United States v. Yanger

68 M.J. 540, 2009 CCA LEXIS 347, 2009 WL 3081468
U S Coast Guard Court of Criminal Appeals·Decided September 4, 2009·No. CGCMG 0222·Published·Cited by 5 cases

Opinion

MCCLELLAND, Chief Judge:

Appellant was tried by general court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of wrongfully using cocaine, in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a; and one specification of involuntary manslaughter, in violation of Article 119, UCMJ, 10 U.S.C. § 919. The military judge sentenced Appellant to reduction to E-l, forfeiture of all pay and allowances, confinement for six years, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged and suspended the execution of confinement in excess of forty-three months for eighteen months from the date the accused is released from confinement, pursuant to the terms of the pretrial agreement. The Convening Authority also credited Appellant with 105 days of pretrial confinement pursuant to United States v. Allen, 17 M.J. 126 (C.M.A.1984).

Before this Court, Appellant assigned two errors: (1) Appellant’s plea to involuntary manslaughter is improvident because the military judge failed to define the defense of self-defense and failed to explain the concepts of proximate cause and contributory negligence, and (2) Appellant is entitled to six additional days of credit for time spent in civilian confinement pursuant to United States v. Allen, 17 M.J. 126 (C.M.A.1984).

On 21 March 2008, this Court set aside the finding of guilty of involuntary manslaughter, agreeing that Appellant’s plea to manslaughter was improvident because the military judge failed to define the defense of self-defense, and affirmed the finding of wrongfully using cocaine. We also commented upon the second issue raised by Appellant, encouraging resolution of such an issue without the involvement of this Court. United States v. Yanger, 66 M.J. 534. The government appealed, and on 12 November 2008, the Court of Appeals for the Armed Forces (CAAF) set aside our decision and remanded, finding that we erred in setting aside the manslaughter conviction. United States v. Yanger, 67 M.J. 56.

Appellant now reiterates before this Court his previous assignments of error, adjusting for CAAF’s decision: (1) Appellant’s plea to involuntary manslaughter is improvident because the military judge failed to explain the concepts of proximate cause and contributory negligence, and (2) Appellant is entitled to six additional days of credit for time spent in civilian confinement pursuant to United States v. Allen, 17 M.J. 126 (C.M.A.1984). We summarily reject the first issue.

Appellant contends that he is entitled to credit for six days spent in civilian confinement between the charged offenses and his trial. This issue was never mentioned at trial. We do not view the claim for credit as waived by the failure to raise it at trial. It is the convening authority’s responsibility to ensure that credit for pretrial confinement is applied, United States v. Minyen, 57 M.J. 804, 806 (C.G.Ct.Crim.App.2002), although the military judge is normally expected to determine the amount of the credit, United States v. Gunderson, 54 M.J. 593, 594 (C.G.Ct.Crim.App.2000). Hence it is clear that a claim for credit is not untimely if submitted to the convening authority after trial. In United States v. Tardif, 55 M.J. 670 (C.G.Ct.Crim.App.2001), this Court entertained a claim for credit made for the first time upon request for reconsideration of our previously-issued decision under Article 66, UCMJ, 10 U.S.C. § 866. Allen credit has been called “administrative ramifications of pretrial confinement.” United States v. Balboa, 33 M.J. 304, 306 (C.M.A.1991). We see no reason to preclude consideration of the issue inasmuch as Appellant remained confined at the time the issue was raised. We do not reach the question of whether we should or would consider it if an appellant had been released from confinement before the issue was raised.

We have determined the relevant facts from the original record of trial, Appellant’s [542]*542post-trial affidavit, and evidence provided by the Government and Appellant following our order of 28 May 2009. Charges against Appellant under Articles 86 and 112a, UCMJ, 10 U.S.C. §§ 886 and 912a, were initially preferred on 23 March 2006. These charges were withdrawn and dismissed on 14 July 2006. New charges against Appellant under Articles 86, 112a, and 119, UCMJ, were preferred on 26 September 2005, alleging offenses on or before 16 March 2005. Appellant was arrested for felony hit-and-run by the Hampton, Virginia police on Wednesday, 24 August 2005. He was confined for six days upon that charge. On 18 October 2005, he was found guilty of reckless driving, while the hit-and-run charge was not prosecuted. He was sentenced to confinement for six months, suspended for two years. The documentary evidence concerning the matter gives no indication of credit for his confinement.

United States v. Allen, 17 M. J. 126 (C.M.A. 1984), held that Department of Defense (DoD) Instruction 1325.4 dated October 7, 1968, required credit for pretrial confinement against any sentence to confinement, as provided for civilian federal prisoners by 18 U.S.C. 3568.1 The current DoD directive, containing essentially the same provision in paragraph 6.3.1.5. as that relied on by the court in Allen, is DoD Instruction 1325.7 dated 17 July 2001. The corresponding federal statute is now 18 U.S.C. 3585(b), which provides:

Credit for Prior Custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.

Appellant urges that he is due credit under either (1) or (2) of 18 U.S.C. 3585(b). It is clear from the facts set forth above that he is, indeed, due six days of credit under (2) of 18 U.S.C. 3585(b).2

We assume the Convening Authority was aware of the six days of civilian confinement, but was unaware that it might warrant credit against Appellant’s court-martial sentence.

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United States v. Yanger, 68 M.J. 540, 2009 CCA LEXIS 347, 2009 WL 3081468 (uscgcoca 2009).

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