United States v. Martin

4 M.J. 852, 1978 CMR LEXIS 759

• Court: U.S. Army Court of Military Review
• Decided: February 28, 1978
• Docket: CM 434785
• Status: Published

Opinions

OPINION OF THE COURT ON FURTHER REVIEW

DeFORD, Judge:

The appellant, pursuant to his pleas, was convicted at a bench trial of breach of restriction, failure to obey the orders of his commanding officer, false imprisonment, uttering checks with intent to defraud and wrongful use of marijuana in violation of Articles 92, 97, 123a and 134, Uniform Code of Military Justice (UCMJ) (10 U.S.C. §§ 892, 897, 923a and 934). He received an approved sentence extending to a dishonorable discharge, confinement at hard labor for 18 months, forfeiture of $200.00 per month for 18 months, and reduction to the grade of Private E-1. Our review of the appellant’s case is pursuant to Article 66, UCMJ, (10 U.S.C. § 866).

One of the principal issues in this case is whether the appellant was required to fore-go his right to trial by jury on sentencing as a prerequisite to negotiating a pretrial agreement. United States v. Boyd, 54 C.M.R. 312 (A.C.M.R. 1976); United States v. Cordova, 4 M.J. 604 (A.C.M.R. 1977). The similarity of the procedures employed by the processing command in negotiating pretrial agreements in the above cases caused us to require a DuBay -type hearing¹ in this case as well as the other pending cases with similar factual backgrounds.

As a consequence of appellant’s trial and the DuBay hearing ordered by this Court, appellant has raised four assignments of error. We find merit in two of these assignments.

I

Appellant alleges that he was prejudiced by the admission of a proceeding under Article 15, UCMJ, 10 U.S.C. § 815, into evidence during the sentencing phase of the trial. He further alleges that the punishment had been appealed but no action by the appellate authority had been taken thereon.

We agree with his allegation. The record established that the appellant had been punished under Article 15, supra, and had indicated his desire to appeal. No appellate action is shown on the Article 15 form. However, in Item 11 of the form there is annotated the following statement:

“EM had ample time to submit statements on his behalf. Paperwork submitted on 2 Mar 76,15 days from date of punishment.

/s/

Frank J. Gehrki, III, CPT, Armor, CDR”

We are unable to ascertain from the foregoing cryptic statement of appellant’s immediate commander whether the appeal was ever submitted to the next higher authority. In any event, the form does not reflect that action was taken on the appeal.

In the absence of appellant’s withdrawal of the appeal, he had a statutory right to have it considered whether or not he attached other matters.² Accordingly, the Article 15 action was incomplete on its face and should not have been admitted into evidence.³

The foregoing error must be tested for prejudice. The improperly admitted Article 15 punishment was for seven offenses involving breach of restriction and failure to obey orders not to wear civilian clothing. These offenses are similar to some of the offenses of which the accused was found guilty at trial. The severity of these offenses is diminished when compared to the offenses of which the appellant was convicted and the relatively lenient sentence imposed at trial by the military judge. Nevertheless, we will exercise an abundance of caution and reassess the appellant’s sentence.

II

Appellant also alleges that his attorney-client relationship with his appellate defense counsel was terminated for administrative convenience.

The factual background upon which this alleged error is based rests in this Court’s order for a limited factual hearing.

At the outset of appellate review, this Court determined that it could not resolve the issue of the providency of the appellant’s plea of guilty based on the record before us. Accordingly, on 21 March 1977 a limited hearing designed to supply the factual basis upon which the providency issue could be decided was ordered.

The appellant viewed this order for a supplementary hearing as a continuation of appellate review. His appointed appellate defense counsel requested temporary duty and travel authorization to appear in behalf of the appellant at the supplementary hearing. This request was denied. The hearing was subsequently held at Fort Leavenworth, Kansas, and the appellant and others involved received appointed counsel at that command. At the hearing, appellant moved the trial court to require his appellate defense counsel to represent his interests. His request was denied.

At the outset, we must examine the nature of the appellate function in light of the military concept of appellant’s right to counsel. Before the civil courts in the United States, an attorney will normally represent a client through successive levels of appeal. In the military practice, because of the dispersal of forces, the trial and appellate activities are separate insofar as detailed counsel are concerned.

