United States v. Lentz

54 M.J. 818, 2001 CCA LEXIS 61, 2001 WL 262645
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedJanuary 12, 2001
DocketNMCM 99 00433
StatusPublished
Cited by3 cases

This text of 54 M.J. 818 (United States v. Lentz) 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. Lentz, 54 M.J. 818, 2001 CCA LEXIS 61, 2001 WL 262645 (N.M. 2001).

Opinion

DeCICCO, Chief Judge:

Petty Officer Lentz was convicted, in accordance with his pleas, by a general court-martial of making a false official statement, five specifications of assault with a means likely to produce death or grievous bodily harm, six specifications of assault consummated by a battery upon a child under the age of 16 years, assault consummated by a battery upon his wife, and two specifications of adultery in violation of Articles 107, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 928, and 934. The military judge sentenced him to confinement for 18 years, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved only so much of the sentence as included confinement for 12 years, reduction to pay grade E-1, and a dishonorable discharge.

Before addressing the assigned errors, we have noted an error in the convening authority’s action. Although the pretrial agreement did not limit the amount of confinement to be approved, it did require the convening authority to defer and waive automatic forfeitures of pay under Article 58b, UCMJ, 10 U.S.C. § 858b. Appellate Exhibit III at 1. In spite of the recommendation of the staff judge advocate, the convening authority for some reason did not do so in his action. We direct that appropriate authorities determine whether the appellant suffered any forfeitures of pay under Article 58b, UCMJ, and if he has, that such forfeitures be restored according to the pretrial agreement.

Appellate defense counsel raises five issues in this appeal. We find no merit in them, and conclude that the findings and sentence 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(e), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Alleged Post-Trial Comments of the Military Judge

The second and fourth assignments of error are related, and we will address them together. In these issues, the appellant claims the military judge adjudged an illegal sentence and erred by disregarding evidence of the appellant’s good military character. The basis for these assigned errors is contained in trial defense counsel’s post-trial response to the staff judge advocate’s recommendation and petition for clemency. He stated in this document that within an hour after the court-martial, the military judge approached Mm to discuss the case. He said that another military attorney was also present. He wrote:

The military judge described how she arrived at the sentence of eighteen years of confinement. She said that she believed the offenses warranted about six years confinement for each of the three children ... that AE2 Lentz assaulted. (Six multiplied by three equals eighteen.)

Clemency Request of 8 Jan 1998 at 3. The defense counsel then pointed out the difference in the nature and number of offenses the appellant had committed upon each of his three children. In the case of ZL, the appellant had pleaded guilty to five specifications of assault with a means likely to produce death or grievous bodily harm and two specifications of assault consummated by a battery upon a child under the age of 16 years, which offenses authorized 19 years of confinement. As for his other two children, PL and JL, the appellant had pleaded guilty to two specifications each of assault consummated by a battery upon a child under the age of 16 years, which meant the maximum authorized confinement for the offenses committed on each child was four years. Therefore, the military judge could not sentence him to six years for the offenses upon each of the chil[820]*820dren because the maximum was only four years in the cases of two of the three. He also stated that the military judge “abused her role as the sentencing authority” because she also told him at the same meeting that “she gives little weight to good military character evidence for mitigation in child physical assault cases.” Id.

The military judge, while acknowledging that she spoke with the defense counsel after trial, denied in an affidavit to us that she made either of the statements. She said she could not understand how the defense counsel could have mistaken her comments. She said she made some “generic, general statements” about the sentence, but did not state that she gave six years for each of the three child victims. As for the other alleged statement, she said she only stated that general good military character evidence does not carry the same weight in cases involving common law felony cases as it does in purely military offenses. She adamantly denied stating that she did not consider good military character evidence. In a subsequent sworn affidavit, the defense counsel reasserted that the military judge had made the statements he attributed to her in his post-trial submission to the convening authority.

Although we have considered ordering a limited fact-finding hearing to resolve the matter, upon further consideration, we hold that such a hearing is unnecessary because the out-of-court post-trial statements of the military judge, even if made as alleged by the defense counsel, may not be considered in evaluating the correctness of the sentence in law and fact. United States v. Gonzalez, 42 M.J. 373, 374-75 (1995); see also Fayerweather v. Ritch, 195 U.S. 276, 306-07, 25 S.Ct. 58, 49 L.Ed. 193 (1904). Military Rule of Evidence 606(b), Manual for Courts-Martial, United States (1998 ed.), excludes evidence concerning deliberations on the verdict or sentence of a court-martial except where there is an inquiry as to:

(1) whether extraneous prejudicial information was improperly given to the sentencing authority;
(2) whether any outside influence was improperly brought to bear on the sentencing authority; or
(3) whether unlawful command influence infected the proceedings.

Id. The alleged comments of the military judge in this case relate directly to her deliberative process in determining the appellant’s sentence. None of the Mil.R.Evid. 606(b) factors was present. Therefore, the alleged comments will not be found to impeach the sentence or form a basis for determining that it was “illegal” as the appellant now alleges. The maximum legal sentence in this case included confinement for 34 years and 6 months. The adjudged sentence of 18 years was therefore not illegal. Moreover, even if it were to be found that the military judge’s comments could be considered, we would find no prejudice to the appellant in view of the convening authority’s reduction of his term of confinement from 18 years to 12 years. Art. 59(a), UCMJ.

We conclude that the second and fourth assignments of error lack merit. We take this opportunity, however, to reiterate then Judge Cox’s admonition to the trial judiciary in United States v. Copening, 34 M.J. 28, 29 n.

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Cite This Page — Counsel Stack

Bluebook (online)
54 M.J. 818, 2001 CCA LEXIS 61, 2001 WL 262645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lentz-nmcca-2001.