UNITED STATES, Aрpellee, v. Jason L. ROCK, Private First Class, U.S. Army, Appellant.
No. 98-0947. Crim.App. No. 9700192.
U.S. Court of Appeals for the Armed Forces.
Argued April 7, 1997. Decided Sept. 30, 1999.
52 M.J. 154
COX, C.J., delivered the opinion of the Court, in which CRAWFORD and GIERKE, JJ., joined. EFFRON, J., filed an opinion concurring in part and in the result. SULLIVAN, J., filed an opinion concurring in the result.
Chief Judge COX, delivered the opinion of the Court.
I
In this case, the military judge awarded appellant 240 days (8 months) of credit against the adjudged sentence to confinement, as a result of pretrial conditions on appellant‘s liberty not amounting to confinement. Appellant had pleaded guilty pursuant to a pretrial agreement that limited confinement to 3 years (36 months).1 The military judge, sitting alone as а general court-martial and not then knowing the terms of the pretrial agreement, in effect sentenced appellant to 61 months’ confinement, which he then reduced to 53 months as a result of the credit.2
In accordance with the pretrial agreement, the convening authority approved cоnfinement of 3 years, less 3 days’ credit for pretrial confinement actually served by appellant. The Court of Criminal Appeals affirmed in an unpublished opinion.
Appellant now contends that the military judge erred in applying the credit to the adjudged sentence, rather than to the limitation established by the рretrial agreement. 51 MJ 130, 131 (1998). In other words, appellant contends the 8 months of pretrial credit should have reduced the 36 months to 28 months, rather than reducing the 61 months to 53 months. We now hold that neither the military judge nor the convening authority erred, and we affirm.
II
Appellant was tried in Baumholder, Germany, on January 27, 1997, for offensеs committed between November 1995 and August 1996. In limine, he moved to dismiss the Charges and specifications for lack of a speedy trial. See
After conducting an evidentiary hearing and considering the various stipulations of fact and mеmoranda of law submitted by the parties, the military judge denied the motion to dismiss for lack of a speedy trial. In addition, the judge ruled that “the conditions on liberties imposed by the company commander did not amount under the totality of the circumstances to restriction tantamount to confinement.” Further, the judge concluded that there was “no intent on the part of the company commander and the first sergeant to punish the accused prior to trial.” Indeed, the military judge “commend[ed] the commander and the first sergeant for their actions to ameliorate the accused‘s situation while he [appellant] was pending trial.” (Id.)
Nevertheless, “considering as a whole, the accused being deprived of his right to train as an 11 mike [his military occupational specialty], the accused‘s service in a squad which basically performed details, and the conditions on the accused‘s liberty during the period of time,” the military judgе found that appellant “was in fact punished [pretrial], as that term is used in Article 13.” Further, the judge ruled that “the period of such
There are nо issues before us concerning the correctness of the judge‘s rulings on speedy trial, the conditions of and effects on appellant‘s liberty, or the ratable calculation of credit. The only issue before us relates to the point from which the credit against confinement should be applied.
III
The issue of credit for pretrial confinement and/or punishment has a long history in military law. From its inception,
However, in United States v. Allen, 17 MJ 126 (CMA 1984), we construed a Department of Defensе Instruction as requiring, consistent with federal law, day-for-day credit for legal pretrial confinement. Commonly referred to as “Allen” credit, this apparently has not been incorporated into the Manual for Courts-Martial, although credit for illegal pretrial confinement has been incorporated.
Many opinions over the years have addressed whether restriction or other “conditions on liberty” were equivalent, or “tantamount,” to confinement. E.g., United States v. King, 30 MJ 59 (CMA 1990); United States v. Guerrero, 28 MJ 223 (CMA 1989); United States v. Facey, 26 MJ 421 (CMA 1988); United States v. Bradford, 25 MJ 181 (CMA 1987); United States v. Burrell, 13 MJ 437 (1982); United States v. Powell, 2 MJ 6 (CMA 1976); United States v. Schilf, 1 MJ 251 (CMA 1976).
In United States v. Pierce, 27 MJ 367 (CMA 1989), the accused accepted nonjudicial punishment for an offense, but was later court-martialed for the same and other offenses. We rejected Pierce‘s contention that the imposition of nonjudicial punishment barred the court-martial charge, but we held, on due process grounds, that servicemembers had to “be given complete credit for any and all nonjudicial рunishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe.” Id. at 369. “Pierce” credit has likewise not received Manual recognition.
In United States v. Suzuki, 14 MJ 491 (CMA 1983), we sustained a military judge‘s award of more than day-for-day credit for illegal pretrial confinement amounting to punishment. Cf. United States v. Cruz, 25 MJ 326 (CMA 1987) (rehearing on sentence ordered so that prior punishment could be considered by court-martial, where accused had been subjected to public pretrial humiliation by the command). “Suzuki” credit, a military judge‘s authority to grant more than day-for-day credit in unusual cases, is now explicitly recognized in the Manual. See
IV
None of these cases involving credit against confinement discuss the point from which the sentence is to be reduced by the credit. The answer, however, is quite simple. Pretrial agreements are a product of a bargaining process between an accused and a convening authority. United States v. Acevedo, 50 MJ 169, 172 (1999). These agreements operate separаtely and apart from sentences of courts-martial, and often they override lawfully adjudged sentences. Military judges, however, are not parties to pretrial agreements. See
Where there is no pretrial agreement in effect, of course, the credit can only be applied against the adjudged sentence; there is no other possibility. The adjudgеd sentence becomes the maximum punishment. Any and all credits against it must reduce it to that extent. Here, of course, the military judge did just that.
