United States v. Spaustat

STATES, Appellee, UNITED SPAUSTAT, Sergeant,

Russell T. Staff Force, Appellant. Air

U.S.

No. 01-0656.

Crim.App. No. 34036. Appeals

U.S. Court of

the Armed Forces.

Argued Dec. 2001. Aug.

Decided Court, appellant claims that this

Bеfore illegally his sen- military judge increased it, incorrectly announcing and tence after pre- illegal computed appellant’s credit for from the punishment. The issues arose trial compute military judge’s attempts to how appel- post-trial confinement many of actually all credits serve after lant would applied were to the and deductions describing his of the course calculations, military judge discussed factors, in- interrelationship among several GIERKE, J., opinion delivered sentence, cluding confinement BAKER, JJ., Court, in and which EFFRON credits, potential maximum sentence that SULLIVAN, S.J., opinion joined. filed an approved, and the amount of time could be concurring part in and in the result. CRAW- During might served. this remain FORD, C.J., concurring opinion filed an discussion, military judge at various the result. months, to confinemеnt for 10 times referred (ar- Appellant: Major Jeffrey A. For Vires days, days, days, days, 100 gued); Beverly Lieutenant Colonel B. Knott days, days, days. and Timothy Murphy and Colonel Lieutenant W. Appellant asserts that he served more con- (on brief). approved, and finement than was (ar- Appellee: Captain For Adam Oler discharge and he asks that his bad-conduct P. gued); Anthony Colonel Dattilo and Ma- illegal post-trial con- be set aside because of (on brief). jor Sigmon B. Lance follow, For the reasons that we finement.1 affirm.

