United States v. Thompson

43 M.J. 703, 1995 CCA LEXIS 321, 1995 WL 730275
CourtUnited States Air Force Court of Criminal Appeals
DecidedNovember 22, 1995
DocketACM 31140
StatusPublished
Cited by6 cases

This text of 43 M.J. 703 (United States v. Thompson) is published on Counsel Stack Legal Research, covering United States Air Force 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. Thompson, 43 M.J. 703, 1995 CCA LEXIS 321, 1995 WL 730275 (afcca 1995).

Opinion

[703]*703OPINION OF THE COURT

PEARSON, Senior Judge.

Court members convicted appellant of using methamphetamine based on a positive urinalysis, and sentenced him to a bad-conduct discharge, 4 months confinement, and forfeiture of $200 pay per month for 4 months. He contends the military judge erred in answering a court member’s question during sentencing and the posh-trial processing of his case was flawed. We agree as to the second issue and grant relief by disapproving the forfeiture. In doing so, we hold that the convening authority approves the sentence reported to him in the post-trial staff judge advocate’s recommendation, including any addendum, absent compelling evidence to the contrary. See R.C.M. 1106.

SENTENCING

Background

In sentencing, appellant presented evidence that his young son would undergo surgery in weeks. The child’s doctor recommended that appellant be present for the surgery and for two weeks thereafter. During argument, defense counsel reminded the members of this evidence and suggested a sentence of hard labor without confinement instead of “prison.” See R.C.M. 1003(b)(7).

After the members deliberated for awhile, the President of the court submitted the following question to the military judge concerning confinement:

Are there procedures that allow a prisoner to apply for a humanitarian or temporary release to take care of family emergencies and that sort of thing, and an appropriate authority determines that is okay or approves it?

Over appellant’s objection, the judge replied that “the Convening Authority has discretion to defer confinement.” See R.C.M. 1101(c).

Appellant contends the military judge improperly instructed on a collateral matter and violated Rule for Courts-Martial (R.C.M.) 1005(e)(3) by telling the members they could rely on future mitigating action by the convening authority. We disagree under the circumstances of this case.

As a general rule, courts-martial should determine the appropriateness of a particular punishment without regard to its collateral consequences. United States v. Quesinberry, 12 U.S.C.M.A. 609, 31 C.M.R. 195 (1962); United States v. Lee, 43 M.J. 518 (A.F.Ct.Crim.App.1995). Even so, the Court of Appeals for the Armed Forces has held that “it is certainly not error for the judge to answer the members’ questions [about a collateral consequence] if an accused agrees United States v. Griffin, 25 M.J. 423, 424 (C.M.A.) (emphasis in original), cert, denied, 487 U.S. 1206, 108 S.Ct. 2849, 101 L.Ed.2d 886 (1988). The twist here, is that appellant did not agree, but strenuously objected. However, we still conclude appellant is not entitled to relief.

Discussion

We review a military judge’s decision to answer a court member’s question about the collateral consequences of a sentence using an abuse of discretion standard. See United States v. Henderson, 29 M.J. 221 (C.M.A.1989). We conclude the military judge did not abuse her discretion in this case when she answered the members’ question about deferment of confinement, a collateral administrative aspect, or consequence, of that punishment.

A party is responsible for the reasonable inferences one may make of the sentencing evidence it presents. Cf. United States v. Hallum, 31 M.J. 254 (C.M.A.1990) (defense evidence opened door to uncharged misconduct rebuttal). Here, we find one — perhaps the biggest — reasonable inference to draw from the evidence about the child’s surgery is the court should not confine appellant past February 13th so he could be present as the doctor recommended. The military judge astutely recognized the importance of giving guidance on the precise issue appellant raised so the members could make an informed decision on whether to confine appellant and for what length of time. We commend her decision; we do not condemn it.

Finally, we note the interesting distinction between judge alone and members sentencing when applying the collateral conse[704]*704quences doctrine. If this case had been tried before a military judge sitting alone, the judge would have known about the authority to defer confinement, just like judges are aware of most collateral consequences of any sentence. Although judges are aware of the consequences of the sentences' they fashion, the collateral consequences doctrine forces us to let court members flounder along in ignorance unless they ask the question. We should be leery to fault a judge who answers the mail. See United States v. Boone, 42 M.J. 308, 314 (1995) (Sullivan, C.J., dissenting).

POST-TRIAL PROCESSING

Appellant argues the SJA’s addendum did not list appellant’s clemency submissions as attachments or state the convening authority “must consider” them, fool-proof methods we established to comply with post-trial processing requirements. See United States v. Foy, 30 M.J. 664 (A.F.C.M.R.1990) (en banc); see also United States v. Crawford, 34 M.J. 758 (A.F.C.M.R.) and cases cited therein, pet denied, 36 M.J. 202 (C.M.A.1992). Appellant also argues a staff summary sheet the SJA used to forward the post-trial documents to the convening authority contained new matter which was not served on appellant for comment. See R.C.M. 1106(f)(7). We agree the post-trial processing of appellant’s case was flawed but not exactly in the context appellant advances.

The Addendum,

Although the SJA’s addendum did not list appellant’s clemency submissions as attachments, it did specifically detail them in the first paragraph. However, neither the initial SJA recommendation nor the subsequent addendum contained the magic words “must consider.” See United States v. Komorous, 33 M.J. 907, 912 (A.F.C.M.R.1991). We do not find the omissions fatal in this case. Appellate government counsel submitted a copy of the SJA’s staff summary sheet forwarding the case, including appellant’s submissions, to the convening authority. The staff summary sheet bears the convening authority’s signature. Consequently, we are convinced the convening authority considered appellant’s submissions before taking action on the case. See Crawford.

The Staff Summary Sheet

Any document which the SJA uses to supplement the post-trial recommendation must be served on the defense counsel when it contains new matter. “Any document” includes an administrative staff summary sheet which summarizes and forwards the record with accompanying post-trial documents. United States v. Leslie, 16 M.J. 714 (A.F.C.M.R.1983). “New matter” includes facts and information from outside the record. Komorous, 33 M.J. at 910.

In his post-trial clemency submission, appellant argued for a reduction in confinement. The SJA opposed clemency and stated in his forwarding staff summary sheet that appellant’s scheduled release date from confinement was May 6, 1994. The SJA did not serve defense counsel with a copy of the staff summary sheet.

According to appellant’s clemency submission, he received a one-day deferment of confinement to attend his son’s surgery. Taking the deferment into account, the reported scheduled release date would result in appellant’s confinement for a period shorter than the adjudged 4 months.

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43 M.J. 703, 1995 CCA LEXIS 321, 1995 WL 730275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thompson-afcca-1995.