United States v. Sherrod

13 M.J. 662, 1982 CMR LEXIS 1032
U.S. Navy-Marine Corps Court of Military Review·Decided March 31, 1982·No. NMCM 82 0155·Published

Opinion

PER CURIAM:

Appellant, pursuant to his pleas, was convicted at a general court-martial bench trial of several offenses arising from a course of conduct in which he and a co-actor created for accused a false military identification card in the name of one Arthur Lloyd Wright, thereafter utilizing the identification card to utter a U. S. Treasury check. The check had been issued for payment to the order of the aforesaid Wright currency in the amount of $293.00 but had been fraudulently altered by appellant’s co-actor to require payment of $1,993.00. Appellant subsequently escaped from the custody of security police forces after being apprehended by them for the above offenses. Appellant was sentenced to be confined at hard labor for one year, to forfeit all pay and allowances for a like period, to be reduced to the lowest enlisted pay grade, E-1, and to be discharged from the naval service with a bad-conduct discharge.

Appellant’s pleas, having been accepted by the military judge, gave effect to a pretrial agreement negotiated by appellant and both his individual and his detailed military defense counsel. That agreement provided, inter alia, for the mitigation of a dishonorable discharge, if adjudged, to a bad-conduct discharge and the approval of all other sentencing provisions as adjudged, while further providing that any period of confinement adjudged in excess of eight months would be suspended for the term of [663] confinement actually served plus one year thereafter. In taking his action, the convening authority not only complied with the terms of this agreement but suspended for the agreed probationary term not only confinement in excess of six months but those forfeitures adjudged in excess of six months as well. Appellant now assigns two errors; we reject them and affirm.

I

NOTWITHSTANDING THE SERIOUS NATURE OF THE OFFENSES, IN VIEW OF THE APPELLANT’S DESIRE TO REMAIN ON ACTIVE DUTY (R. 36), HIS PLEAS OF GUILTY, THE MILITARY JUDGE’S RECOMMENDATION FOR SUSPENSION OF THE BAD-CONDUCT DISCHARGE (R. 39), THE APPELLANTS [SIC] NEAR HONORABLE COMPLETION OF HIS ENLISTMENT AND THE ABUNDANT FAVORABLE EVIDENCE IN EXTENUATION AND MITIGATION (DEFENSE EXHIBITS A-L), AN UNSUSPENDED BAD-CONDUCT DISCHARGE IS INAPPROPRIATE AS A MATTER OF FACT, UNIFORM CODE OF MILITARY JUSTICE, ARTICLE 66(c), 10 U.S.C. § 866(c)

Despite the supplications of appellant’s mother, his fiancee, his intended mother-in-law, a friend, and two shipmates, as well as the appellant himself, that he be forgiven his one mistake and given an opportunity to show again his worthiness to serve in the United States Navy, the offenses to which appellant plead guilty warrant his punitive discharge. In totality, the sentence is appropriate as a matter of fact; Article 66(c), Uniform Code of Military Justice; is neither so disproportionate or unfair nor such an abuse of the court’s sentencing power as to cry out for additional sentence equalization; United States v. Usry, 9 M.J. 701 (NCMR 1980); and is certainly within the limits of what the appellant, with the aid of two capable counsel, concluded to be a fair sentence. United States v. Hendon, 6 M.J. 171, (CMA 1979); United States v. Johnson, 19 U.S.C.M.A. 49, 41 C.M.R. 49 (1969).

II

THE RECORD OF TRIAL FAILS TO ESTABLISH WHETHER INDIVIDUAL MILITARY COUNSEL (R.9) WAS SERVED WITH OR OTHERWISE AFFORDED THE OPPORTUNITY TO COMMENT ON THE STAFF JUDGE ADVOCATE’S REVIEW. SEE UNITED STATES V. CLARK, 11 M.J. 70 (CMA 1981). CF. UNITED STATES V. LANGLEY, NO. 80 0930 (NCMR 24 MARCH 1981).

Citing United States v. Clark, 11 M.J. 70 (CMA 1981), appellant urges this Court to hold appellant to have been deprived of his post-trial rights under United States v. Goode, 1 M.J. 3 (CMA 1975), where the staff judge advocate served his review upon appellant’s detailed military counsel rather than his individual military counsel. Clark, supra, is not dispositive of this issue, however, for three reasons. First, whereas the civilian counsel in Clark, supra, had conducted an active representation of the accused at all stages of his trial without the record showing a similar active participation by the assigned trial defense counsel, service of the review in the case sub judiee was upon one of two military defense counsel who both actively participated in appellant’s defense.

Second, Specialist Five Clark’s civilian attorney stated by affidavit that he fully expected to fulfill his contractual, moral, and ethical obligations by preparing the Goode response himself but had been deprived of that right by the Government. Appellate defense counsel avers no such similar expectation of the individual military counsel in the case sub judice. To the contrary, appellant’s appellate rights statement completed on his final day of trial indicates appellant’s detailed defense counsel would be the counsel to examine the staff judge advocate’s review for error.

Third, both military defense counsel involved in this case are located in the same Naval Legal Service Office command [664] whereas the attorneys in Clark, supra, conducted their practices an ocean and a continent apart. Not even the geographic separation of counsel which has been discounted by this Court as excuse for a lack of communication and cooperation between defense partners can be found to give even limited support to appellant’s cause. United States v. Langley, No. 80 0930 (NCMR 24 March 1981).

Finally, this Court would look for guidance to the procedures suggested by Chief Judge Everett in United States v. Robinson, 11 M.J. 218, 224 (CMA 1981), to stem the proliferation of problems involving the service of staff judge advocate reviews on the wrong attorney. The two suggestions applicable to the circumstances found in the case sub judice first would have the military judge, when confronted with a trial in which two defense counsel have appeared, seek to establish on the record at the conclusion of the trial which attorney will have primary responsibility for preparing any Goode responses. Although Robinson, supra, was decided more than three months prior to this case, the suggested inquiry by the military judge was not accomplished.

Free access — add to your briefcase to read the full text and ask questions with AI

United States v. Sherrod, 13 M.J. 662, 1982 CMR LEXIS 1032 (usnmcmilrev 1982).

13 M.J. 662 (United States v. Sherrod) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Johnson
19 C.M.A. 49 (United States Court of Military Appeals, 1969)
United States v. Goode
23 C.M.A. 367 (United States Court of Military Appeals, 1975)
United States v. Hendon
6 M.J. 171 (United States Court of Military Appeals, 1979)
United States v. Usry
9 M.J. 701 (U.S. Navy-Marine Corps Court of Military Review, 1980)
United States v. Clark
11 M.J. 70 (United States Court of Military Appeals, 1981)
United States v. Robinson
11 M.J. 218 (United States Court of Military Appeals, 1981)