Judge opinion GIERKE delivered

the Court. military judge sitting general

A as a court- FACTUAL BACKGROUND appellant, pursuant martial convicted his trial, appellant requested relief for ille- At absence, pleas, 47-day of a unauthorized gal pretrial punishment imposed violation specifications violating gen- three a lawful 13, UCMJ, § The of Article 10 USC 813. regulation by misusing govеrnment eral his motion, granted finding card, specifications and two of dishon- improperly denied his orably failing to maintain sufficient funds sergeant stripes right to his staff while wear account, checking his in violation of Articles stripes and that “his 86, 92, Uniform Code off, literally in him.” ripped were fi’ont of Justice, 934, respec- §§ 10 USC military judge that “a one- The announced tively. appel- The sentenced the ad- for-one credit was awarded towards discharge, lant to bad-conduct reduction sentence, incorporat- has been which grade, the lowest enlisted and confinement The ed into the sentence of this court.” disputed appeal. is in this for a duration that military judge then announced the convening authority approved the sen- for 202 tence, which included confinement Appeals and the Court of Criminal unpublished in an then commented: affirmed decision. granted WHETHER THE MILITARY JUDGE issues are: II. ERRED IN INCREASING APPELLANT’S I. WHETHER THE MILITARY JUDGE SENTENCE AFTER ANNOUNCEMENT. THE MANNER IN WHICH HE ERRED IN WHETHER THE ADJUDGED BAD- III. CREDITED APPELLANT WITH ADDITIONAL BE DIS- CONDUCT DISCHARGE SHOULD TIME AGAINST CONFINEMENT BECAUSE APPROVED BECAUSE OF ILLEGAL POST- OF ILLEGAL PRETRIAL PUNISHMENT IN UCMJ. TRIAL CONFINEMENT. VIOLATION OF ARTICLE pre- understanding The accused has served 102 you of this Court. Do un- Using trial just confinement. the directives in place Sergeant derstand what’s taken Allen, (CMA 1984),] U.S. v. [17 MJ 126 Spaustat? I know that sounds a little accused will be awarded 102 of credit confusing. you The Court sentenced to 10 approved towards the sentence to confine- months, gave you types but two different matter, practical ment. As a that leaves of credit with the result that it would be days 100 to be served. days you about 102 more or less that would remaining have to be served. But because pleaded guilty Because had your agreement of convening with the au- pretrial agreement, accordance with a thority, your sentence will reduced fur- be military judge agreed next examined thе sen- ther an additional two months. explained tence limitation. He the effect of as fol- pointed Trial appel- counsel then out that lows: stripes lant’s were not until removed he had that, In that agree- document it states in pretrial days, been confinement for ten your plea case, guilty your ment for of military judge and that given appel- had eight no more than of months confine- pretrial punishment. lant too much credit for approved, ment would be if confinement is agreed, The judge saying: case, adjudged. In ap- this the Court So, day period that 10 will be added proved, gave you ten months and credit—in my position. back—I will restate He type one days of credit for 102 and addi- days days receive 92 not 102 days, tional credit for 102 but there 10was theory under the that there was a violation days mоnths or 305 of confinement. As I of Article 13. Appendix, you understand the could have So, eight no more than months. that’s an then “restated” the sen- days additional your 60 to be reduced from tence, including this time confinement for 212 So, convening the most that the days. adjourned The court on November approve days. could is about 40 1999, with no further discussion of the sen- rough, And that’s but somewhere tence. ballpark days 42 or 43 of additional military judge’s sentence continued to confinement, beyond you’ve already what be a matter of concern after the trial. On served. 2, 1999, December the Chief of Jus- Responding to trial counsel’s concern about explain judge’s tice was asked “to sen- computations, his further regard tence with appro- confinement to explained: priately SSgt Spaustat’s calculаte release Well, getting let me—without into the explanation date.” His was as follows: days, basically actual this court sentenced judge days him 212 sentenced confinement; the accused to 10 months confinement, already taking into account gave credit; days 102 gave Allen days illegal pretrial pun- his 92 credit for days additional using of credit However, reviewing ishment. after theory that there was a violation of Article [pretrial agreement], PTA stated you up, 13. But when back it there was a original prior that his to subtract- sentence to 10 months before the credits ing days illegal pretrial punish- the 92 for applied. My understanding were (about months) days ment was 304 [sic], that was entered to Therefore, SSgt Spaustat got finement. says would be no more than 8 months. It (2 months) days an additional 60 off the that no ap- more than 8 months will be PTA, top capped for the which the sen- proved, not served. months, leaving tence to confinement at 8 got days Then he the 92 illegal pretrial punishment and the 102 I’m appellate sure that will leave the credit for leav- about, folks with lots to talk ing days remaining. but that’s the him with agree- days, that the tence was to calculate his You would still need effect, and subtract the 92 “good credit for time” served had no and that days. By my the 50 calculation it from military judge for by the credit awarded (5 good time get about 25 should to be fac- pretrial punishment did not need month), x days per leaving him months equation a second time. The tored into the of his to serve from the date as the con- calculation was the same SJA’s SSgt That means trial on 30 Nov 99. facility’s, leaving 110 to be finement 24 Dec Spaustat will releasеd on served. However, you would need to confirm au- December On my days” correct. “good calculation is ap- request thority denied the defense In a memorandum dated December from