United States v. Russett

40 M.J. 184, 1994 CMA LEXIS 79, 1994 WL 455656

Opinions

Opinion of the Court

CRAWFORD, Judge:

Pursuant to his pleas, the accused was convicted of unauthorized absence (2 specifications) and missing movement by design, pursuant to Articles 86 and 87, Uniform Code of Military Justice, 10 USC §§ 886 and 887, respectively. The convening authority approved the sentence of a bad-conduct discharge, 90 days’ confinement (partially suspended), partial forfeitures, and reduction to the lowest enlisted grade. The Court of Military Review held that the staff judge advocate erred in failing to inform the convening authority that the judge found the first unauthorized absence was multiplicious with the missing movement.

Pursuant to Article 67(a)(2), UCMJ, 10 USC § 867(a)(2) (1989),

* the following issue was certified by the Judge Advocate General of the Navy:

WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW CORRECTLY INTERPRETED THIS COURT’S DECISION IN UNITED STATES V. BEAUDIN, 35 MJ 385 (CMA 1992), AS HAVING ESTABLISHED AS A UNIFORM RULE APPLICABLE TO ALL RCM 1106 RECOMMENDATIONS, THAT THE STAFF JUDGE ADVOCATE (SJA) MUST SPECIFICALLY RECITE ANY SENTENCE MULTIPLICITY DETERMINATIONS MADE BY A TRIAL JUDGE.

We hold that the Court of Military Review erred when it held that Beaudin established a uniform rule that the SJA’s recommendation must specifically recite any sentence multiplicity determination by a judge whether there is an objection by defense counsel.

In Beaudin, the SJA failed to mention in his post-trial recommendation that the military judge had found some of the offenses multiplicious for sentencing purposes. “However, defense counsel, in his response to that recommendation, noted the military judge’s ruling and asserted that the convening authority was being misled.” 35 MJ at 387. In response the SJA in an addendum to his recommendation stated the offenses were not multiplicious. Id. at 387. Two judges of the Court, in an opinion authored by Chief Judge Sullivan which was styled as an “Opinion” and not an “Opinion of the Court,” concluded that the judge’s multiplicity ruling was the type of concise information that “should be included in a staff judge advocate’s post-trial recommendation.” Id. at 388. However, the other three judges of the Court filed separate opinions concurring in the result which affirmed the decision of the court below. Thus, a majority of the judges of this Court declined to establish a uniform rule that RCM 1106(d)(3)(A), Manual for Courts-Martial, United States, 1984, requires that the SJA’s recommendation recite the multiplicity determinations by a judge.

Both in a written motion to this Court and during oral argument, the defense asks this Court to dismiss the certified issue or summarily affirm the decision below.

To support its argument, the defense cites United States v. Bryant, 12 MJ 307 (CMA 1981) (summary disposition), for the proposition that the certified issue should be dismissed where the “resolution of the issue would not materially alter the situation for the accused or the Government.” The defense argues that, since there would be no change in the ultimate disposition, there would be no reason for us to hear the case. However, Bryant is factually distinguishable because there the Acting Judge Advocate General of the United States Army did not ask whether the decision from the Court of Military Review was “correctly decided.” See also United States v. Redding, 11 MJ 100, 115 (CMA 1981) (Fletcher, J., dissenting) (implying the Government could appeal “incorrect standard of law”). Additionally, this argument overlooks those cases where we apply the plain-error doctrine or the harmless-error doctrine. See, e.g., United States v. Dudding, 37 MJ 429 (CMA 1993). In those cases we may very well correct the rule set out below and not change the ultimate disposition.

“[T]his Court has over the years construed the literal wording of Article 67(b)(2) [now 67(a)(2)] in a way which permitted some leeway to leave questions unanswered that the Judge Advocate General had certified under Article 67(b)(2).” United States v. Redding, 11 MJ at 113 (Everett, C.J., concurring). While this Court has failed to provide advisory opinions, United States v. McAnally, 10 MJ 270 (CMA 1981), and United States v. Clay, 10 MJ 269 (CMA 1981), it has not refused to answer certified questions which would not or did not alter the position of the parties. United States v. Martin, 20 MJ 227 (CMA 1985) (certified issue concerning presentencing evidence where the Court of Military Review had found the sentence appropriate notwithstanding the error, upon reassessment); United States v. Wheaton, 18 (CMA 1984) (certified issue concerning admissibility of nonjudicial punishment); United States v. Kuehl, 11 MJ 126 (CMA 1981) (certified issue concerning admissibility of summary court-martial conviction).

As a supervisory court for the military criminal justice system, it is important for this Court to answer certified questions where decisions of this Court are being misinterpreted by appellate counsel and intermediate appellate courts. This is not an advisory opinion. The briefs demonstrate that this is a question “presented in an adversary context.” Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). The decision below calls for this Court to give concrete meaning to our decisions for the bench and bar. In fact, the duties required of SJAs “can be judicially identified and [their] breach judicially determined.” Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962).

Beaudin does not require that every multiplicity ruling be included in the SJA recommendation to the convening authority. As a practical matter, for an SJA to mention that the offenses were considered multiplicious for sentencing may be adverse to the interests of an accused. If a convening authority is informed that the accused has received a sentence based on the offenses being treated as multiplicious thereby limiting the maximum punishment, that convening authority may be less inclined to grant clemency. The requirement for the SJA to comment on the multiplicity question arises when the defense counsel first raises the issue as part of the defense submission to the convening authority. In effect, in Beaudin the SJA overruled the judge by indicating that the judge’s decision concerning multiplicity was erroneous. The misinterpretation of Beau-din has resulted in a needless-waste of resources at the post-trial and appellate level and calls out for clarification of our decision. As the concurring judges in Beaudin noted, the post-trial recommendation should not be encumbered with unnecessary requirements as interpreted by an intermediate appellate court. 35 MJ at 389 (Crawford, J., concurring in the result; and Gierke, J., concurring in part and in the result).

The certified question is answered in the negative.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed as to result only.

Judges COX and GIERKE concur.

That Article provides: "The Court of Military Appeals shall review the record in ... (2) all cases reviewed by a Court of Military Review which the Judge Advocate General orders sent to the Court of Military Appeals for review....” This section was formerly Article 67(b)(2), but was redesignated in Pub.L. No. 101-189, Div. A, Tide XIII, § 1301(a), 103 Stat. 1569 (1989).