United States v. Smith

37 M.J. 583, 1993 CMR LEXIS 176, 1993 WL 143820
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedApril 9, 1993
DocketNMCM 91 0872R
StatusPublished
Cited by5 cases

This text of 37 M.J. 583 (United States v. Smith) 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. Smith, 37 M.J. 583, 1993 CMR LEXIS 176, 1993 WL 143820 (usnmcmilrev 1993).

Opinion

ORR, Senior Judge:

This case has been returned to us for the continuation of our review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866, following an earlier decision in which we returned the record of trial for a new staff judge advocate’s or legal officer’s post-trial recommendation because the earlier recommendation was prepared by someone who was not a commissioned officer. See United States v. Smith, 34 M.J. 894 (N.M.C.M.R.1992). Unlike the two earlier recommendations, however, a copy of the valid one, prepared by a commissioned officer, was not forwarded to the appellant as required by Rule for Courts-Martial (R.C.M.) 1106(f)(1) because the appellant had “been placed on appellate leave in Aiken, South Carolina.” Legal Officer’s letter of 6 July 1992. Instead, the accused’s copy was served on the appellant’s trial defense counsel. Id. The failure to attempt actual service on the appel[585]*585lant is the basis for the first of the appellant’s three assignments of error.1

Consistent with his pleas, the appellant was convicted of three unauthorized absences and of using marijuana in violation, respectively, of Articles 86 and 112a, UCMJ, 10 U.S.C. §§ 886, 912a. He was sentenced by the military judge sitting alone to confinement for 75 days, the forfeiture of $400.00 pay per month for 2 months, and a bad-conduct discharge. That sentence did not exceed the limits of the pretrial agreement that had been negotiated in this case, and the convening authority approved the sentence as adjudged.

I.

As to the first assigned error, R.C.M. 1106(f)(1) states, in pertinent part: “If it is impracticable to serve the recommendation on the accused for reasons including but not limited to the transfer of the accused to a distant place ... the accused’s copy [of the post-trial recommendation] shall be forwarded to the accused’s defense counsel____” In this case, the convening authority appears to have been located in Gulfport, Mississippi, at the time the recommendation was prepared. The appellant had executed an appellate rights statement, which is attached to the record of trial and marked as Appellate Exhibit III, in which he stated he could be contacted at a specific mailing address in South Carolina. Rather than mailing a copy to the appellant in South Carolina, however, the appellant’s copy was forwarded to his defense counsel in Rota, Spain, where the case was originally tried. To invoke the “distant place” exception to allow substituted service on the appellant’s counsel vice the appellant, himself, in this situation highlights the absurdity of substituted service when the appellant appears to be within reach of the U.S. Postal Service. We conclude that it is not impracticable to send an accused his own copy of the post-trial recommendation when both the convening authority and the accused are located in the United States and the accused, as part of the record of trial, has provided a mailing address where he purports to be. Consequently, it was error in this case not to have sent the appellant his own copy.

The next question, however, is whether the appellant has suffered any prejudice as a result of this error. United States v. Watkins, 35 M.J. 709, 714-715 (N.M.C.M.R.1992). As in Watkins, the appellant does not suggest that he actually had matters to submit or that he was precluded from doing so when the convening authority acted before he had received a copy of the post-trial recommendation. We note that the trial in this case took place on 23 November 1990 and that the appellant failed to submit any matter under R.C.M. 1105 in response to either of the first two post-trial recommendations (which we subsequently held to be invalid because they were submitted by an individual who was not a commissioned officer) even though both indicate a copy of each respective recommendation was provided to the appellant. The third, and valid, recommendation [586]*586was submitted on 6 July 1992, and the convening authority acted on 30 July 1992 after receiving the defense counsel’s signed receipt, dated 14 July 1992, for both the defense counsel’s and the appellant’s copies of the recommendation. In addition to not sending any R.C.M. 1105 matters after the earlier recommendations were sent to him, the appellant’s defense counsel signed an affidavit on 22 November 1991, a year after trial, in which he stated: “[Throughout my dealings with the accused it was portrayed to me that the most important thing for him [the appellant] was to get the court-martial proceedings completed so he could return home to his family as soon as possible and end the military chapter of his life.” Attachment III to Government’s Motion to Attach Documents of 10 December 1991.

Consequently, we conclude that the appellant has suffered no prejudice. United States v. DeGrocco, 23 M.J. 146 (C.M.A. 1987); Watkins; United States v. Skaar, 20 M.J. 836 (N.M.C.M.R.1985) (en banc); cf. United States v. Pena, 22 M.J. 281 (C.M.A.1986), cert. denied, 479 U.S. 1030, 107 S.Ct. 875, 93 L.Ed.2d 829 (1987) (failure to specify deficiency in post-trial review renders harmless failure to serve defense counsel with copy of review); United States v. Smart, 21 M.J. 15 (C.M.A.1985) (failure of defense counsel to specify defects in post-trial review waives right to timely service of review); United States v. Barnette, 21 M.J. 749 (N.M.C.M.R.1985) (absent claim that post-trial review was incorrect, deficient or misleading, failure to serve defense counsel was harmless). But cf. United States v. Moseley, 35 M.J. 481 (C.M.A.1992) (failure to serve post-trial review on defense counsel deprived accused of counsel at important stage of proceedings and required re-doing that stage).

II.

In our earlier consideration of this case, we questioned whether the appellant’s guilty pleas to two of the three unauthorized absence offenses were provident when the appellant revealed in the course of that inquiry that, after leaving his work place without authorization on two separate occasions, he returned to his unit’s barracks where he remained for one period of about 37 days and another of about 24 days by hiding, for the most part, in another servicemember’s room. In United States v. Wargo, 11 M.J. 501 (N.C.M.R. 1981), we held that Wargo could not be an unauthorized absentee from his unit, the Naval Station, San Diego, when he remained aboard that installation throughout his alleged absence by sleeping in his assigned barracks and otherwise being in the installation library because he had in fact never left his unit. Here, the appellant was assigned to a unit that was essentially a tenant activity aboard the naval installation at Gulfport, Mississippi. He stated that on both occasions, after leaving his work place with his unit aboard the installation, he went to his barracks, which he described as part of his unit, where he attempted to stay out of sight until he turned himself in to the Officer-of-the-Day. Record at 10-12, 13-14.

As we pointed out in Wargo, the problem is with the inception of the absence.

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Bluebook (online)
37 M.J. 583, 1993 CMR LEXIS 176, 1993 WL 143820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-usnmcmilrev-1993.