

   
   
   
   U.S. v. Dawson



IN THE CASE OF
UNITED STATES, Appellee
v.
Kasie L. DAWSON, Private
U.S. Marine Corps, Appellant
 
No. 98-0434
Crim. App. No. 96-2394
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued December 16, 1998
Decided September 9, 1999
EFFRON, J., delivered the opinion of the Court,
in which COX, C.J., and SULLIVAN, CRAWFORD, and GIERKE, JJ., joined.

Counsel
For Appellant: Lieutenant
J. L. Eichenmuller, JAGC, USNR (argued).
For Appellee: Major Clark
R. Fleming, USMC (argued); Colonel K. M. Sandkuhler, USMC, and
Commander D. H. Myers, JAGC, USN (on brief); Colonel Charles
Wm. Dorman, USMC.
Military Judge: J. A. Bukauskas
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Judge EFFRON delivered the opinion of the Court.
A special court-martial composed of a military
judge sitting alone convicted appellant, pursuant to her pleas, of six
specifications of making and uttering worthless checks by dishonorably
failing to maintain sufficient funds, and one specification of breaking
restriction, in violation of Article 134, Uniform Code of Military Justice,
10 USC § 934. She was sentenced to confinement for 100 days and a
bad-conduct discharge. The convening authority approved that portion of
the sentence that provided for a bad-conduct discharge, and the
Court of Criminal Appeals affirmed in an unpublished opinion.
On appellants petition, we granted review
of the following issue:



WHETHER THE NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS ERRED WHEN IT HELD THAT A POST-TRIAL AGREEMENT BETWEEN
THE CONVENING AUTHORITY AND APPELLANT WAS VALID ALTHOUGH IT EFFECTED A
RETROSPECTIVE WAIVER OF NUMEROUS VIOLATIONS OF APPELLANT'S SUBSTANTIAL
DUE PROCESS RIGHTS.



For the reasons set forth below, we hold that
the agreement between appellant and the convening authority was valid under
the circumstances of this case.

I. BACKGROUND
Prior to trial, appellant and the convening
authority entered into a pretrial agreement under which any adjudged confinement
would be treated as follows: The first 30 days would be converted into
1.5 days of restriction for each day of confinement. Any confinement in
excess of 30 days would be suspended.
At trial, appellant received a sentence that
included confinement for 100 days. Under the pretrial agreement, the convening
authority placed appellant on restriction immediately after the trial.
The staff judge advocate (SJA) subsequently determined that this was improper,
apparently on the ground that the pretrial agreement contemplated that
restriction would not commence until after the convening authority's action
on the findings and sentence. While on restriction, appellant missed a
muster, and thereafter she was informed that a proceeding would be held
to vacate the suspended sentence on the basis that missing the muster constituted
the offense of breaking her restriction.
At this point, appellant did not challenge
these matters through available legal processes, such as a request for
a post-trial session under Article 39(a), UCMJ, 10 USC § 839(a),
before the military judge, a submission to the convening authority in response
to the notification of the vacation proceeding, or an Article 138,
UCMJ, 10 USC § 938 complaint. Instead, appellant absented herself
and was administratively placed in desertion status.
The command then held a proceeding under RCM
1109, Manual for Courts-Martial, United States (1995 ed.), in appellant's
absence and without defense counsel being present. This resulted in vacation
of the suspended sentence. The SJA later concluded that this proceeding
was illegal.
Subsequently, appellant was apprehended and
placed in confinement. The SJA also concluded that the period of confinement
included a substantial period of illegal confinement as a result of the
command's failure to conduct a pretrial confinement hearing under RCM 305.
During this period, appellant was charged with desertion for the absence
that occurred after the trial.
These events transpired after the trial on
the initial offenses but prior to action by the convening authority on
the results of that trial. While the convening authority's action was pending,
trial defense counsel submitted clemency matters under RCM 1105, requesting
that the convening authority: (1) dismiss the new charge of absence which
arose after the trial, and (2) credit the period of confinement served
as part of the suspended portion of the sentence.
In a separate initiative, appellant entered
into an agreement with the convening authority in which she agreed to waive
her right to appear at a hearing to vacate the suspension of her sentence.
She also agreed that the convening authority would no longer be bound by
the pretrial agreement and could approve the original sentence without
suspending confinement. In return, the convening authority agreed to withdraw
the new charge concerning appellants absence after the trial, and to provide
day-for-day credit toward her sentence for all the time served in "pretrial
confinement" for the absence offense that occurred after the trial.
The SJA subsequently advised the convening
authority that, as a matter of law, any illegal pretrial confinement connected
to the offense that occurred after the original trial need not be addressed
in the context of the post-trial action on the original trial; instead,
the illegal confinement arising out of the post-trial offense could be
addressed in any further proceedings on the post-trial offense. The SJA
also advised the convening authority that, in view of the numerous errors
in the original case, the convening authority should disapprove all confinement.
The SJA's recommendation was served on the defense counsel, who expressly
urged the convening authority to adopt it. The convening authority then
approved the findings and the bad-conduct discharge and disapproved all
adjudged confinement.