Article 70, UCMJ, provides in part, with regard to appellate counsel, that The Judge Advocate General shall detail one or more commissioned officers as appellate defense counsel who are qualified under Article 27(b)(1) and that they shall represent the accused before the Court of Military Review or the Court of Military Appeals (1) when requested to do so by the accused; (2) when the United States is represented by counsel; and (3) when The Judge Advocate General has sent a case to the Court of Military Appeals. The same article provides that military appellate counsel shall also perform such other functions in connection with the review of courts-martial as The Judge Advocate General directs.

In United States v. Patterson⁴ the legislative history of Article 70 was considered with regard to whether an accused has a right to individual military appellate counsel in the sense that the term is used in Article 38 of the Code. The Court stated:

“In addition to the wording of Article 70(a) of the Code, which refers to the Judge Advocate General’s detailing in his office qualified lawyers to function as appellate defense counsel, other sections of the Code substantiate construction of Article 70 to mean that Congress contemplated designation of military appellate defense counsel different from trial counsel. ...” Id. at 161, 46 C.M.R. at 161.

The foregoing construction is consistent with the wording of the statute itself.⁵ Accordingly, where appointed counsel are concerned, there is no right of an appellant to be represented by trial defense counsel at the appellate level nor right to representation by appellate counsel at the trial level.⁶

Having determined that appointed appellate counsel do not have a per se right to represent an accused at a trial function, we must examine the nature of the hearing we ordered in order to determine whether it was a trial or an appellate function. As we have previously noted, the order of this Court contemplated an adversary fact-finding hearing. We did not authorize any discretion on the part of the convening authority selected by The Judge Advocate General to hold that hearing. His function was solely to appoint a hearing judge and provide counsel for this appellant in accordance with Article 38(c) of the Code, effectuate the type of hearing heretofore noted and return the authenticated record of the hearing to this Court.

In United States v. Flint⁷ the United States Court of Military Appeals clearly distinguished a DuBay-type proceeding from a rehearing when they stated: “A DuBay proceeding, in effect, is utilized to gather additional evidence or to resolve conflicting evidence before determining an issue presented to the appellate tribunal.” Accordingly, we believe that a DuBay hearing ordered by this Court is not a part of the appellate function as it has no immediate direct connection with the determination of an issue before the appellate Court but is, as had been previously stated by our high Court, a hearing utilized to gather additional evidence in order that an appellate issue may be decided in the future and as such, is an extension of the initial trial proceeding.

Here appellate defense counsel was only appointed to represent the appellant on appellate issues before this Court or possibly before the United States Court of Military Appeals in the future. As such, he was not entitled to represent the appellant at a trial function which was not directly related to the decisional process of an appellate issue. Accordingly, the Government did not sever the appellant’s attorney-client relationship with his appellate defense counsel for administrative convenience.

III

Appellant also alleges that his conviction of false imprisonment was improper under the rationale of United States v. Johnson, 3 M.J. 361 (C.M.A. 1977). Government counsel concedes that the offense of which the appellant stands convicted does not come within the scope of Article 97 of the Code as interpreted in Johnson, supra. However, they argue that Johnson overruled United States v. Hardy, 11 U.S.C.M.A. 487, 29 C.M.R. 303 (1960), which interpreted the provisions of Article 97 to include private acts of unlawful detention and that we should not give retroactive effect to Johnson, supra.

Hardy, supra, was decided in 1960. In that case, Judge Latimer speaking for a divided Court stated that the wording of the article indicates a congressional intent to sweep within the law all persons subject to the Code. Accordingly, any unlawful restraint of another’s freedom of locomotion by any service person constituted a violation of the article.

In Johnson, supra, the Court, 17 years later, determined that the congressional intent behind Article 97 was to provide limited application which did not apply to the private act of false imprisonment (unlawful detention) by one not acting under a delegation of authority from the Code.

Here, the appellant restrained a young woman from departing a vehicle against her will without any pretext of authority. We agree with Government counsel that Article 97 as it is now construed under Johnson, supra, would not apply to the appellant’s act.

The appellant’s case was tried in April, 1976 some 16 months prior to the decision in Johnson, supra. However, both cases were pending in the appellate process during a portion of the same period and as we have noted, appellant’s conviction was not final.

