

   
   
   
   U.S. v. Gilbert



UNITED STATES, Appellee
v.
Scott L. GILBERT
Machinery Technician Third Class
U.S. Coast Guard, Appellant
 
No. 98-0034
Crim. App. No. 1067
 
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued December 1, 1998
Decided April 21, 1999


COX, C.J., delivered the opinion of the
Court, in which SULLIVAN, CRAWFORD, and GIERKE, JJ., joined. EFFRON, J.,
filed a concurring opinion.
 


Counsel
For Appellant: Lieutenant Sandra K. Selman,
USCGR (argued); Lieutenant Richard R. Beyer, USCGR (on brief).
For Appellee: Lieutenant Susan Polizzotto,
USCGR (argued); Lieutenant William G. Rospars.
Military Judge: Lane I. McClelland
 
 


This opinion is subject
to editorial correction before publication.


Chief Judge COX delivered the opinion of the
Court.

I
This is a companion case to United States
v. Acevedo, No. 97-1164, ___ MJ ___ (1999), also decided this day.
As in Fireman Acevedos case, we granted two issue for review here: Whether,
under the terms of the pretrial agreement, the convening authority was
required to suspend appellant Gilberts bad-conduct discharge; and whether
the evenly split decision of the Court of Criminal Appeals constituted
an affirmance of the bad-conduct discharge. 49 MJ 132 (1998); see
46 MJ 830 (1997). As in Acevedos case, we now affirm.1/

II
Appellant Gilberts trial occurred one day
after Acevedos trial, before the same military judge in Seattle, Washington.
As in Acevedos case, the judge sat alone as a general court-martial. Pursuant
to his pleas, appellant was convicted of attempting to pawn and receive
cash for Coast Guard equipment and supplies, without proper authority;
conspiracy to steal military clothing for later unauthorized sale; wrongful
disposition of military property (2 specifications); and larceny of military
property (2 specifications).2/
The military judge sentenced appellant to confinement
for 12 months, reduction in grade to E-2, forfeiture of all pay and allowances
for 12 months, and a bad-conduct discharge. Although the military judge
recommended that the bad-conduct discharge be suspended, the convening
authority declined to do so. Instead, he approved the sentence as adjudged,
except that confinement in excess of 6 months and forfeitures exceeding
two-thirds pay per month for 6 months were suspended for 12 months, in
accordance with the terms of the pretrial agreement.
As indicated, the Court of Criminal Appeals,
sitting en banc, was evenly divided as to whether the convening authority
could approve a bad-conduct discharge in appellants case, and whether
the split decision should constitute an affirmance or a disapproval of
the punitive discharge. The court was unanimous, however, in agreeing that,
under our precedents, the effect of the split decision was to sustain the
sentence as approved by the convening authority. 46 MJ at 839.

III
At trial, the military judge conducted an appropriate
inquiry into the providence of appellants pleas of guilty, ensuring that
they were factually based. See United States v. Care, 18
USCMA 535, 40 CMR 247 (1969). The judge also ascertained on the record,
prior to entering findings, that appellant understood the meaning and effect
of his pretrial agreement. See United States v. Green, 1
MJ 453 (CMA 1976); United States v. King, 3 MJ 458 (CMA 1977).
Regarding the sentence limitation portion of
the agreement, which at that point the military judge had not seen, appellant
personally assured the judge that he had read it thoroughly and understood
it before signing it. Nevertheless, the judge caused appellant to reread
the sentence portion of the agreement in court. Again, appellant affirmed
that he understood "the maximum punishment that the convening authority
may approve."
Regarding the actual terms of the agreement,
defense counsel 3/
explained that they had originated from the defense, after extensive consultation
with appellant. Appellant affirmed that he had had "enough time to discuss
. . . [the case] with . . . [his] defense counsel."
After announcing sentence, including the recommendation
that the bad-conduct discharge be suspended, the military judge was provided,
for the first time, a copy of the sentence limitation portion of the agreement.
With respect to punitive discharge, the agreement provided:



A punitive discharge may be approved as adjudged.
If adjudged and approved, a dishonorable discharge will be suspended for
a period of 12 months from date of court-martial at which time, unless
sooner vacated, the dishonorable discharge will be remitted without further
action.



A bad-conduct discharge was not specifically mentioned.
Upon reviewing the agreement, the military
judge observed that the effect of it appeared to be that that portion of
the sentence involving confinement in excess of 6 months and forfeitures
in excess of two-thirds pay for 6 months would be suspended. Trial counsel,
defense counsel, and appellant all agreed that that was indeed the effect
of the pretrial agreement. No comment was heard with respect to the
military judges recommendation that the convening authority suspend the
bad-conduct discharge, which would have been an empty gesture if the agreement
already required it.
Thereafter, the military judge explained to
appellant his posttrial rights. Neither then nor at any other time prior
to adjournment of the court-martial was any objection raised by any party
as to the meaning and effect of the pretrial agreement, as articulated
by the military judge.
Posttrial, the staff judge advocate prepared
a recommendation for the convening authority, pursuant to RCM 1106, Manual
for Courts-Martial, United States (1995 ed.). Therein, the staff judge
advocate noted that the military judge had adjudged a sentence which included
a bad-conduct discharge and that the judge had recommended that the convening
authority suspend it. The recommendation noted that the terms of the pretrial
agreement required that confinement in excess of 6 months and forfeitures
in excess of two-thirds pay for 6 months be suspended for 12 months. Finally,
the staff judge advocate recommended that the convening authority approve
the bad-conduct discharge, as adjudged.
The defense did not object to the content of
the posttrial recommendation. Indeed, by way of a petition for clemency
under RCM 1105, the defense acknowledged the imposition of the bad-conduct
discharge but argued that the convening authority should suspend it consistent
with the leniency recommendation of the military judge.
On initial appeal to the Court of Criminal
Appeals, appellant again did not assert impropriety in the convening authoritys
approval of the bad-conduct discharge. That court, however, sua sponte
raised the issue and invited the parties to brief it. See 46 MJ
at 831. This review by the intermediate appellate tribunal led to the split
decision previously noted.

IV
For the same reasons indicated in our opinion
in United States v. Acevedo, supra, we hold that a bad-conduct
discharge was a lawful punishment in appellants case; that the pretrial
agreement did not require the convening authority to suspend the bad-conduct
discharge; and that he did not err in approving it.
The agreement was unambiguous. Its plain language
permitted the approval of an unsuspended bad-conduct discharge. Had the
defense insisted upon presenting an agreement with provision for suspension
of a bad-conduct discharge, they might readily have done so.
Further, nothing in the conduct of the parties,
either before, during, or after the court-martial, or on initial appeal
to the Court of Criminal Appeals, suggests that the defense, including
appellant, was not fully in accord with the meaning and effect of the pretrial
agreement, as interpreted by the military judge. Had the defense, including
appellant, harbored the slightest disagreement with the judges interpretation,
they had abundant opportunity to raise it.
The decision of the United States Coast Guard
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1/ The issue involving
the evenly divided vote of the Court of Criminal Appeals is legally identical
to that in United States v. Acevedo. Accordingly, we resolve it
exactly as we did in that case and need not repeat it here.
2/ Violations
of Articles 80, 81, 108, and 121, Uniform Code of Military Justice, 10
USC §§ 880, 881, 908, and 921, respectively.
3/Appellant
was not represented by the same defense counsel that represented Acevedo.
 
 
EFFRON, Judge (concurring):
I concur. See United States v. Acevedo,
No. 97-1164, __ MJ __ (1999) (Effron, J., concurring).
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