confinement. pellant be released agreed with the Chief defense counsel stated: part, that denial document the Military statement of ad- Justice’s 92-day applied against the credit is the con- judged sentence to confinement and against the adjudged not punish- illegal pretrial for finement credits (PTA). confinement. Since the and lawful However, disagreed the calculation the sentence minus the credit comes below “good counsel time” credit. Defense PTA, inapplicable any calcu- the PTA is argued good that time credit should be cal- period. of confinement latiоns on the full term of confine- culated 22, 1999, convening author- December the On ment, which, according to the defense coun- ity appellant be released from ordered sel, months, any eight credits was before 27, 1999, par- “to confinement December on were considered. Defense counsel’s calcula- Spaustat tially compensate [Airman Basic] days given appellant 40 tion would have gave him at judge for the credit the his credit, good leaving only days to time 10 improper the manner court-martial served. facility which the confinement removed his 7, 1999, On December defense counsel stripes.” military judge requesting clarifica- wrote the 4, 2000, February late as the sentence As appellant’s appel- tion of sentence so that was still a concern. In a “Submission of lant’s minimum release from confine- date Matters,” argued Clemency ment could be determined. The record of defense counsel response trial not reflect a from the does appellant that should have been released military judge. This memorandum reflects 9, 1999, on December but from confinement Military that the and the Chief of Justice 27, was not ordered released until December agreed appellant defense counsel had that post-trial the rec- an addendum to credit, days good was entitled to 40 time 2000, ommendation, 23, February dated the appellant only days would have had 10 that his recommendation had cor- SJA noted confinement to serve after trial. This calcu- rectly adjudged,” the set forth sentence “as required appellant’s lation would have re- including days 212 confinement. 9,1999. from confinement on lease December 21, 2000, ‍‌‌‌​‌‌‌​‌‌​​‌‌‌‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​‌​​​​​​​‌‌​​​​‌‌‍convening however, March authori- On facility, had deter- confinement appellant’s ty simply approved minimum release date Consis- mined that February Report based on the Report Trial and tent with the of Result of Trial, of Result of which reflected ad- recommendation, promulgating SJA’s imposing sentence of con- order reflects finement, less 102 of Allen credit. provided for 212 of confinement. The stated, remaining convening “The 1999, On December defense counsel served, having period of confinement been requested appellant’s release confine- from designated.” place of confinement is no (SJA) judge ment. The staff advocate disa- any no mention of confinement calculations, There is greed with defеnse counsel’s authority’s action. taking position that the announced sen- credits required by DISCUSSION the reduction ment. The also told proper applications illegal of credit for again, you “The Court sentenced to 10 pretrial punishment and lawful con- months.” law, questions finement are reviewed de novo. v. See United States 52 MJ Finally, pointed after trial counsel out that (1999); Allen, 156-57 atMJ 126. Inter- incorrectly, the Suzuki credit was calculated pretation aof also is a military judge agreed given that he had law, question of reviewed de novo. United too much Suzuki and he Acevedo, (1999). States provide “restated” the sentence to for con- computation finement for 212 This Adjudged 1. The Sentence included the corrected Suzuki credit but not begin analysis question We our with the the Allen credit or the sentencе reduction imposed whether the pretrial agreement. under the days, days, months, finement for period. Although military or some other any Defense counsel did not raise issue periods mentioned various of confine- about the sentence until after the ment, appellant has focused on 202 memorandum, post-trial trial. In his defense days. Appellant asserts that the agreed counsel with the Chief of judge sentenced him to confinement for 202 “original Justice’s statement sen- illegally and then increased it to 212 provided tence” for ten months confine- days. appel- The Government asserts ment. lant was sentenced to confinement for 10 clearly The record reflects that the mili- months, amounting days. to 304 We hold tary judge adjudged including a sentence adjudged imposed the sentence confine- сonfinement for ten months. There is no ment for ten months. ambiguity regarding adjudged the sentence, announcing Before the mili- the military judge’s The references to various tary judge stated that the credit for unlawful days of confinement do not reflect the ad- pretrial punishment incorporated “has been sentence, they but instead reflect his into the military sentence of this court.” The attempts many days to calculate how of con- judge’s first announcement of confinement appellant actually finement would serve after days incorporated for 202 his calculation of Thus, his court-martial. we will review the Suzuki, this credit. See United States v. 14 military judge’s application of confinement (CMA (additional 1983) MJ 491 credit for credits and the on the conditions). pretrial confinement under harsh adjudged imposing basis оf an sentence military judge then deducted the Allen finement for ten months. credit and told that he had “100 Reconsideration Unlawful days to be served.” the Sentence Next, explaining while the Appellant military asserts that the appellant, military judge to the stated judge unlawfully reconsidered his sentence approved that “the Court ten months ... adjudged and increased the confinement days there was 10 months of confine- days from 202 to 212 The Government ment,” with 102 of Allen credit and 102 asserts that the announced sentence included days of Suzuki examining credit. After the military