United States v. Schaller

9 M.J. 939, 1980 CMR LEXIS 526
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedAugust 25, 1980
DocketNCM 79 0900
StatusPublished
Cited by2 cases

This text of 9 M.J. 939 (United States v. Schaller) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Schaller, 9 M.J. 939, 1980 CMR LEXIS 526 (usnmcmilrev 1980).

Opinion

CEDARBURG, Chief Judge:

Appellant pleaded guilty and was found guilty by a general court-martial military judge of two specifications of wrongfully presenting false claims against the United States, in amounts of $3,831.14 and 359.00, in violation of Article 132, Uniform Code of Military Justice, 10 U.S.C. § 932. The military judge imposed a sentence consisting of a bad-conduct discharge, forfeiture of $300.00 pay per month for 24 months and reduction to pay grade E-4. The convening authority approved only the bad-conduct discharge and reduction to pay grade E-4.

Appellant assigns three alleged errors. We find no prejudicial error and affirm.

Appellant contends that:

I
THE MILITARY JUDGE ERRONEOUSLY FAILED TO ASCERTAIN WHETHER APPELLANT FULLY UNDERSTOOD THE MAXIMUM SENTENCE APPENDIX TO THE PRETRIAL AGREEMENT, AND PARTICULARLY THE PROVISION THEREOF TO THE EFFECT THAT HIS FAILURE “IN BAD FAITH” TO REQUEST APPELLATE LEAVE WOULD VOID THE PRETRIAL AGREEMENT.
II
THE MILITARY JUDGE ERRED IN NOT STRIKING AS CONTRARY TO PUBLIC POLICY THE PRETRIAL AGREEMENT PROVISION WHICH PURPORTED TO PERMIT THE CONVENING AUTHORITY TO IGNORE HIS OBLIGATIONS UNDER THE AGREEMENT IF APPELLANT RE-
FUSED “IN BAD FAITH” TO REQUEST APPELLATE LEAVE.
Ill
AN UNSUSPENDED BAD-CONDUCT DISCHARGE IS INAPPROPRIATELY SEVERE IN THIS CASE.

I

The portion of the pretrial agreement to which appellant’s assignments of error I and II refer provides as follows:

Further, if a punitive discharge is adjudged, the accused will, without delay, submit a properly prepared request for appellate leave. Said request for appellate leave will be approved. If a punitive discharge is adjudged but the accused, in bad faith, refuses to submit a request for appellate leave, the convening authority may take his action on this case without being bound by the provisions of this pretrial agreement.

The military judge questioned appellant in regard to the pretrial agreement in general, as follows:

MJ: Did the idea for the pretrial agreement originate with you and your Defense Counsel?
ACC: Yes, sir.
MJ: Were you forced or coerced in any manner to enter into this agreement? ACC: No, sir.
MJ; Prior to signing it, did you and your Defense Counsel discuss each of the terms of the agreement?
ACC: Yes, sir.
MJ: Did you fully understand the meaning of each of the. terms of the agreement before you signed it?
ACC: Yes, sir.
MJ: Take time now to read each paragraph in the agreement and tell me if there’s any provision which you do not now understand or are the least bit uncertain about.
RPTR NOTE: The accused read over the document.
ACC: Yes, sir, I understand it.
[941]*941MJ: Very well. Do you have any questions concerning any of the provisions? ACC: No, sir.

(R.9-10).

The military judge ensured that prior to commencement of the discussion of the agreement the sentencing appendix would be masked until after the pleas either had been accepted or rejected and findings and sentence rendered. The military judge then proceeded to discuss each condition of the agreement, with the exception of the maximum sentence which the convening authority had committed himself not to exceed; appellant does not assert that discussion was inadequate. After acceptance of the pleas, findings were entered, and the sentence imposed. The military judge thereafter made an additional inquiry regarding the Maximum Sentence Appendix, upon which appellant bases his assertion of inadequate explication. The discussion was as follows:

MJ: .. . .You may be seated. I am now examining Appellate Court Exhibit I, the pretrial agreement. I am removing the piece of paper that covered the sentence agreement. Paragraph one reads: “Punitive discharge as adjudged, but if a dishonorable discharge is adjudged only a bad conduct discharge will be approved. Further, if a punitive discharge is adjudged, the accused will, without delay, submit a properly prepared request for appellate leave. Said request for appellate leave will be approved. If a punitive discharge is adjudged but the accused, in bad faith, refuses to submit a request for appellate leave, the Convening Authority may take his action on this case without being bound by the provisions of this pretrial agreement.” Since I have adjudged a bad conduct discharge, the Commanding General can approve the bad conduct discharge if he chooses. Furthermore, if you- However, if you refuse to submit a request for appellate leave, in bad faith, apparently according to this agreement, the convening authority may not be bound by the terms of it. However, he can’t approve more than a bad conduct discharge in any event. Second, “Confinement, or restriction and/or hard labor without confinement to be approved.” I didn't adjudge any confinement, so there will be no-he can’t possibly approve any confinement. Third, “Forfeiture or fine to be approved, but all forfeitures or fines to be suspended for a period of twelve months from the date of the convening authority’s action.” I have adjudged a forfeiture of $300.00 a month for twenty-four months which he can approve. However, in accordance with this, he must suspend it, in accordance with the terms of the pretrial agreement. “Reduction in rank to be approved, but reduction below pay grade E-3 to be suspended for a period of twelve months from the date of the convening authority’s action.” Well, I reduced you only to pay grade E-4, so that doesn’t apply. Does-Staff Sergeant SCHALLER, does my interpretation of this, and also I am speaking to Captain [W], does my interpretation of this pretrial agreement comport with yours?
DC: Yes, Your Honor. I believe, only for the record on the reduction, I believe the convening authority can approve reduction to E — 4, if I-
MJ: That is correct. He can approve the reduction only to E-4.
DC: Right, Your Honor.

(R.37).

The military judge propounded a question whether there was concurrence with his interpretation of the agreement, including a recitation of the provision that if appellant refused in bad faith to submit a request for appellate leave the convening authority would not be bound by the agreement. The question was clearly and specifically addressed both to appellant and his counsel. Counsel immediately affirmatively responded but with an amplification regarding the limitation on reduction in grade. The military judge, however, did not receive any specific response from appellant in the context of the amplifying response of the defense counsel. Appellate defense counsel now argues that the military judge never [942]*942received appellant’s personal assurance of understanding of the Maximum Sentence Appendix.

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Bluebook (online)
9 M.J. 939, 1980 CMR LEXIS 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-schaller-usnmcmilrev-1980.