

   
   
   
   U.S. v. Rock



In the case of
UNITED STATES, Appellee
v.
Jason L. ROCK, Private First Class
U. S. Army, Appellant
 
No. 98-0947
Crim. App. No. 9700192
 
THE UNITED STATES COURT OF APPEALS FOR THE
ARMED FORCES
Argued April 7, 1997
Decided September 30, 1999
 

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


Counsel
For Appellant: Captain Scott
A. De La Vega (argued); Colonel John T. Phelps II, Lieutenant
Colonel Adele H. Odegard, and Captain Kirsten V. Campbell-Brunson
(on brief); Major Holly S. G. Coffey and Captain Paul Fiorino.
For Appellee: Captain Marcella
Edwards-Burden (argued); Colonel Russell S. Estey, Lieutenant
Colonel Eugene R. Milhizer, and Major Patricia A. Ham (on brief);
Captain Daniel G. Brookhart.
Military Judge: Peter E. Brownback,
III.
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


COX, C.J., delivered the opinion of the Court.

I
In this case, the military judge awarded appellant
240 days (8 months) of credit against the adjudged sentence to confinement,
as a result of pretrial conditions on appellants liberty not amounting
to confinement. Appellant had pleaded guilty pursuant to a pretrial agreement
that limited confinement to 3 years (36 months).1/
The military judge, sitting alone as a general court-martial and not then
knowing the terms of the pretrial agreement, in effect sentenced appellant
to 61 months confinement, which he then reduced to 53 months as a result
of the credit.2/
In accordance with the pretrial agreement,
the convening authority approved confinement of 3 years, less 3 days credit
for pretrial confinement actually served by appellant. The Court of Criminal
Appeals affirmed in an unpublished opinion.
Appellant now contends that the military judge
erred in applying the credit to the adjudged sentence, rather than to the
limitation established by the pretrial agreement. 51 MJ 130-31 (1998).
In other words, appellant contends the 8 months of pretrial credit should
have reduced the 36 months to 28 months, rather than reducing the 61 months
to 53 months. We now hold that neither the military judge nor the convening
authority erred, and we affirm.

II
Appellant was tried in Baumholder, Germany,
on January 27, 1997, for offenses committed between November 1995 and August
1996. In limine, he moved to dismiss the Charges and specifications
for lack of a speedy trial. See RCM 707, Manual for Courts-Martial,
United States (1995 ed.). He also asserted that his pretrial restriction
amounted to confinement, and he moved for credit against any approved sentence
to confinement. See RCM 305(k). Finally, he contended that his pretrial
treatment constituted punishment, in violation of Article 13, Uniform Code
of Military Justice, 10 USC § 813, and he moved for additional credit
against any approved sentence to confinement.
After conducting an evidentiary hearing and
considering the various stipulations of fact and memoranda of law submitted
by the parties, the military judge denied the motion to dismiss for lack
of a speedy trial. In addition, the judge ruled that "the conditions on
liberties imposed by the company commander did not amount under the totality
of the circumstances to restriction tantamount to confinement." Further,
the judge concluded that there was "no intent on the part of the company
commander and the first sergeant to punish the accused prior to trial."
Indeed, the military judge "commend[ed] the commander and the first sergeant
for their actions to ameliorate the accuseds situation while he [appellant]
was pending trial." (Id.)
Nevertheless, "considering as a whole, the
accused being deprived of his right to train as an 11 mike [his military
occupational specialty], the accuseds service in a squad which basically
performed details, and the conditions on the accuseds liberty during the
period of time," the military judge found that appellant "was in fact punished
[pretrial], as that term is used in Article 13." Further, the judge ruled
that "the period of such punishment . . . [was] 160 days." Accordingly,
he awarded appellant credit at the rate of "1.5 days credit per day of
punishment," for a total of 240 days credit against confinement.
There are no issues before us concerning the
correctness of the judges rulings on speedy trial, the conditions of and
effects on appellants liberty, or the ratable calculation of credit. The
only issue before us relates to the point from which the credit against
confinement should be applied.

