

   
   
   
   U.S. v. Rosendahl



UNITED STATES, Appellee
v.
Charles R. ROSENDAHL, Aviation Structural Mechanic
(Egress) Second Class
U.S. Navy, Appellant
 
No. 99-0584
Crim. App. No. 96-1073
 
United States Court of Appeals for the Armed
Forces
Argued January 13, 2000
Decided August 25, 2000
EFFRON, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., SULLIVAN, and GIERKE, JJ., and COX, S.J.,
joined.
Counsel
For Appellant: Major Dale E. Anderson,
USMC (argued)
For Appellee: Lieutenant William C. Minick,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC and Commander
Eugene E. Irvin, JAGC, USN (on brief); Major Troy D. Taylor,
USMC.
Military Judges: D.P. Holcombe (trial) and
Gerald E. Champagne (rehearing)
 

This opinion is subject
to editorial correction before publication.

Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military
judge sitting alone convicted appellant, pursuant to his pleas, of carnal
knowledge and 3 specifications of committing indecent acts with a minor,
in violation of Articles 120 and 134, Uniform Code of Military Justice,
10 USC §§ 920 and 934, respectively. He was sentenced to a bad-conduct
discharge (BCD), confinement for 4 months, forfeiture of $500.00 pay per
month for 4 months, and reduction to the lowest enlisted grade. The convening
authority approved the sentence and, pursuant to a pretrial agreement,
suspended that portion of the forfeitures in excess of $350.00 pay per
month for 4 months and reduction below the grade of E-4 for a period of
6 months.
Upon initial review by the Court of Criminal
Appeals in April 1997, the case was returned for a new staff judge advocate's
recommendation and convening authority's action. Following this remand,
a different convening authority again approved the sentence and, pursuant
to the pretrial agreement, suspended that portion of the forfeitures in
excess of $350.00 pay per month for 4 months and reduction below the grade
of E-4 for a period of 6 months.
Upon further review, the Court of Criminal
Appeals affirmed the carnal-knowledge conviction but set aside the findings
as to the three indecent-acts specifications and the sentence. 47 MJ 689,
695 (Dec. 1997). The case was returned to the convening authority, who
ordered a rehearing on the indecent-acts specifications and the sentence.
At the rehearing, a new military judge sitting
alone convicted appellant, pursuant to his pleas, of the three specifications
of committing indecent acts with a minor. At sentencing, the military judge
considered both the carnal-knowledge conviction from the original trial
and the indecent-acts convictions resulting from the rehearing. Appellant
was sentenced to a bad-conduct discharge and reduction to the lowest enlisted
grade. The sentence did not include confinement or forfeitures.
The convening authority approved this sentence
and, pursuant to the pretrial agreement, suspended reduction below the
grade of E-4 for 6 months. The Court of Criminal Appeals in 1999 affirmed
these findings and sentence, after ordering relief under United States
v. Gorski, 47 MJ 370 (1997).
On appellants petition, we granted review
of the following issue:



WHETHER APPELLANT IS ENTITLED TO RELIEF FOR
SERVING 120 DAYS OF POST-TRIAL CONFINEMENT AS PART OF A SENTENCE WHICH
WAS LATER SET ASIDE AND WHERE SUBSEQUENT REHEARING ADJUDGED NO CONFINEMENT.



For the reasons set forth below, we affirm the
1999 decision of the Court of Criminal Appeals.

I. BACKGROUND
A. Sentence limitation considerations at
the rehearing
At the outset of the rehearing, the military
judge noted that he was "not aware of what the sentence imposed at the
earlier hearing was . . . ." Appellant made no motions and entered pleas
of guilty to the three specifications alleging indecent acts upon a minor.
When asked during the providence inquiry what advice he had given to appellant
concerning the maximum sentence, defense counsel disclosed the sentence
adjudged at the initial trial and stated, "So, that would be the maximum
punishment that he could receive at the rehearing." Trial counsel concurred.
After discussing the continued vitality of appellants original pretrial
agreement with counsel, the military judge announced that the maximum sentence
at the rehearing would be the sentence "adjudged" at the original trial.
During defense counsel's sentencing argument,
defense counsel briefly mentioned that appellant had served a period of
confinement for his crimes: "Petty Officer Rosendahl has been punished
for this once. He went to the brig. He was released." The military judge
when announcing the sentence did not state on the record whether he credited
any punishment previously served when he adjudged the sentence at the rehearing.