The situation is essentially the same, moreover, where the adjudged sentence to confinement turns out to be less than the sentence cap negotiated in a pretriаl agreement. Again, the adjudged sentence becomes the maximum punishment; the pretrial agreement, being higher, does not operate. Any and all credits can only be applied against the adjudged (lesser) sentence.
Where there is a pretrial agreement that sets out a lesser limitation than thаt adjudged by the court-martial, however, a different result obtains. Where the agreement establishes a maximum confinement, for example, that is less than that adjudged by the court-martial, that lesser limit becomes the maximum total confinement that the accused lawfully can be made to serve. Where portions of that confinement have already been served, actually or constructively, the credit applies against the agreement, otherwise the accused‘s sentence will exceed the maximum lawful limit.
Thus the question here is, what did the agreement provide? It provided that the convening authority would “[d]isaрprove any confinement adjudged in excess of three (3) years.” (Emphasis added.) The period of time credited by the military judge, however, did not involve confinement, nor was it tantamount to confinement. Therefore, the period in question was not affected by the agreement, and neither the judge nor the сonvening authority erred in not crediting the time against the agreement limitation.
Servicemembers are not entitled to sentence credit against confinement for any and all time during the pendency of court-martial charges, even if restraints on liberty which are not tantamount to confinement are impоsed. Such periods of restraint, however, can often be useful to the defense in mitigation. Here, for example, the defense was successful in convincing the military judge to reduce the adjudged sentence due to the restraint. No one could have known whether the adjudged sentence would turn out to be grеater or lesser than the pretrial agreement. Had the adjudged sentence been lesser than the agreement, the pretrial restraint would have been effective in substantially reducing appellant‘s sentence.
Furthermore, the fact of pretrial restraint can be a useful bargaining tool for the defense in negotiating an acceptable pretrial agreement: “How about disapproving confinement in excess of 36 months, rather than the 48 months you are proposing, due to the lengthy pretrial restraint the accused has endured.” For all we know, trial defense counsel engaged in exaсtly such negotiations in this case.
One thing is clear, however. Pretrial confinement, or its equivalent, cannot be bargained away in arriving at a sentence limitation. For it is the Secretary of Defense himself who has mandated that the armed forces comply with federal practice and credit pretriаl confinement. United States v. Allen, supra. Under the circumstances of this case, however, no error has occurred.
The decision of the United States Army Court of Criminal Appeals is affirmed.
EFFRON, Judge (concurring in part and in the result).
The majority holds that in a case involving pretrial punishment not tantamount to confinement, it is appropriate to apply any credit аgainst the sentence adjudged at trial rather than the sentence approved by the convening authority. In the absence of a precedent requiring a different result, I agree that the military judge did not err in this case.
I note, however, that this result produces an anomaly where there has been a prеtrial agreement limiting the maximum confinement that may be approved by the convening authority. If a servicemember has been sub-
In the present case, the improper punishment involved actions not tantamount to confinement, so the credit was not apрlied against the maximum sentence imposable under the pretrial agreement, but instead was applied against the adjudged sentence. Because the adjudged sentence (whether designated as 61 or 61 months), as reduced by the 8-months’ credit was greater than the 36 months provided for in the pretrial agreement, appellant received no relief, despite the military judge‘s determination that he had suffered illegal punishment so serious that it warranted 8 months’ confinement credit.
There does not appear to be any significant policy reason that would explain why 8-months’ confinement credit in the case of one type of punishment should be applied against the maximum sentence that could be approved by the convening authority (i.e., the maximum imposable under a pretrial agreement), while the credit for another type of punishment is applied against the adjudged sentence without regard to a pretrial agreement. This anomaly is subject to further distortions if consideration of the potential initial release date is taken into account. See Larner, supra.
I would hold, prospectively, that confinement credit be applied in the same manner for all types of pretrial confinement and рretrial punishment, and that it be applied against the sentence that may be approved by the convening authority, rather than the sentence adjudged at trial. This would eliminate speculation as to whether the court-martial actually granted relief, and would ensure—under United States v. Suzuki, supra—that an adjudication of illegаl pretrial punishment results in effective relief.
SULLIVAN, Judge (concurring in the result):
This is an unusual case on its facts because the unlawful pretrial punishment did not entail unlawful pretrial confinement. The military judge felt that a judicial credit was warranted for appellant‘s maltreatment. Cf. United States v. Suzuki, 14 MJ 491 (CMA 1983); United States v. Larner, 1 MJ 371 (CMA 1976). The majority establishes a procedure for this situation different from that where administrative credit is ordered for lawful or unlawful pretrial confinement. Id. While I question the need for still another special rule (see
It is clear that the military judge intended that appellant be given 8 months оf confinement credit for unlawful pretrial punishment in violation of