United States v. Yarbrough

36 M.J. 1071, 1993 CMR LEXIS 150, 1993 WL 87809
CourtU.S. Army Court of Military Review
DecidedMarch 23, 1993
DocketACMR 9201814
StatusPublished
Cited by9 cases

This text of 36 M.J. 1071 (United States v. Yarbrough) is published on Counsel Stack Legal Research, covering U.S. Army 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. Yarbrough, 36 M.J. 1071, 1993 CMR LEXIS 150, 1993 WL 87809 (usarmymilrev 1993).

Opinions

OPINION OF THE COURT

DELL’ORTO, Judge:

In accordance with his pleas, the appellant was found guilty, at a general court-martial composed of officer members, of eight specifications of wrongfully obtaining telephone services under false pretenses, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1982) [hereinafter UCMJ]. The appellant was sentenced to a bad-conduct discharge, confinement for twelve months, and total forfeitures. Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as provides for a bad-conduct discharge, confinement for six months, and forfeiture of two-thirds pay and allowances for six months.

The appellant asserts that the convening authority’s action in approving a fractional amount of forfeitures is improper because it fails to state the amount of forfeitures in whole dollars. Although not the preferred method of stating the amount of forfeitures, “[ejxpressing a sentence by a formula is simply not a jurisdictional error or defect affecting the legality of the sentence.” United States v. Riverasoto, 29 M.J. 594, 595 (A.C.M.R.1989). Nevertheless, stating the forfeitures in whole dollars is preferable because it, “simplifies administration of court-martial sentences and essentially removes the risk that an excessive forfeiture will be collected based on applying an erroneous pay scale or making an arithmetic mistake.” “Id.; accord United States v. Taulbee, 29 M.J 1014, 1015 (A.C.M.R.1990). We will use the preferred method in the decretal paragraph.

More troublesome to this Court, however, is the consistent lack of attention to detail that permeates the negotiation and implementation of the quantum portion of the pretrial agreement in this case and culminates in the errors we will address below. Only the military judge stands without blame in this matter. His attempts, however, to alleviate the confusion on the issue of sentence limitation were frustrated by multiple post-trial administrative errors.

As a harbinger of the type of errors that will be addressed infra, we note that early in the court-martial, the military judge chastised the trial counsel for an undated court member excusal memorandum purportedly signed by the division commander that improperly reflected his rank as major, as well as the last-minute negotiation of the contents of the stipulation of fact required by the pretrial agreement. Prior to commencement of the providence inquiry, the military judge had the trial counsel explain why the judge had erroneously been provided a draft charge sheet that failed to reflect pre-preferral changes to one of the specifications. The military judge supplemented this explanation by remarking, “this is not the first time that this has happened to me and that people need to start paying more attention.”

The trial defense counsel initiated the sequence of errors creating the issue in this case when she submitted the appellant’s offer to plead guilty to the convening authority with both erroneous and inconsistent sentence limitations.1 The convening [1073]*1073authority accepted the offer, presumably on the advice of the staff judge advocate. During the providence inquiry, the military judge perceptively noted that allowances could not be forfeited unless total forfeiture of pay was adjudged and approved. He also noted the internal inconsistency of having the convening authority agree, on the one hand, to approve no confinement in excess of six months, and, on the other, suspend any adjudged confinement that exceeded six months for twenty-four months.

The military judge twice clarified the provisions of the sentence limitation contained in the pretrial agreement. At the conclusion of the providence inquiry the following colloquy occurred:

MJ: During our discussions with counsel, do you agree that I correctly stated the sentence limitations contained in your pretrial agreement?
ACC: Yes, sir.
MJ: That is, no dishonorable discharge — that is, if the court were to adjudge a dishonorable discharge, the convening authority could approve a bad conduct discharge, that if confinement is adjudged, the convening authority can approve that confinement but must suspend any confinement in excess of 6 months for 24 months, and that depending on what type of forfeitures are imposed, the convening authority will not approve any forfeitures in excess of — , in essence, of excess of two-thirds pay per month for 6 months, and that you will be entitled to retain any allowances to which you may be entitled. Is that your understanding?
ACC: Yes, sir.

Later, after the court members had announced the sentence of a bad-conduct discharge, total forfeitures, and confinement for twelve months, the military judge, in an Article 39(a), UCMJ, session, had the following discussion with all parties concerning the impact of the pretrial agreement sentence limitation on the adjudged sentence:

MJ: Private Yarbrough, we earlier discussed the Appendix to your offer to plead guilty. Do you have a copy of that available?
DC: Yes, Your Honor.
MJ: Now as I interpret the agreement, keeping in mind everything we said earlier, the convening authority can approve the bad conduct discharge, may approve only so much of the forfeitures as provided for a forfeiture of two-thirds pay, and that would be $523.00 pay per month for 6 months, and may approve the confinement adjudged by the court, that is 12 months confinement, but must suspend all confinement in excess of 6 months for 24 months. That period of suspension starting at the time the convening authority takes action. Is that the way you interpret the agreement with the convening authority, Private Yarbrough?
ACC: Yes, sir.
MJ: Trial counsel, is that you [sic] understanding?
TC: Yes, Your Honor.
MJ: And I asked Private Yarbrough. Captain ... [G], is that your understanding as well?
DC: Yes, Your Honor.

Given the military judge’s efforts in clarifying the sentence limitation to everyone’s satisfaction, the matter should have been resolved at that point. It was not. The staff judge advocate’s recommendation misadvised the convening authority of the pretrial agreement sentence limitation.2 [1074]*1074The trial defense counsel failed to note this error in her post-trial submissions after having been served with a copy of the staff judge advocate’s recommendation. Finally, and not surprisingly, the convening authority’s action was erroneous.3

There are three errors in the convening authority’s action. First, the action approves only six months’ confinement, instead of the twelve months adjudged by the court and permitted under the terms of the pretrial agreement, as twice clarified by the military judge. Secondly, the action makes no provision for any period of confinement to be suspended, contrary to the express terms of the pretrial agreement. Each of these first two errors operates to the appellant’s benefit.

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Cite This Page — Counsel Stack

Bluebook (online)
36 M.J. 1071, 1993 CMR LEXIS 150, 1993 WL 87809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-yarbrough-usarmymilrev-1993.