B. The convening authority's action
In his clemency petition to the convening authority
following the rehearing, defense counsel requested disapproval of the bad-conduct
discharge. He supported this request, in part, on the ground that appellant
had served 120 days of confinement as part of the sentence at the original
trial, which sentence had been set aside. Noting that the sentence at the
rehearing did not include confinement, defense counsel added:



Unfortunately, AME2 Rosendahl cannot go back
in time. The Government cannot undo AME2 Rosendahls 120 days of unjust
confinement. The only way the Government can compensate AME2 Rosendahl
for its mistake is to disapprove his bad-conduct discharge. . . . AME2
Rosendahls 120 days of confinement was adjudged at an unfair hearing.
The only way to correct this injustice is to disapprove AME2 Rosendahls
bad-conduct discharge.



The convening authority approved the sentence
as adjudged. Pursuant to the pretrial agreement, the convening authority
suspended any reduction below the grade of E-4 for a period of 6 months.
In his action, he also stated, "The accused will be credited with any portion
of the punishment served from 15 February 1996 until 24 May 1996 under
the sentence adjudged at the former trial of this case."

II. DISCUSSION
A. Former jeopardy and credit for prior
punishment
The Fifth Amendment to the Constitution provides
that no person will "be subject for the same offence to be twice put in
jeopardy of life or limb." This constitutional protection against double
jeopardy applies to three circumstances: (1) trial "for the same offense
after acquittal"; (2) trial "for the same offense after conviction"; and
(3) "multiple punishments for the same offense." North Carolina v. Pearce,
395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
In Pearce, the Supreme Court held that
the constitutional protection against double jeopardy "is violated when
punishment already extracted for an offense is not fully credited in
imposing sentence upon a new conviction for the same offense." Id.
at 718. With respect to confinement, the Court noted that if a defendant
is acquitted at a second trial, "there is no way the years he spent in
prison can be returned to him. But if he is reconvicted, those years can
and must be returned - by subtracting them from whatever new sentence
is imposed." Id. at 719. This mandatory credit applies not only
to prison time served, but also to any good time credited under the original
sentence and to any fines paid under the original sentence. Id.
at 718 n. 12 and 719 n. 13.
The prohibition against double jeopardy for
servicemembers is implemented in the UCMJ under Article 44, 10 USC §
844, entitled "Former jeopardy," which provides in subsection (a):
"No person may, without his consent, be tried a second time for the same
offense." When a rehearing is authorized, Article 63, UCMJ, 10 USC §
863 (1983), prohibits trial "for any offense of which" the accused was
acquitted at the original trial, and also provides that "no sentence in
excess of or more severe than the original sentence may be approved, unless
the sentence is based upon a finding of guilty of an offense not considered
upon the merits in the original proceedings, or unless the sentence prescribed
for the offense is mandatory." Article 75(a), UCMJ, 10 USC 875(a), provides
that "all rights, privileges, and property affected by an executed part
of a court-martial sentence which has been set aside or disapproved, except
an executed dismissal or discharge, shall be restored unless a new trial
or rehearing is ordered and such executed part is included in a sentence
imposed upon the new trial or rehearing."
As a general matter, a court-martial, including
a rehearing, may adjudge any punishment authorized by the Manual. See
RCM 1002, Manual for Courts-Martial, United States (1998 ed.). Rehearings
are constrained, however, by specific limitations on the sentence that
may be approved by the convening authority. "[O]ffenses on which a rehearing,
new trial, or other trial has been ordered shall not be the basis for an
approved sentence in excess of or more severe than the sentence ultimately
approved by the convening or higher authority following the previous trial
or hearing, unless the sentence prescribed for the offense is mandatory."
RCM 810(d)(1). As to the effect of any punishments executed or otherwise
actually served, after a rehearing an "accused shall be credited with any
kind or amount of the former sentence included within the new sentence
that was served or executed before the time it was disapproved or set aside."
RCM 1107(f)(5)(A); cf., United States v. Ruppel, 49 MJ 247,
252-53 (1998).
In summary, the current structure of the former-jeopardy
provisions in the Code and Manual provides each of the three components
of the constitutional prohibition against former jeopardy. In the military,
as in civilian life, the following are prohibited: (1) trial for the same
offense after acquittal; (2) trial for the same offense after conviction;
and (3) multiple punishments for the same offense.