At common law, there was no authority for the proposition that judicial decisions made law only for the future.⁸ Accordingly, the traditional view has been that by overruling a prior decision the Court does not make new law but only vindicate the old law from misrepresentation.⁹ The modern view does not subscribe to the vindication theory but rather takes a pragmatic approach that the overruled case was the “law” until it was changed.

Notwithstanding the conflicting views, it is still accepted as a general rule that unless special circumstances warranting the denial of retroactive application exists, the overruling decision is entitled to retroactive as well as prospective application.

In those cases where retroactivity has been limited, such factors as justifiable reliance on decisions which are subsequently overruled, purpose of the new rule and burden on the administration of justice are considered jointly or severally as substantiating the view of partial retroactivity or prospective application.

In Linkletter v. Walker10 the Supreme Court of the United States reviewed the history of the case decisions concerning retroactivity and determined that their decision in Mapp v. Ohio¹¹ was not retrospective in application. That decision appears to endorse the theory that courts in appropriate cases may in the interest of justice, make the rule prospective. Decisions on retroactivity are not of constitutional proportions.¹² The Supreme Court has stated that courts must weigh the merits or demerits in each case by looking to the prior history of the rule in question, its purpose and effect and whether retrospective operation will further or retard its operation.¹³

We have enunciated a part of the prior history of Article 97, UCMJ. Data available in the office of the Clerk of Court indicates that only 44 convictions have been affirmed under the rule in Hardy, supra, in the intervening years.

Those previous convictions were obtained in good faith based on existing precedent and are “an operative fact which may have consequences which cannot justly be ignored.” ¹⁴

In addition, Johnson, supra, is a severe limitation of the scope of Article 97 of the Code. There is no question that subordinate jurisdictions have a right to rely upon the previous precedent of the appellate courts. However, that reliance does not mean that every change in the law must be entirely prospective in application.

Here, the appellant’s conviction for unlawful detention was not final on the date Johnson, supra, became the controlling law. As his conduct is now exempt from the operation of the statute under which he was convicted, justice demands he should be given identical treatment. Accordingly, we hold that Johnson, supra, is partially retroactive to these cases pending appellate review as of the date of that decision.¹⁵

IV

Finally, appellant alleges his plea was improvident as it was entered at trial pursuant to a pretrial agreement that was void as against public policy because the appellant was led to believe that in order to maximize his chances of gaining acceptance of his offer, he had to “sweeten the pot” by foregoing his right to be sentenced by members.

It has been held that a defendant who enters a plea of guilty simultaneously waives several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the due process clause, it must be an intentional relinquishment or abandonment of a known right or privilege.¹⁶ Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Although a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be said to be voluntary unless the defendant possesses an understanding of the law in relation to facts.¹⁷

Pretrial agreements have been a fertile source of litigation in the past.¹⁸ In Schmeltz, supra, the accused included a provision in a pretrial agreement which provided that the accused would request trial by judge alone if the convening authority accepted certain limitations on sentence. The questioned provision originated solely with the accused and was offered as an inducement to encourage the convening authority to accept the agreement. The United States Court of Military Appeals in affirming the use of the questioned provision as an incentive to negotiate the pretrial agreement, did not decide the issue on a basis of public policy. They stated that plea bargaining agreements should concern themselves only with bargaining on the charges and sentence. The questioned provision did not deal with a constitutional issue or fundamental principle that could affect the accused’s guilt or the legality of his sentence. However, the provision did, at the accused’s request, force an election of one of two sentencing agencies open to him under the applicable statute. Accordingly, an appellant may bargain away his right to trial by jury on sentencing if he so desires.

In United States v. Cordova, supra, we made factual findings regarding the methods employed by the processing command in negotiating pretrial agreements. Those factual findings are equally applicable here and we incorporate them by reference.

The difference in Cordova, supra, and this case rests upon the perceptions of counsel and the desire of the respective appellants. Here, the appellant’s individual military counsel did not possess the perception that the appellant was required to bargain away his right to trial by jury in order to negotiate a favorable pretrial agreement. She was well aware that a favorable agreement could be negotiated and the appellant could receive a jury on sentencing if he desired one. Appellant’s counsel advised the appellant of his rights in this regard and his manifested desire to have a trial before the military judge sitting alone was freely given after being correctly advised as to his available options. Accordingly, we find appellant’s plea was entirely provident in this respect.

