United States v. Norris

33 M.J. 635, 1991 CMR LEXIS 1103, 1991 WL 144070
CourtU S Coast Guard Court of Military Review
DecidedAugust 2, 1991
DocketCGCM 0044; Docket No. 972
StatusPublished
Cited by8 cases

This text of 33 M.J. 635 (United States v. Norris) is published on Counsel Stack Legal Research, covering U S Coast Guard 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. Norris, 33 M.J. 635, 1991 CMR LEXIS 1103, 1991 WL 144070 (cgcomilrev 1991).

Opinion

BAUM, Chief Judge:

Appellant was tried by general court-martial judge alone. Pursuant to pleas of guilty, entered in accordance with a pretrial agreement, he was convicted of nine specifications of assault and battery on four female victims in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928; one specification of destruction of private property in violation of Article 109, UCMJ, 10 U.S.C. § 909; and one specification of communicating a threat to injure, one specification of impersonating an agent of superior authority, and one specification of obstructing justice, all in violation of Article 134, UCMJ, 10 U.S.C. § 934. The judge imposed a sentence of a dishonorable discharge, confinement for three years and forfeiture of all pay and allowances. The Convening Authority approved the sentence but suspended all confinement in excess of eighteen months, as required by the pretrial agreement.

Before this court, appellant has assigned three errors: (1) that his pleas of guilty were rendered improvident by the judge’s failure to provide adequate advice in accordance with Rule for Courts-Martial (R.C.M.) 910; (2) that appellant’s punitive discharge, confinement in excess of six months and forfeitures in excess of two-thirds pay per month for six months should be disapproved because of an inadequate record of trial; and (3) that the sentence is disproportionately severe. «=

I

Guilty Plea Advice and Inquiry

We note that the military judge, a Navy Captain with many years on the bench, failed to provide the detailed guilty plea advice and inquiry we have come to expect of Coast Guard judges who follow the Coast Guard’s Trial Guide. Despite the departure from Coast Guard practice, we are unable to say that the inquiry and explanation of rights fail to meet the minimum requirements of R.C.M. 910 and case law on the subject. We agree with Appellate Government Counsel's assertion that the record as a whole establishes that appellant’s guilty pleas were informed and voluntary and that the requirements of R.C.M. 910 were satisfied. As a caveat, [637]*637however, abbreviated judicial explanations and inquiries should be avoided. The Coast Guard Trial Guide sets out a road map for averting error that may materially prejudice substantial rights or possibly cause guilty pleas to be found improvident. While not required, failure to follow that Guide invites potential error.

II

Adequacy of the Record of Trial

Article 54(c), UCMJ, 10 U.S.C. § 854(c) requires the preparation of a “complete record of the proceedings and testimony” in each general court-martial with an adjudged sentence of the magnitude here. That statutory provision has been implemented by R.C.M. 1103, which spells out further details and requirements for “a complete record”, as well as responsibility for the preparation of such a record. Appellant contends that the requirements of R.C.M. 1103 have not been met, leaving this court with a record inadequate to meet our review responsibilities and necessitating disapproval of appellant’s dishonorable discharge, all confinement in excess of six months, and forfeiture in excess of two-thirds pay per month for six months. In this regard, appellant asserts three specific areas of deficiencies in the record: (1) enclosures 9 through 13 of the Article 32, UCMJ pretrial investigation are missing; (2) the terms of suspension of the sentence are not included in the record; and (3) a petition for clemency or assignment of legal error considered by the Convening Authority is missing. All of the absent items noted by appellant, while required by R.C.M. 1103, are characterized in that Rule as “matters attached to the record.” Arguably, that description implies that such components are not a part of the record itself. We believe otherwise, viewing these matters as integral segments of the “complete record” required by Article 54, UCMJ.

Apart from the statutory requirement for a “complete record,” which Article 54, UCMJ calls for to support a sentence with a discharge or more than six months confinement and more than six months forfeiture of two-thirds pay per month, appellant argues that without the missing material this court is unable to fulfill its review responsibilities under Article 66, UCMJ, 10 U.S.C. § 866. In particular, appellant asserts that the incomplete enclosures to the Article 32 investigation report prevent us from determining whether there was material offered at that stage that should also have been presented later in extenuation and mitigation. Thus, the argument goes, we are left with insufficient information to evaluate the effectiveness of counsel during the sentencing phase of trial. Appellant also questions how the Court can evaluate counsel’s post-trial assistance in the absence of the clemency petition noted by the Convening Authority in his action.

With respect to the conditions of suspension which have not been included in the record as required, appellate counsel asks whether the terms are both legal and permissible as a matter of public policy and whether they were ever served upon Appellant. He says these questions cannot be answered without the missing information. In response, we note that appellant’s period of probation for the suspended sentence ended in April 1991. Accordingly, the questions raised concerning the terms of that suspended sentence are now moot and need not be addressed.

The deficiencies in the Article 32, UCMJ, investigation report and the missing clemency petition are another matter. First, we note that appellant failed to raise any issues at trial as to the Article 32 investigation. Moreover, there are no factual questions left hanging that might prompt our need to view the investigation exhibits. Since appellant pled guilty to the offenses, stipulated to the facts and satisfactorily answered the judge’s questions during the providence inquiry, the missing enclosures would seem to offer little factually that cannot be gleaned elsewhere in the record. Notwithstanding the apparent irrelevance of the Article 32 investigation report enclosures at this point, appellant contends we need the missing documents because they might contain material that should have [638]*638been presented in extenuation and mitigation. He argues that upon viewing such enclosures, if we found material that should have been presented during sentencing, but was not offered, we might then find a denial of effective representation. Appellant makes essentially the same argument concerning the missing clemency petition, that, without it, we are unable to determine the effectiveness of post-trial representation.

Such assertions call for pure speculation on our part. Acceptance of appellant’s argument would require us in every case to assure that no possible potential extenuation and mitigation matters or post-trial submissions were overlooked in order to meet our Article 66, UCMJ responsibilities. We reject such a requirement as an overbroad reading of our duties under Article 66.

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Cite This Page — Counsel Stack

Bluebook (online)
33 M.J. 635, 1991 CMR LEXIS 1103, 1991 WL 144070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-norris-cgcomilrev-1991.