III
The issue of credit for pretrial confinement
and/or punishment has a long history in military law. From its inception,
Article 13 has forbidden pretrial punishment, as well as arrest or confinement
more rigorous than necessary to assure the accuseds presence at trial.
Because pretrial confinement was not considered punishment, there was no
automatic credit for pretrial confinement as recently as 1982. United
States v. Davidson, 14 MJ 81 (CMA 1982). This led to the anomalous
situation that an accused might stay behind bars considerably longer than
the maximum period of confinement authorized by law for his offenses. Id.
However, in United States v. Allen,
17 MJ 126 (CMA 1984), we construed a Department of Defense Instruction
as requiring, consistent with federal law, day-for-day credit for legal
pretrial confinement. Commonly referred to as "Allen" credit, this
apparently has not been incorporated into the Manual for Courts-Martial,
although credit for illegal pretrial confinement has been incorporated.
RCM 305(k) and 1107(f)(4)(F). "Mason" credit, named after our order
in United States v. Mason, 19 MJ 274 (CMA 1985), extends Allen
credit to "pretrial restriction equivalent to confinement."
Many opinions over the years have addressed
whether restriction or other "conditions on liberty" were equivalent, or
"tantamount," to confinement. E.g., United States v. King,
30 MJ 59 (CMA 1990); United States v. Guerrero, 28 MJ 223 (CMA 1989);
United States v. Facey, 26 MJ 421 (CMA 1988); United States v.
Bradford, 25 MJ 181 (CMA 1987); United States v. Burrell, 13
MJ 437 (1982); United States v. Powell, 2 MJ 6 (CMA 1976); United
States v. Schilf, 1 MJ 251 (CMA 1976).
In United States v. Pierce, 27 MJ 367
(CMA 1989), the accused accepted nonjudicial punishment for an offense,
but was later court-martialed for the same and other offenses. We rejected
Pierces contention that the imposition of nonjudicial punishment barred
the court-martial charge, but we held, on due process grounds, that servicemembers
had to "be given complete credit for any and all nonjudicial punishment
suffered: day-for-day, dollar-for-dollar, stripe-for-stripe." Id.
at 369. "Pierce" credit has likewise not received Manual recognition.
In United States v. Suzuki, 14 MJ 491
(CMA 1983), we sustained a military judges award of more than day-for-day
credit for illegal pretrial confinement amounting to punishment.
Cf. United States v. Cruz, 25 MJ 326 (CMA 1987)(rehearing
on sentence ordered so that prior punishment could be considered by court-martial,
where accused had been subjected to public pretrial humiliation by the
command). "Suzuki" credit, a military judges authority to grant
more than day-for-day credit in unusual cases, is now explicitly recognized
in the Manual. See RCM 305(k), Manual, supra (1998 ed.).

IV
None of these cases involving credit against
confinement discuss the point from which the sentence is to be reduced
by the credit. The answer, however, is quite simple. Pretrial agreements
are a product of a bargaining process between an accused and a convening
authority. United States v. Acevedo, 50 MJ 169, 172 (1999). These
agreements operate separately and apart from sentences of courts-martial,
and often they override lawfully adjudged sentences. Military judges, however,
are not parties to pretrial agreements. See RCM 705. No authority
has been given to them to embellish or embroider these agreements. Thus,
credit against confinement awarded by a military judge always applies
against the sentence adjudged -- unless the pretrial agreement itself dictates
otherwise.
Where there is no pretrial agreement in effect,
of course, the credit can only be applied against the adjudged sentence;
there is no other possibility. The adjudged sentence becomes the maximum
punishment. Any and all credits against it must reduce it to that extent.
Here, of course, the military judge did just that.
The situation is essentially the same, moreover,
where the adjudged sentence to confinement turns out to be less than the
sentence cap negotiated in a pretrial agreement. Again, the adjudged sentence
becomes the maximum punishment; the pretrial agreement, being higher, does
not operate. Any and all credits can only be applied against the adjudged
(lesser) sentence.
Where there is a pretrial agreement that sets
out a lesser limitation than that adjudged by the court-martial, however,
a different result obtains. Where the agreement establishes a maximum confinement,
for example, that is less than that adjudged by the court-martial, that
lesser limit becomes the maximum total confinement that the accused
lawfully can be made to serve. Where portions of that confinement
have already been served, actually or constructively, the credit applies
against the agreement, otherwise the accuseds sentence will exceed the
maximum lawful limit.
Thus the question here is, what did the agreement
provide? It provided that the convening authority would "[d]isapprove any
confinement adjudged in excess of three (3) years." (Emphasis added.)
The period of time credited by the military judge, however, did not involve
confinement, nor was it tantamount to confinement. Therefore, the period
in question was not affected by the agreement, and neither the judge nor
the convening authority erred in not crediting the time against the agreement
limitation.
Servicemembers are not entitled to sentence
credit against confinement for any and all time during the pendency of
court-martial charges, even if restraints on liberty which are not tantamount
to confinement are imposed. Such periods of restraint, however, can often
be useful to the defense in mitigation. Here, for example, the defense
was successful in convincing the military judge to reduce the adjudged
sentence due to the restraint. No one could have known whether the adjudged
sentence would turn out to be greater or lesser than the pretrial agreement.
Had the adjudged sentence been lesser than the agreement, the pretrial
restraint would have been effective in substantially reducing appellants
sentence.
Furthermore, the fact of pretrial restraint
can be a useful bargaining tool for the defense in negotiating an acceptable
pretrial agreement: "How about disapproving confinement in excess of 36
months, rather than the 48 months you are proposing, due to the lengthy
pretrial restraint the accused has endured." For all we know, trial defense
counsel engaged in exactly such negotiations in this case.
One thing is clear, however. Pretrial confinement,
or its equivalent, cannot be bargained away in arriving at a sentence limitation.
For it is the Secretary of Defense himself who has mandated that the armed
forces comply with federal practice and credit pretrial confinement. United
States v. Allen, supra. Under the circumstances of this case,
however, no error has occurred.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1/
The military judge accepted appellants pleas of guilty to 2 specifications
of conspiracy to distribute drugs, 2 specifications of absence without
leave, and 8 specifications of use, possession with intent to distribute,
and distribution of drugs, in violation of Articles 81, 86, and 112a, Uniform
Code of Military Justice, 10 USC §§ 881, 886, and 912a, respectively.
2/
Literally, the judge announced a sentence to confinement of 53 months,
which he explained included 8 months of credit. The balance of the sentence
adjudged included reduction to E-1, total forfeitures, and a dishonorable
discharge.
 