II. DISCUSSION
This case does not involve post-trial renegotiation
of a judicially approved pretrial agreement; nor does it otherwise threaten
to undermine the purposes of the judicial inquiry under United States
v. Care, 18 USCMA 535, 40 CMR 247 (1969). The present case involves
separate, post-trial proceedings that are subject to appellate judicial
review, but are not subject to review by the military judge who presided
over the trial.
This case involves a person who, as a result
of her own post-trial misconduct, faced two matters within the cognizance
of the command that are not subject to review by the military judge who
presided at trial: (1) a vacation proceeding under RCM 1109 for allegations
of post-trial misconduct, and (2) a charge growing out of that conduct
that could lead to a separate court-martial. The servicemember requested
specific relief from the command and negotiated directly with the command
to obtain that relief. The issue before us is whether, in this context,
we should preclude a commander from dismissing a charge or forgoing a vacation
proceeding without the approval of a military judge.
The circumstances of this case do not require
us to set aside appellant's bad-conduct discharge. If appellant believed
that her restriction after trial violated her pretrial agreement, she could
have requested a post-trial session before a military judge to clear up
the matter. See RCM 1102.
Instead, appellant resorted to self-help after
the trial and departed under circumstances that led to the new charge of
illegal absence. Under these circumstances, she faced two possibilities
after her apprehension. First, she faced the possibility of a new proceeding
to vacate her suspended sentence, based on a charge of misconduct growing
out of her breach of restriction and later absence. This proceeding would
have replaced and could have corrected the earlier, flawed vacation proceeding.
If held, it could have led to a requirement that she serve her 100-day
sentence to confinement. This would have mooted any complaint that she
had about her post-apprehension confinement, except for any credit that
she might have received for premature imposition of the restriction.
Second, she faced the possibility of a new
court-martial for desertion. See Art. 85, UCMJ, 10 USC § 885.
Although appellant suggests that a desertion charge may have been harsh,
she has not demonstrated that the command lacked a reasonable basis for
pursuing either desertion or a lesser absence offense. See Art.
86, UCMJ, 10 USC § 886.
In this context, appellant and her defense
counsel sought to minimize her potential liability, in circumstances where
any finding of illegality in her post-trial restriction and her post-apprehension
confinement was not likely to produce substantial relief. She agreed to
waive any claims she might have in connection with the post-trial restriction,
the flawed vacation proceeding, and the post-apprehension confinement.
In return, the command agreed to dismiss the desertion charge. Although
not expressed in the agreement, both appellant and the convening authority
were relieved thereby of the need for a new vacation proceeding that could
have provided for post-apprehension confinement.
In that regard, it is important to note that
a vacation proceeding is collateral to the court-martial and is held within
the command structure. Although RCM 1109 prescribes a range of due process
requirements, the presiding and decision-making officials are commanders,
not a military judge. See RCM 1109(d)(1) and (2).*
Under these circumstances, it is appropriate
for an accused who seeks some benefit from waiving a vacation proceeding
to do so through communications and agreement directly with the convening
authority, without resort to any sort of inquiry by a military judge as
a condition precedent. Even where such an agreement, as in the present
case, results in avoidance of a court-martial and dismissal of a pending
charge -- matters that are also within the prerogative of commanders --
it does not require the approval of a military judge.
In short, appellant waived any complaint about
her post-apprehension confinement or the vacation proceeding held in her
absence. She thereby avoided a new vacation proceeding that could have
effectively validated her post-apprehension confinement and rendered moot
any problem with the earlier vacation proceeding. In return, appellant
avoided a court-martial resulting from the charged desertion. This agreement
was collateral to the court-martial and within the command structure. She
has demonstrated no government overreaching leading this agreement; nor
has she shown any misunderstanding as to its meaning and effect.
Appellant could have contested the legality
of the command's actions in a post-trial Article 39(a) proceeding or in
a second vacation proceeding. Instead, she opted to seek relief directly
from the convening authority. Appellant chose her forum, and under the
circumstances of this case, it was not an unreasonable choice.

III. DECISION
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* Applying the "tunnel
of power" metaphor suggested by Judge Sullivan, appellant's case had passed
through the portion of the tunnel under the control of the military judge
and had entered that portion under the control of the command structure.
See United States v. Boudreaux, 35 MJ 291, 296 (CMA 1992)(Sullivan,
C.J., concurring in the result).

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