UNITED STATES v. Jerry M. WILLIAMS, Jr., Seaman Apprentice, U.S. Coast Guard
CGCMS 24199, Docket No. 1140
UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS, Washington, DC
7 February 2001
2001 (C.G.Ct.Crim.App. 2001)
Special Court-Martial convened by Commanding Officer, USCGC MOHAWK (WMEC 913). Tried at Key West, Florida on March 22, 2000. Military Judge: CDR Bryan Schroder, USCG; Trial Counsel: LTJG Melissa J. Harper, USCG; Detailed Defense Counsel LT Tara Schorman, USCG; Appellate Defense Counsel: CDR Jeffrey C. Good, USCG; Appellate Government Counsel: CDR Chris P. Reilly, USCG.
Baum, Chief Judge:
Appellant was tried by a special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was found guilty of one specification of unauthorized absence from July 2, 1999 until January 13, 2000 in violation of
The convening authority reduced the forfeitures to $751.00 per month for six months, which brought that portion of the sentence within the requirement of
Before this Court, Appellant has assigned four errors: (1) that the approved forfeitures exceed the maximum allowed for a special court-martial; (2) that the approved sentence to confinement exceeds the amount of confinement adjudged; (3) that Appellant was not served with a copy of the referred charges in accordance with
I
The Government concedes that the first assignment of error has merit in that the adjudged and approved forfeitures were based on Appellant‘s pay at his prior grade of E-2 rather than his reduced paygrade of E-1. If a sentence includes reduction in grade,
II
In his second assignment of error, Appellant contends that the approved sentence to confinement exceeds the amount of confinement adjudged. He bases this contention on an incorrect statement of the confinement in the convening authority‘s promulgating order as six months rather than 180 days. The Government acknowledges the promulgating order‘s error, but notes that the convening authority, in his action on the sentence, correctly approved confinement as adjudged, which was 180 days. The Government also states that the promulgating order‘s discrepancy has already been brought to the attention of the convening authority‘s staff judge advocate and that no corrective action by the Court is needed. We agree that no modification to the approved confinement is required since the convening authority‘s action approved the adjudged confinement of 180 days not six months. We will order a correction to the promulgating order, however, so that it properly reflects the amount of confinement adjudged.
III
As to Appellant‘s third assignment of error, he contends that service of referred charges on him, as required by
Based on the foregoing, Appellant argues that he was never provided a copy of the referred charges until the date of trial. Without conceding either that the failure to serve referred charges is subject to waiver or that he has not been prejudiced by this failure, Appellant submits this issue to the Court for corrective action as deemed appropriate. In so doing, he concedes that the other service courts have either found non-compliance with the
Reviewing the record, with this in mind, we find that the military judge noted that the charges were served on the accused on the 21st of January and asked if that was correct, to which Appellant answered, “Yes, your Honor.” R.15-16. The military judge then stated: “So, counsel it appears to me that the accused[‘s] statutory right to three days between service of charges and day of trial has been met,” and the defense counsel answered “Yes, sir, it has.” R.16. Whereupon, counsel indicated that the defense had no motions at that time and that the accused was ready to enter pleas. Thereafter, Appellant pled guilty to both charges and specifications pursuant to a pretrial agreement, which he had signed six days earlier. From these facts, we conclude that Appellant was fully aware of the referred offenses more than three days before trial and that he waived or forfeited any issue with respect to service of those charges on him. Furthermore, we discern no prejudice to Appellant from service of charges on him before they were referred rather than after. There is no indication that the preferred charges differed in any respect from those referred to trial.
IV
Turning to the fourth assignment of error, we are advised that, during Appellant‘s 70 days of pretrial confinement, he was deprived of basic health and comfort items, such as toothpaste, shaving cream, and razors, that his command failed to provide. Appellant contends that this deprivation constitutes unlawful pretrial punishment in violation of
In argument on sentence at trial, Appellant‘s counsel spoke of the command‘s responsibility to make sure that he had what he needed while in pretrial confinement and that the failure to provide basic health and comfort items amounted to punishment. Appellant did not request the judge to give credit for this asserted punishment, but he cites U.S. v. Huffman, 40 M.J. 225, 227 (1994) for the proposition that failure to request credit at trial for unlawful pretrial punishment does not bar appellate consideration of that issue, absent “an affirmative, fully developed waiver on the record.” He notes, however, that the Court of Appeals for the Armed Forces has held in two recent cases that arguing the conditions of pretrial confinement to members without requesting appropriate relief from the military judge pursuant to
Conclusion
We have reviewed the record in accordance with
Judges KANTOR and WESTON Concur.
For the Court
//s//
James P. Magner
Clerk of the Court