judge’s computation the of confine pretrial agreement, recomputed again and sentence, against ment credits the told convening “the most that the change and the from 202 approve days.” could is about 40 military judge’s reflected the recalculation of questioned After trial counsel his calcula- change confinement credits and not a in the tions, military judge explained the that he adjudged sentence. “basically sentenced the accused to 10 confinement,” months military judge but that after deduct- We hold that the did not ing credit, appellant Suzuki and Allen illegally merely would reconsider his sentence. He serve, have “102 more or less” to less corrected his calculation of Suzuki credit. military judge’s Rock a pointed appel- out involved After trial counsel pretrial pun award of confinement credit stripes lant’s were not removed until he had 13, supra, in Article ishment violation of pretrial days, ten the been confinement for pretrial the was not con where accused the judge recalculated Suzuki сredit nor trial in conditions tan finement held for again, incorpo- the sentence announced This Court held tamount to confinement. rating adding credit but ten the Suzuki that, pretrial punishment “did because the to the sentence to reflect the cor- announced was it involve nor tanta not rected calculation. The sentence confinement,” military judge the mount to unchanged remained at ten months. by awarding confinement credit did not err short, not in the did against the sentence instead of the only crease the sentence. “increase” by pretrial required lesser sentence military judge’s resulted further, from calculation however, agreement. stated We against credits agreement, that when there is not the sentence itself. credit for lawful confinement {Allen credit), brought illegal modified credits when it was as credit for well as additional credit), pretrial confinement must be {Suzuki his attention that he had miscalculated them. Courts-Martial, the lesser 1007(b), RCM Manual for provid maximum sentence (2000 ed.),2 provides: “If United States pretrial agreement, for in the ed unless actually sentence is not the one announced pretrial agreement provides otherwise. 52 court-martial, by determined the error at 157. MJ may be a new corrected announcement made the record of trial is authenti before separate opinions The two this case cated au and forwarded to the correctly point the statement Rock that 1009(c) thority.” provides: “A RCM sen against “credit awarded confinement any may prior tence clarified at time to military judge always applies convening authority action of the on the adjudged—unless Jones, agreement case.” See United States v. 3 MJ otherwise.” at also itself dictates Id. 348, (CMA 1977); However, they omit the remainder 156-57. United States v. Liber discussion, ator, opinion’s of the Rock which ad 279, USCMA CMR pretrial the where the (1964); dresses circumstance Robinson, States v. 4 USC- United agreement provides for a sentence less than (1954). MA In 15 CMR this explains: the Rock sentence. case, military judge the corrected calcula his pretrial agreement Where there is a that tion of confinement credits and clarified their out a limitation than sets lesser that ad- impact remaining on the confinement to be court-martial, however, by judged a the served. the agree- different result obtains. Where Application 3. Suzuki Credit of confinement, maximum ment a establishes Suzuki, example, fоr that is less than that ad- supra, in decision involved court-martial, by that the lesser pretrial under harsh confinement conditions. total limit becomes the maximum confine- “explicitly recognized” That decision is lawfully ment that accused can be the 305(k), which, among things, RCM other em- portions made to of that serve. Where powers military judge to a “order additional served, already confinement have been ac- day pretrial credit for each of confinement tually constructively, applies the credit that of discretion involves an abuse or unusu- against agreement, the otherwise the ac- ally harsh circumstances.” See cused’s sentence unll exceed the maximum 305(k), at 156. which covers violations RCM limit. lawful procedures imposing of for administrative added). (emphasis Id. at 157 reviewing prеtrial and confinement well as as credit, specifically provides arguably gives Suzuki for credit than Rock more relief RCM 305(k). However, applied against to be the it is not inconsistent with sentence. provisions 2. All are trial. of the Manual the same as those effect at the time of 305(k) 305(k), Appellant specifical- RCM asserts that the Allen credit must RCM because ly day-for-day authorizes more than be the 202 of confine- violations, for it does not Suzuki address that ment was announced. The Government impact pretrial agreement the of a on the military ap- judge correctly asserts that the application of confinement credits. plied against eight- the Allen credit the limitation, which than month sentence is less case, In this the awarded adjudged. the that ten-month sentence was punishment pretriаl additional credit for un- lawfully light holding that imposed appellant on while he of our the was military judge ini- pretrial provided confinement. The sentence for ten of months confine- tially apply ment, military stated that he would the credit judge’s we the hold that deci- against the but when he apply against sion to Allen credit the the calculations, actually ap- announced his he eight-month the limitation against provided plied it lesser ment with was consistent Rock. by agreement. for The Govern- appellant ment asserts that received a wind- 5. Computation “Good Time” Credit of military judge erroneously fall because the applied against Suzuki credit the lesser sen- parties agree appellant was enti- provided tence for in the “good tled to 5 time” of credit for each instead оf the sentence of confine- they disagree month of but on for ten months. question computed it should whether on agree the basis of the limitation in

