United States v. Quintero

54 M.J. 562, 2000 CCA LEXIS 236, 2000 WL 1643970
CourtArmy Court of Criminal Appeals
DecidedOctober 25, 2000
DocketARMY 9801533
StatusPublished
Cited by1 cases

This text of 54 M.J. 562 (United States v. Quintero) is published on Counsel Stack Legal Research, covering Army 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. Quintero, 54 M.J. 562, 2000 CCA LEXIS 236, 2000 WL 1643970 (acca 2000).

Opinion

OPINION OF THE COURT

CARTER, Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of absence without leave (five specifications), failure to go to his appointed place of duty (four specifications), willful disobedience of a noncommissioned officer’s order, wrongful use of marijuana, wrongful use of cocaine (two specifications), and making and uttering a check without sufficient funds (two specifications), in violation of Articles 86, 91, 112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, 912a, and 934 [hereinafter UCMJ]. The approved sentence was a bad-conduct discharge, confinement for seventy-five days, and reduction to Private El. Appellant was awarded thirty-seven days of pretrial confinement credit against the sentence to confinement.

In this Article 66, UCMJ, 10 U.S.C. § 866, appeal, appellant raises two assignments of error. We agree with appellant’s assertion that the military judge improperly reconsidered appellant’s adjudged sentence, but find no error in the military judge’s ruling that appellant was not subjected to unlawful pretrial punishment when he was required to perform cleaning duties with other pretrial confinement prisoners who were junior in rank to him.

Announcement of Sentence

Facts

The military judge originally announced, “This court adjudges the following [sentence]: To be discharged from the service with a Bad-Conduct Discharge; and [t]o be confined for 75 days. No forfeitures or reduction. You may be seated.” (Emphasis added). After discussing the quantum portion of the pretrial agreement and appellant’s post-trial and appellate rights, the military judge adjourned appellant’s court-martial.

Two minutes after adjournment, the military judge called the court to order and the following exchange occurred:

MJ: Sergeant Quintero, Captain Arias, Captain Flippin, when I announced my sentence just a few minutes ago, I announced an inconsistent sentence. I’d like to go back on the record to correct that.
I originally announced that the defendant would be sentenced to a Bad-Conduct Discharge, 75 days confinement, no forfeitures and no reduction. By operation of Article 58, [UCMJ,] 10 U.S.C. § 858, when the defendant is sentenced to a Bad-Conduct Discharge and/or confinement, there is an automatic reduction to the grade of El. So my sentence will be as follows:
To be discharged with a Bad-Conduct
Discharge;
75 days confinement; and
Reduction to the grade of El.
No forfeitures.
The accused will be credited with 37 days confinement against the sentence to confinement.
Does counsel for the government understand my correction of the sentence?
TC: Yes, Your Honor.
MJ: More importantly, does the defendant and defense counsel understand my correction of the sentence?
ACC: Yes, sir.
MJ: Captain Flippin?
DC: Yes, Your Honor.
MJ: Are there any questions or further comments to take up? [Negative response from all parties.]
If not, then I stand corrected as I earlier spoke. My sentence is now corrected, and is now the sentence of the court, and we are again adjourned.

In her Rule for Courts-Martial [R.C.M.] 1105 submission to the convening authority on appellant’s behalf, trial defense counsel asserted that the military judge committed legal error by reconsidering appellant’s sentence in violation of R.C.M. 1009. Appellant’s R.C.M. 1105 submission asserted what happened during the two-minute break be[564]*564tween adjournment and the reopening of the court-martial.

After adjournment, LTC Richard Hough, the active duty military judge who was observing LTC Flaigle, immediately gathered LTC Flaigle and government and defense counsel, and informed LTC Flaigle that he had announced an inconsistent sentence because, pursuant to Article 58, [UCMJ,] as a result of receiving both confinement and a bad-conduct discharge the accused would be automatically reduced by operation of law.1 LTC Hough suggested to LTC Flaigle that he should reconsider his sentence and either impose a reduction or reconsider the bad-conduct discharge. Within a couple of minutes, LTC Flaigle went back on the record, and this time LTC Flaigle noted on the record that by operation of Article 58, [UCMJ,] there is an automatic reduction to El. ROT, p. 151. LTC Flaigle then pronounced sentence a second time____
The military judge’s second pronouncement of sentence constituted an improper reconsideration of sentence under R.C.M. 1009. Specifically, R.C.M. 1009(c)(1) allows a military judge to call a session for clarification when a sentence is “ambiguous”. In this case, however, the original sentence of the military judge was not ambiguous. The original sentence was properly announced under R.C.M. 1007. There was absolutely nothing ambiguous about the original sentence of 75 days confinement and a bad-conduct discharge. That sentence is straightforward and readily understandable.

(Emphasis added).

In his addendum to his recommendation under R.C.M. 1106, the staff judge advocate stated that he had “examined the pertinent case law and regulations in connection with the defense’s assertion and f[ound] that [the] sentence was appropriately announced.”

In its appellate brief, the government argues that the “military judge corrected an oversight in the sentence which he originally announced. His correction in the sentence was consistent with his authority as the sentencing authority and did not constitute a reconsideration of the sentence.”

Discussion

Appellant argues that the military judge improperly reconsidered an unambiguous sentence under R.C.M. 1009, while the government asserts the military judge merely corrected an erroneous announcement of sentence under R.C.M. 1007. R.C.M. 1007(b) provides:

(b) Erroneous announcement. If the announced sentence is not the one actually determined by the court-martial, the error may be corrected by a new announcement made before the record of trial is authenticated and forwarded to the convening authority. This action shall not constitute reconsideration of the sentence. If the court-martial has been adjourned before the error is discovered, the military judge may call the court-martial into session to correct the announcement.

R.C.M. 1009(c)(1), upon which appellant relies, states:

(c)

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Cite This Page — Counsel Stack

Bluebook (online)
54 M.J. 562, 2000 CCA LEXIS 236, 2000 WL 1643970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-quintero-acca-2000.