B. Impact of the sentence upon rehearing
Although appellant was sentenced to confinement
at his original trial, confinement was not adjudged at his rehearing. Under
these circumstances, directly crediting appellant with 120 days' combined
confinement and good-time credit provided no actual relief. Appellant contends
that alternative relief must be afforded by ensuring that his sentence
does not include a punitive discharge. Final Brief at 10.
We note that in the related area of pretrial
confinement, the Manual for Courts-Martial has adopted certain equivalencies
to provide meaningful credit for improper pretrial confinement. RCM 305(k).
Where the credit due for improper confinement exceeds the amount of confinement
that had been adjudged, credits awarded under RCM 305(k) "shall be applied
against hard labor without confinement, restriction, fine, and forfeiture
of pay, in that order, . . ." Under the provisions of the Manual formula,
1 day of confinement is equivalent to 2 days of restriction, 1 1/2 days
of hard labor without confinement, total forfeiture for 1 day, or that
portion of a fine amounting to 1 day of total forfeiture. See RCM
1003(b)(6)-(7) and 305(k).
RCM 305(k), however, does not authorize application
of the credit against two types of punishment: reduction and punitive separation.
As noted in the Drafter's Analysis of RCM 305(k), "This is because these
penalties are so qualitatively different from confinement that the fact
that an accused has served confinement which was technically illegal should
not automatically affect these forms of punishment." Manual, supra
at A21-20.
Similar considerations should govern application
of credits for punishment imposed at an earlier court-martial for purposes
of addressing former-jeopardy concerns. We are confident that military
judges who preside over rehearings are fully capable of determining the
proper credits, applying the concepts set forth in RCM 305(k) to any sentence
adjudged at a rehearing. After the sentence is adjudged and the terms of
any applicable pretrial agreement have been examined, the military judge
should consider the matter of proper credits, including necessary equivalencies,
and announce on the record how those credits shall be applied. Thereafter,
it is the responsibility of the convening authority to apply those credits
to the approved sentence. If action by the convening authority requires
some modification of the announced credits in order to provide complete
credit, the convening authority can ensure proper and complete credit with
the advice of his or her staff judge advocate.
In most cases, the monetary equivalencies provided
under RCM 305(k) will permit quantifiable credit for punishment imposed
at a first trial when different punishment is imposed at a second. With
respect to reduction and punitive separation, however, we agree with the
Drafter's Analysis that these punishments are "qualitatively different"
from confinement. In that regard, we note that these personnel-related
punishments are not applicable in civilian criminal trials. Accordingly,
we do not read Pearce as requiring credit against punishments unique
to military life where there is no readily measurable equivalence between
confinement and the personnel-related punishments of reduction and punitive
separation.
The 120 days' confinement with which appellant
must be credited is so different from a punitive discharge that we do not
find them to be equivalent in this case.*
We decline to create an equivalence between two such traditionally distinct
types of punishment, particularly where the period of confinement to be
credited is relatively short. Whether a different result might be warranted
in a case involving lengthy confinement is a matter we need not address
until such a case is presented to us.

III. CONCLUSION
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
*We
express no opinion regarding the unrelated issue of a convening authoritys
clemency power to commute a BCD to a term of confinement. See United
States v. Brown, 13 USCMA 333, 32 CMR 333 (1962).


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