We do not Government’s (8 months) military judge gave appel- assertion that the or the sen- appellant lant windfall. Because was tence announced stripped of his status as noncommissioned purportedly au- approved (212 officer as an incident his of confine- thority days). Appellant asserts that ment, making the conditions confinement was entitled to 40 onerous, more we hold provided each of the 8 months confinement judge’s apply decision to Suzuki credit pretrial agreement. for in the The Govern- provided for in lesser sentence ment asserts that was entitled pretrial agreement was consistent with per approved fivе of credit month of the Rock. convening authority Since Application Allen Credit purported approve a sentence that includ- days, ed confinement for the Government parties agree to, appellant was at (.Allen asserts that entitled credit) day-for-day to credit entitled most, days good of 21.5 of time.3 The Court days pretrial 102 for of confinement. See Allen, Appeals appellant Criminal concluded that guid 17 Under the MJ at 128. Rock ance, had 50 applied against post-trial of confinement such credit must be imposed, good serve after was lesser of the sentence or less the sen pretrial agreement. days.4 tence limitation time of 21.5 The court below conclud- page Regulation [Air 3. The Government’s is as table found 9 of Force calculation follоws: on provide Appellant 125-30] with one additional Appellant pretrial entered confinement on 19 day. granted Court half The Air Force another time, 1999, August August 20 Keesler 1999 However, day given Ap- explanation. without By crossing Osan time. virtue of the interna- dateline, pellant's crossing of the international dateline, is, Appellant day. tional lost a That day provision arguably equita- was half spent he 24 fewer hours in confinement be- ble. day cause one was calendar removed from his Final Brief at 12 n. 3. calendar. He left on 27 confinement Decem- Therefore, ber 1999. he served four months Appeals’s, 4. WL The Court of Criminal 2001 and seven in confinement. Someone sen- 506631, was as follows: calculation year tenced to less than 1 in confinement is 304 of confinement determined days per good entitled tо five month time. Judge Therefore, served, full for the four months he 305(k) -92 for RCM credit = (4x5 Appellant to 20 was entitled 20). days, according The residual seven to the of confinement to credits pretrial confinement for unlawful from confine- appellant was released ed that confinement, hard labor without against day early. one fine, restriction, finement, forfeiture of Rosendahl, disagree not resolve the v. pay); need United States We (2000) good 344, time. entitled to have computation (appellant of not ments about credit for discharge for set aside as punitive and the Manual Courts-Mar The UCMJ credit. confine- good period time provision “relatively make no for short” tial determining much post-trial for how no confinement responsibility ment where credit, an any, discharge “qualitatively if be awаrded is is good adjudged; punitive time confinement); responsibility, in the see also Unit- vested from administrative different” (2002) (no facility. Smith, See of the confinement v. 56 MJ 290 commander ed States 31-215, right constitutional, statutory, regulatory Air Instruction Force Joint (November 1964); punitive discharge set aside as Sentences to have Confinement 31-205, post-trial Air Force ‍‌‌‌​‌‌‌​‌‌​​‌‌‌‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​‌​​​​​​​‌‌​​​​‌‌‍Instruction where no see also for confinement 2001). 9, (April adjudged). System Air Force Corrections confinement was parallels civil Military penal practice federal responsibility for practice,