One final matter remains to be resolved. Our decision on the issue of the partial retrospective application of United States v. Johnson, supra, raises the spectre that appellant’s pleas of guilty may be improvident because of a substantial misunderstanding of the maximum punishment. The factors to be considered in an analysis of this character have been previously considered by this Court on several occasions and need not be reiterated here.¹⁹ The maximum punishment applied in the appellant’s case included 29 years and two months confinement. Unlawful detention carries a maximum confinement of three years. Accordingly, the maximum confinement permissible was reduced to 26 years and two months.

Based upon the appellant’s responses to the trial judge during the providency inquiry and the pretrial agreement, we conclude that the appellant’s misunderstanding could not have been substantial. We believe the pretrial agreement negotiated by the appellant would not have been changed in any substantial degree even if all parties to the trial had had the clairvoyance to foresee the rationale in Johnson, supra. Accordingly, we find appellant’s plea entirely provident. However, we will, out of an abundance of caution, reassess the sentence.

The approved finding of guilty of Additional Charge I and its specification are set aside and the charge is dismissed. The remaining findings of guilty are affirmed. Reassessing the sentence based on the foregoing errors and the entire record only so much of the approved sentence as provides for a bad-conduct discharge, confinement at hard labor for 18 months, forfeiture of $200.00 pay per month for 18 months, and reduction to the grade of Private E-l is affirmed.

Judge DRIBBEN concurs.

1 . Cf. United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

2 . Article 15(c), UCMJ.

3 . United States v. Morales, 49 C.M.R. 458 (A.C.M.R. 1974), aff'd, 23 U.S.C.M.A. 508, 50 C.M.R. 647, 1 M.J. 87 (1975).

4 . 22 U.S.C.M.A. 157, 46 C.M.R. 157 (1973); see also United States v. Herndon, No. 430760, 2 M.J. 875 (A.C.M.R. 12 May 1976), petition granted, 25 U.S.C.M.A. 158, 54 C.M.R. 176, 2 M.J. 165 (1976).

5 . A plain and unambiguous statute is to be applied, not interpreted. Where no ambiguity is apparent, there is no reason to resort to rules of statutory construction, which are intended solely to remove—not create doubt. United States v. Ware, 24 U.S.C.M.A. 102, 105, 51 C.M.R. 275, 278, 1 M.J. 282 (1976).

6 . See also United States v. Donaldson, 54 C.M.R. 913, 2 M.J. 605 (N.C.M.R. 1977).

7 . 24 U.S.C.M.A. 270, 51 C.M.R. 722, 1 M.J. 428 (1976).

8 . See Note, “Retroactive or merely prospective operation of new rule adopted by courts in overruling precedents—Federal cases.” Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 992 (1965). See also Notes and Comments, “Prospective Overruling and Retroactive Application in the Federal Courts” 71 Yale Law-Journal 907.

9 . See Annotation, 10 A.L.R.3d 1371.

10 . See footnote 8.

11 . 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

12 . Linkletter v. Walker, supra 381 U.S. at 628, 85 S.Ct. 1731.

13 . Linkletter v. Walker, supra.

14 . See Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Linkletter v. Walker, supra.

15 . See United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801); Carpenter v. Wabash Railroad Company, 309 U.S. 23, 60 S.Ct. 416, 84 L.Ed. 558 (1940); United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934); Vanderbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941).

16 . United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969); citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

17 . United States v. Care, supra at 542, 40 C.M.R. at 254.

18 . See United States v. Schmeltz, 23 U.S.C.M.A. 377, 50 C.M.R. 83, 1 M.J. 8 (1975), affirmed in part and reversed in part, 24 U.S.C.M.A. 93, 51 C.M.R. 266, 1 M.J. 273 (1976), and the cases cited concerning this subject in United States v. Cordova, 4 M.J. 604 (A.C.M.R. 1977).

19 . See United States v. Walls, 3 M.J. 882 (A.M. C.R. 1977), petition granted, 4 M.J. 196 (C.M.A. 1977).