated that Appellant may not have been able to distinguish right from wrong.
II. Appellant’s sentence is inappropriately severe.
III. This Court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved.

We address Appellant’s first assignment below. Because we find Appellant’s pleas of guilty to be improvident, we set aside the findings and sentence and remand the case to the Convening Authority.

Background

Appellant enlisted in the Coast Guard on 4 November 2002 and, after completing Radar-man “A” School in April 2003, was assigned to Coast Guard Activities New York. Upon his arrival, Appellant was trained and qualified for duty within the command’s Vessel Traffic Service branch. In June of 2004, the Coast Guard Investigative Service (CGIS) commenced a criminal investigation of Appellant into suspected illegal distribution, introduction, and use of cocaine. The investigation was predicated on a tip initiated by Mr. Daniel Rhodes, Appellant’s friend who was at the time stationed at Activities New York. Rhodes provided a detailed account of Appellant’s illegal drug activities and eventually agreed to act as a confidential informant in a “controlled buy.” On the night of 16 June 2004, Appellant purchased four vials of cocaine for a total of $280 from a dealer in Manhattan, using $160 of his own funds and $120 provided by Rhodes.5 The dealer also provided an extra quantity of cocaine in a bag as a bonus. Early the next morning, Rhodes picked up Appellant at the Staten [921] Island Ferry terminal and drove back to Activities New York, where the cocaine was introduced onto the Coast Guard installation. Once in Rhodes’ room at Unaccompanied Personnel Housing, Appellant distributed one cocaine vial and the plastic bag containing cocaine to Rhodes in exchange for $200. Following the transaction, Appellant was apprehended by CGIS agents and eventually provided a statement admitting to various drug-related offenses.

Appellant’s drug offenses were referred to general court-martial along with other offenses related to misuse of his government credit card and vandalism of a television set owned by Rhodes. At trial, Appellant pleaded guilty to the above-stated charges pursuant to a pretrial agreement. During the providence inquiry conducted in accordance with United States v. Care, 18 USCMA 535, 40 C.M.R. 247, 1969 WL 6059 (1969), the military judge elicited Appellant’s agreement with a stipulation of fact and to the elements of each offense, and accepted the guilty pleas. At this point in the proceedings, Appellant said little that would have led the military judge to suspect that his mental responsibility or mental capacity was in issue. During presentencing proceedings, however, Appellant introduced the testimony of Mr. Jeffrey Perles, a licensed clinical social worker and Clinic Director for the Army Substance Abuse Program at Fort Hamilton. Mr. Perles was qualified as an expert in chemical substance abuse and testified concerning Appellant’s participation in the Substance Abuse Treatment Program while he was in pretrial confinement, during which time Mr. Perles saw Appellant nineteen times over a five-month period. (R. at 191, 197, 203.) Mr. Perles testified that the overall treatment strategy of his program included identification of a psychosocial diagnosis as well as the development of an understanding of the particular needs of the chemical-dependent patient. (R. at 201.) Mr. Perle’s testimony was offered to show that Appellant was a chemical substance abuser who suffered from serious mental illness that made him particularly susceptible to abusing illegal drugs in the absence of structured therapy and treatment. (R. at 196-99.) On direct examination by civilian defense counsel, Mr. Perles testified in relevant part as follows:

Q: Can you explain, just generally speaking, what is a substance abuse problem?
A: Generally, it’s considered to be when a person uses a substance to self-medicate some problem that they can’t cope with, and later on it takes on a life of its own, and the person uses the drugs for the sake of keeping a certain feeling going.
Q: And do you believe that that happened in this case?
A: Yes.
Q: And what led you to that conclusion?
A: Well, after working with Mr. Johnson, it was apparent that he did have a number of emotional issues. It was apparent that his affect was labile. It was obvious that his mood was oftentimes depressed. Oftentimes in counseling he was very detached, couldn’t make contact with him, sometimes for a few minutes, until we were able to reestablish eye contact. We realized — I realized that he had underlying emotional problems.
Q: And you believe that contributed to his substance abuse?
A: I believe it’s a contributing factor, yes.

(R. at 192-93.)

Mr. Perles then explained why Appellant would have engaged in illegal substance abuse:

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United States v. Johnson, 65 M.J. 919, 2008 CCA LEXIS 42, 2008 WL 331082 (uscgcoca 2008).

65 M.J. 919 (United States v. Johnson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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