ian which vests in Future Cases Application 6. Credits regarding good time credit decisions that, even after 4161; This case illustrates § prison See 18 USC warden. Rock, ap about the (2001).5 there is some confusion pris Part 523 Before a civilian CFR pre plication crеdits when of confinement judicial may review of decision oner obtain Furthermore, agreement trial is involved. prisoner regarding good time applying confinement cred recognize we all available administrative must exhaust adjudged sentence in cases disputes remedies. Judicial review of about pro pretrial agreement can where there is a only upon application good time credit occurs results, deprive and it can writ, duce anomalous extraordinary not on direct re for an meaningful egregious appellant of relief for generally the sentence. United view of See 305. If of Article 13 or RCM Wilson, 329, 337, violations 112 S.Ct. States U.S. (1992) (review such violations are credits for pre 117 L.Ed.2d 593 of the lesser sentence instead credit); v. Rodri trial confinement Preiser pretrial аgreement, required guez, 411 93 S.Ct. U.S. situations, may not (1973) (review then in an accused some good time de L.Ed.2d termination). meaningful if re receive relief the sentence is under

duction for the viola greater than the credit awarded Because has been released J., (Effron, only tion. See 52 MJ at 157-58 from issue is whether result). compen concurring part and in the This entitled to sentence relief to is contemplates effec illegal post-trial him confinement Court’s Suzuki decision sate tive, meaningful at 493. Ac relief. MJ from December 10 December that, cordingly, if in order to avoid further confusion hold even should have We meaningful relief in all future Decem and to ensure been released from confinement on decision, 27, this the additional after the date of this ber 10 instead of December eases require granting the dаys of confinement do not warrant Court application of all confinement credits request his bad-conduct dis direct his to set aside 305(k) and (limiting of Article 13 or RCM 305 charge. remedies for violations See RCM days of confinement to be served days credit 28.5 -102 Allen days 110 Unpub. op. at A7. — (Difference judge’s 60 between the basis for confinement and the statutory good in basis for time credit 5. The in limitation on confinement repealed facilities was for of- federal civilian Agreement) the Pretrial 1, committed on or after November 1987. fenses days of confinement 98-473, II, 218(a)(4), § 98 Stat. Pub.L.No. Title — days good 21.5 credit for time served (1984). against approved all Allen credit the sen- ed to confinement was to be treated as a tence, ie., the lesser of the sen- against provid- the maximum sentence may tence or the approved sentence that pretrial agreement. ed in the United States pretrial agreement, under the as further re- Rock, supra.2 v. by any clemency granted by duced the con- Here, appellant’s pretrial punish- unlawful vening authority, pretrial agree- unless the ment was related to his confinement. provides ment otherwise.6 However, contrary assertion, appellant’s military judge the did not consider it as a DECISION mitigating arriving in factor at an Here, sentence. consid- The decision of the Air United States against ered it as a sentence credit the ad- Appeals Force Court of Criminal is affirmed. in addition to a sentence deduction from the sentence which SULLIVAN, Judge (concurring Senior in he allowed for a favorable sentence limitation result): part in pretrial agreement. ‍‌‌‌​‌‌‌​‌‌​​‌‌‌‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​‌​​​​​​​‌‌​​​​‌‌‍Aсcordingly, I granted The first issue asks whether the agree majority with the granted that the first considering appel erred in merit, issue is without and United States v. pretrial punishment lant’s unlawful as a miti Rock, supra, effectively complied was with in gating in determining factor his this case. 1001(c)(1)(B), sentence. See RCM 1002 and granted The second issue is “whether the Courts-Martial, Manual for United States increasing appellant’s erred (1998 ed.).1 sentencing approach Such a [its] sentence after announcement” at his permissible prior to the decision of this Court court-martial Rock, from 202 to 212 I in United States v. (1999). Seidel, agree majority See and the Giving Michael G. Court of Ser vice They Appeals Members the Criminal Credit Deserve: A that the record in this case Sentencing Review Application, and Its shows that was sentenced Army Lawyer 2-3,12-13 (Dept. of the military judge to 10 months’ not 1999). Army Pamphlet Aug. 27-50-321 argued by appellant. 202 or as Moreover, judge’s the trial comments con- opinion of this Court in United States cerning a sentence of vis á vis however, supra, arguably precluded clearly were computa- directed to the by military such action judge. specifical It actually tion of the sentence would that, ly held agreement absent a 57(b), serve. See Article Uniform Code contrary, pretrial punishment unlawful Justice, 857(b); § 10 USC Article unrelated to confinement was to be treated cf. 53, UCMJ, my view, § 10 USC 853. In as a sentence credit granted merit, See, second issue is without al- e.g., Larner, United States v. (CMA 1976). though convening authority dicta, MJ action and 374-75 that, suggested promulgating absent an to the order this case should be contrary, pretrial punishment unlawful relat- corrected. respect possibility

