20 M.J. 980 | U.S. Army Court of Military Review | 1985
OPINION OF THE COURT.
Appellant was convicted, pursuant to his pleas, of one specification of absence without leave (AWOL), eleven specifications of housebreaking, and seven specifications of larceny, in violation of Articles 86, 130 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 930 and 921 (1982) [hereinafter referred to as UCMJ], respectively.
After considering all competent evidence of record in mitigation, extenuation and aggravation, including a detailed stipulation of fact recounting the nature of the criminal ventures of appellant and his two co-actors, the military judge imposed a sentence of dishonorable discharge, forfeiture of all pay and allowances, reduction to Private (E-l), and confinement for fifteen years. The convening authority approved the sentence as adjudged, except that pursuant to the terms of the pretrial agreement,
Appellant asserts that the staff judge advocate’s post-trial recommendation is prejudicially deficient because it fails to discuss “the highly disparate” sentence received by a co-actor in a closely related case. See generally, United States v. Kent, 9 M.J. 836, 839 n. 9 (A.F.C.M.R.1980). Specifically, appellant directs our attention to the fact that Sergeant Charles J. Scozzari, Jr.,
In resolving this issue, we find, as a fact, that appellant’s criminal misconduct was substantially greater than that of Sergeant Scozzari’s. Not only was appellant a prime perpetrator of the offenses to which Sergeant Scozzari acted as a lookout, but appellant also committed offenses in which Sergeant Scozzari did not participate.
We are further concerned by appellant’s assertions that if a co-actor receives a highly disparate sentence in a closely related case, the staff judge advocate is required to discuss this fact in his post-trial recommendations. Article 60(d), UCMJ, 10 U.S.C. § 860(d), pertinently provides that “[t]he recommendation of the staff judge advocate ... shall include such matters as the President shall prescribe by regulation....” In implementation of this statute, Rules for Courts-Martial [hereinafter cited as R.C.M.] 1106(d)(3) prescribes the required contents of a staff judge advocate’s post-trial recommendations. A discussion of a co-actor’s sentence is not one of those required matters. R.C.M. 1106(d)(3)(A) — (E).
Who then is responsible for presenting this type of relevant information to the convening authority? We believe Congress intended this responsibility to rest primarily with the appellant’s defense counsel,
Notwithstanding waiver, had such a factual situation existed, we could still consider the co-actor’s “highly disparate” sentence when we independently reviewed appellant’s approved sentence for sentence appropriateness. See United States v. Olinger, 12 M.J. 458, 461 (C.M.A.1982); see also United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982).
Considering the gravamen and continuing pattern of appellant’s felonious misconduct, the circumstances surrounding these offenses, including appellant’s assignment to duty in a military police company, appellant’s apprehension in termination of his period of AWOL, his general technical aptitude area score of 109, his prior unblemished military record, the terms of his pretrial agreement plea and all
The findings of guilty and the sentence are affirmed.
. Pursuant to the pretrial agreement, initiated by appellant and accepted by the general court-martial convening authority, the convening authority agreed to disapprove any adjudged confinement in excess of five (5) years. Any other lawful punishment adjudged could be approved. It is a well-established and sound provision of law that “[ajbsent evidence to the contrary, accused’s own sentence proposal is a reasonable indication of its probable fairness to him.” United States v. Hendon, 6 MJ. 171, 175 (C.M.A. 1979), citing, United States v. Johnson, 41 C.M.R. 49, 50 (C.M.A.1969).
. Appellant and his accomplices were members of the 212th Military Police Company at the time of their criminal transgressions.
. For example, on the weekends of 2-4 June 1984 and of 3-4 July 1984, the appellant and Private (E-2) Raymond M. Booska participated in certain housebreakings and larcenies to which Sergeant Scozzari was not a party. Moreover, when the criminal investigation focused on appellant, he fled from Germany on 23 October 1984 to the United States and remained absent without authority until apprehended by the Lincoln, Maine, Police Department on 16 November 1984.
. The Air Force Court of Military Review concluded in United States v. Kent, 9 MJ. at 839 n. 9 that "[wjhere the issue of sentence comparison is reasonably raised, it is incumbent upon the staff judge advocate to fully discuss it in his post-trial review." Whatever viability this case may have enjoyed, it is no longer the law. Exercising his statutory authority under Article 36, UCMJ, 10 U.S.C. § 836, the President promulgated R.C.M. 1106, to implement the new streamlined procedures contained in the Military Justice Act of 1983. The only matters required to be contained in the staff judge advocate’s post-trial recommendations are those listed in R.C.M. 1106(d)(3). All other matters are optional under R.C.M. 1106(d)(4). Information concerning sentence disparity is an example of the type of information that the law no longer requires the staff judge advocate to address in his post-trial recommendation.
. The legislative history to the Military Justice Act of 1983, reflects the following:
[A]s a result of court decisions the staff judge advocate’s legal review has become a cumbersome document, consuming substantial time in preparation, and often too lengthy to be of any use to the convening authority. Regrettably, it can constitute an independent source of appellate litigation even when the underlying
case is free of error____
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The bills, however, authorize the accused to submit matters for the convening authority to consider prior to acting on the sentence.
(Emphasis added). Hearings on S. 2521 (The Military Justice Act of 1982) Before the Sub-comm. on Manpower and Personnel of the Senate Comm, on Armed Services, 97th Cong., 2nd Sess. 18 (1982) (statement of William H. Taft IV, General Counsel, Department of Defense) "The legislation ... authorizes the accused to submit matters for the convening authority to consider*983 prior to acting on the case.". S.Rep. No. 53, 98th Cong., 1st Sess. 7, see also id. at 18-19 (1983); Hearings on S. 974 (The Military Justice Act of 1983) Before the Subcomm. on Military Personnel and Compensation of the House Comm, on Armed Services, 98th Cong., 1st Sess. 40 (1983) (statement of William H. Taft IV, General Counsel, Department of Defense) H.R. Rep. No. 549, 98th Cong., 1st Sess. 15, 18-19 (1983), U.S.Code Cong. & Admin.News 1983, p. 2177.
. Normally when counsel elects not to submit matters on behalf of an accused, during the post-trial process, as hereinafter discussed, waiver will occur. But, in certain extremely grievous situations which we are not confronted with in the case at .bar, such an election may give rise to an issue of inadequacy of counsel. See generally, R.C.M. 502(d)(6), Discussion at (E)(iii) regarding the post-trial duty of defense counsel concerning the submission of matters to the convening authority.
. Under R.C.M. 1106(f)(4) counsel for the accused may submit information in writing for the convening authority's consideration, regarding any matter in the recommendation believed to be erroneous, inadequate, or misleading, and may comment on any other matter. An omission in the post-trial recommendation may be the subject of such a comment because it would constitute either a perceived inadequacy or "any other matter” within the meaning of the rule.
. The waiver doctrine will not apply to omissions and inaccuracies in the staff judge advocate’s review which constitute "plain error.” Based on the legislative history of the Military Justice Act of 1983, rarely will an omission or inaccuracy in the post-trial recommendation now rise to the level of plain error. "If the accused has any objections to the staff judge advocate’s recommendations, those objections must be raised in the response; failure to do so constitutes a waiver of the objection to the staff judge advocate’s recommendation and the effect of the recommendation on the convening authority’s action. If there is an objection to an error that is deemed to be prejudicial under Article 59 [UCMJ] during appellate review, it is the Committee’s intent that appropriate corrective action be taken by appellate authorities without returning the case for further action by a convening authority." (Emphasis added). S.Rep. No. 53, 98th Cong., 1st Sess. 21 (1983).