6. With to the that an 1. provision accused The current version of each Manual might seek to obtain double credit—once when cited is identical to the one in effect at the time negotiating pretrial agreement appellant’s again when court-martial. trial, asking for credit at we note that a conven- ing authority may insist that the pretrial punishment might Unlawful also be preclude example, a double credit. For convening authority arriving considered when a includes a confine- at a approved maximum sentence to be ain cap defense-requested that includes a cred- pretrial agreement exercising clemency in his it, convening authority may require 60(c)(1), that the approval action under Article Uniform agreement provide any Justice, 860(c)(1); similar credit or- § Code of 10 USC see by Manual, applied 1107(b), dered will be supra. RCM Dicta in United sentence, Rock, adjudged not supra, arguably precludes the sentence v. States or dis- cap pretrial agreement. courages in the by convening authority. such action a trial confinement when granted issue asks “whether the The third credits It holds that all sentence is involved. discharge should be adjudged bad-conduct approved applied against the sen- should be illegal post-trial con- disapproved because the actual sentence to be tence to determine Here, appellant avers that he finement.” majority agree with the served. I did not unlawfully confined after his court-mar- was Rock, supra, nor opinion in States v. United served, had been from Decem- tial sentence dicta, I affirmed on different its 10,1999, a total of ber to December (Sullivan, J., concur- grounds.4 52 at 158 MJ may agree I this claim be result). majority join ring in the I do not rejected v. on the basis of United States dicta into today in the transformation of that (2000). Rosendahl, Rosendahl, In 53 MJ 344 for all confinement credits. a broad new rule illegal pretrial con- we held that 120 finement, ap- view, my majority’s which could not otherwise be new rule for In sentence, plied against computing did not courts-martial sentences be an accused’s military by prisoners in future cases require setting aside of his bad-conduct served language past in our cases and conflicts with discharge. Clearly, it the Manual for Courts-Martial. comment is warranted as a Some further holding majority in precise violates the questions result of the raised this ease (In Rock, fact, if supra. it United States v. concerning computation of the sentence Rock, applied have received were would military prisoner actually that a will serve. credit.) In 25 months of additional sentence 57(b), agree I See Article UCMJ. with the event, any prefer I would that our sentence Appeals’ general app Court of Criminal computation rule be stated terms tradi- computing in this case of the sen roach3 military tionally understood in and civilian actually tence which had to be served credits, including law. All effective sentence appellant. at 262-63 n. 4. That See MJ sentence resulting from a favorable applied various sentence credits to Court agreement, be limitation in a should entitled, appellant including which a 60- successively applied against day resulting deduction from a favorable sen parties provided unless the have pretrial agreement, against tence limit in his pretrial agreement. rule in for a different view, my In sentence. this sum, my In view that all sentence is correct, only approach is not is but it consis initially required credits law should be military tent with and civil well-established applied against the In computation practice. ian sentence See group, I sentence credits would include Allen, (CMA 126, 129 v. United States 17 MJ for lawful and unlawful 1984)(Everett, C.J., concurring)(lawful pre pretrial punishment, unlawful and RCM 305 305(k)(RCM credit); trial confinement RCM addition, discretionary violations. In sen- Rock, violations); United States v. 52 MJ then tence credits or deductions should (Article 13, UCMJ, § at 157 10 USC is left of the what pretrial punishment); violations unrelated to legal sentence after the credits have been Larner, see also States v. at United MJ applied. group, In I would include de- this 374-75; Kramer, v. United States F.3d resulting a sentence from ductions from (8th Cir.1993). in a sentence limitations majority approach takes a different convening authority between the ac- military prisoner computing the sentence a granted an act of cused and deductions as actually serve. It relies on dicta clemency convening authority. by the Rock, supra, concerning my view, v. approach question United States this to the application pre- computation, was followed of sentence credits related to which agree appellate 3. I do not with the service court's tence credit for what he considered technical specific conclusion that was entitled tо UCMJ. See United States violation of Article good light 21.5 time of his J., (1999)(Sullivan, agreed and the of 10 months result). curring in the days per rate of 5 month. clearly My view was that the did not intend to afford the effective sen- opinion); A to (July 2001)(Appendix Court, faithful Force is more by the Air See United practice. existing supra at 2 Seidel, (suggesting n. 21 cf. Larner, De supra; Department of States of sentence purpose “adjudged sentence” 1325.7, Administration Instruction fense 305(k) really Lamer and ROM and Clem Facilities Military Correctional sentence”). “approved means Authority at Enclosure ency Parole A APPENDIX 1325.7, DODI July ENCLOSURE 7 E7.

DP FORM 2710-1 (1999), specifically provide for vari- CRAWFORD, (concurring in Judge Chief the ad- ous credits to be result): day-for-day including the majority agree Allen, I that the record credit under United States (CMA 1984), reflects an appropriate; of trial and wherе months; for ten computation “good included confinement time” credit is an responsibility no unlawful reconsideration of the best left there was administrative ‍‌‌‌​‌‌‌​‌‌​​‌‌‌‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​‌​​​​​​​‌‌​​​​‌‌‍305(k), sentence; facility that RCM Manual hands of a confinement commander. (2000 Courts-Martial, ed.), However, recognizing rather than the ambi- United States Rock, Court, Rock, guity 52 M J in the dicta the rationale of United States v. 305(k), trary Court, to RCM establishes a new e.g., rule decisions from our Southmck which overlooks the of the Presi- supra, guarantee litiga- both increased dent.1 imaginative pretrial agreements tion and for the foreseeable future. 305(k) clearly remedy

RCM states that the (1) provide for a prisoner failure to: a with the contended that “the (RCM (2) 305(f)); provide counsel pris that military judge applying erred in the credit to by oner with notification and action the com the rather than to the regarding mander his or her confinement by pretrial limitation agree- established (RCM (3) 305(h)); pretrial review that con pleaded ment.” 52 MJ at 155. Rock had 305(i); (4) pursuant finement to RCM guilty in pretrial agree- accordance with a (RCM provide by military a review a ment that limited his confinement to three 305(j)), specific against is a credit the sen years. credited Rock adjudged. tence See United States v. South eight against with months of confinement wick, (2000)(Crawford, C.J., 53 MJ pretrial sentence as a result of II”). “concurring ... as to Issue appellant’s liberty. conditions on He then In addition to the aforementioned adminis- announced a sentence that included 53 credits, trative pursuant there is credit to “explained months of which he Allen, supra, day pretrial for each of lawful included 8 months of credit.” Id. at n. 2. confinement; pursuant to United pretrial agreement, Pursuant to the the con- (CMA Suzuki, 1983), States v. 491MJ for vening authority approved confinement for illegal pretrial confinement; pre- credit for years. three trial confinement that involves an abuse of unusually circumstances; discretion or harsh We held “that neither the erred____” pursuant and credit to United States v. Ma- convening authority nor the Id. son, (CMA 1985), pretrial MJ for at 155. We further held “credit equivalent restriction to confinement. The by military judge confinement awarded a necessarily latter would not be known always applies against the sentence ad- convening authority and would have to be judged—-unless itself litigated at trial. King, United States v. Cf. dictates otherwise.” Id. at 156-57. Rock (2002)(granting 57 MJ ques- review on was a case where the defense was “successful tion whether applicable). Mason credit was in convincing military judge to reduce the Furthermore, sentence due to the [on restraint sentencing procedures in a liberty].” awarding court-martial2 often result Id. at 157. “Had the prior nonjudicial additional such for as agreement, sentence been lesser than the punishment. 1001(c)(1)(B); See RCM Unit- pretrial restraint would have been effective Pierce, (CMA 1989); ed States v. 27 MJ 367 substantially reducing appellant’s sen- Gammons, United States v. 51 MJ 169 tence.” Id. We noted that restraint (1999). clearly We do need a rule that de- tool,” bargaining is a “useful “[f]or all we fines how applied credits are to be in future know, engaged trial defense counsel in exact- However, majority, cases. unlike the I be- ly negotiations in such this case.” Id. rule, any rule, including lieve that the Allen Rock neither ‍‌‌‌​‌‌‌​‌‌​​‌‌‌‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​‌​​​​​​​‌‌​​​​‌‌‍nor holds stands for the involving credits must be bottomed on the proposition given that “successful” credit principle fundamental that the accused is the Allen, Mason, pursuant to or Suzuki must be gatekeeper of the evidence and director of the lesser of the sentencing drama. See United States v. provided sentence or the maximum sentence (2002)(burden Chapa, 57 MJ 140 on accused agreement. for As both (non)compliance to raise issues of RCM 305 violations). out, majority concurring opinions point any and focus the trial court on majority’s holding, coupled facts, prior unique with Rock was as to its as well as the * 1. See United States v. X, 246 n. See Rules for Manu- Courts-Martial, Key, Chapter (2002)(Crawford, result). (2000 ed.). concurring C.J., in the al Courts-Martial, United States shortly parties. see of both We military judge awarded benefit remеdy which the agreements relief. provide to effective order records of trial of credit awarded indexed to the amount are majority today rule announced way as economists index in much the same negoti- servicemember allows accused prices inflation. her authori- ate a deal with his or sentence, by ty, cap on the and obtain Military sentencing procedures place a arguing he or is entitled to the she present evidence duty the Government on various credits discussed above. MJ Cf. lessening of may result in either a which Having at 264 n. 6. secured See, punishment credit to an accused. or ment, the accused can and should then make 1001(b). The should be on e.g., ROM burden presentation to the the same to set out all of its evidence the defense pro- during the or сourt members or other treatment warrant- unfair treatment Now, opportuni- ceedings. having had two authority. ing sentencing of a front credits, argue the accused will be ties authority sentencing can make an Then the credits, judge entitled to the various as the directing that credit be informed decision determines, and then have these credits sub- cred- applied to the sentence where from the lesser of the two sentences tracted (adjudged agreement). procedure way in no due. is Such ability litigate further hamper an accused’s majority’s holding The end result of the fairness before the sentence’s fashioning will be the of new (RCM 1106), argue or to imaginative by prosecu- ments with clauses appropriateness to the Court of justifi- tors staff advocates—and so, ably Appeals. for a is for the Criminal

Case Details

Case Name: United States v. Spaustat

Court Name: Court of Appeals for the Armed Forces

Date Published: Aug 30, 2002

Citation: 2002 CAAF LEXIS 1040

Docket Number: 01-0656/AF

Court Abbreviation: C.A.A.F.