 
EFFRON, Judge (concurring in part and in the
result).
The majority holds that in a case involving
pretrial punishment not tantamount to confinement, it is appropriate to
apply any credit against the sentence adjudged at trial rather than the
sentence approved by the convening authority. In the absence of a precedent
requiring a different result, I agree that the military judge did not err
in this case.
I note, however, that this result produces
an anomaly where there has been a pretrial agreement limiting the maximum
confinement that may be approved by the convening authority. If a servicemember
has been subjected to illegal pretrial punishment consisting of (or tantamount
to) confinement, the convening authority must apply the credit in a manner
that provides effective relief. United States v. Suzuki, 14 MJ 491
(CMA 1983). In the present case, for example, if the pretrial punishment
had been tantamount to confinement, then the 8 months' credit would have
been applied against the 36-month maximum confinement period under the
pretrial agreement. See United States v. Larner, 1 MJ 371
(CMA 1976); see also United States v. Suzuki, supra.
This would have produced a sentence of 28 months. In the present case,
however, appellant has received no such relief despite the ruling by the
military judge that the remedy for illegal pretrial punishment required
a credit of 8 months.
In the present case, the improper punishment
involved actions not tantamount to confinement, so the credit was not applied
against the maximum sentence imposable under the pretrial agreement, but
instead was applied against the adjudged sentence. Because the adjudged
sentence (whether designated as 63 or 51 months), as reduced by the 8-months'
credit was greater than the 36 months provided for in the pretrial agreement,
appellant received no relief, despite the military judge's determination
that he had suffered illegal punishment so serious that it warranted 8
months confinement credit.
There does not appear to be any significant
policy reason that would explain why 8-months' confinement credit in the
case of one type of punishment should be applied against the maximum sentence
that could be approved by the convening authority (i.e., the maximum imposable
under a pretrial agreement), while the credit for another type of punishment
is applied against the adjudged sentence without regard to a pretrial agreement.
This anomaly is subject to further distortions if consideration of the
potential initial release date is taken into account. See United
States v. Larner, 1 MJ 371 (CMA 1976).
I would hold, prospectively, that confinement
credit be applied in the same manner for all types of pretrial confinement
and pretrial punishment, and that it be applied against the sentence that
may be approved by the convening authority, rather than the sentence adjudged
at trial. This would eliminate speculation as to whether the court-martial
actually granted relief, and would ensure  under United States v. Suzuki,
supra -- that an adjudication of illegal pretrial punishment results
in effective relief.
 
 
SULLIVAN, Judge (concurring in the result):
This is an unusual case on its facts because
the unlawful pretrial punishment did not entail unlawful pretrial confinement.
The military judge felt that a judicial credit was warranted for
appellants maltreatment. Cf. United States v. Suzuki, 14
MJ 491 (CMA 1983); United States v. Larner, 1 MJ 371 (CMA 1976).
The majority establishes a procedure for this situation different from
that where administrative credit is ordered for lawful or unlawful
pretrial confinement. Id. While I question the need for still another
special rule (see RCM 305k and 1107(f)(4)(F), Manual for Courts-Martial,
United States (1995 ed.)), I find no prejudicial error occurred in this
case. Cf. United States v. Gammons, 51 MJ 169 (1999) (procedure
established to address prior punishment under Art. 15, UCMJ, 10 USC §
815).
It is clear that the military judge intended
that appellant be given 8 months of confinement credit for unlawful pretrial
punishment in violation of Article 13, UCMJ. It is just as obvious that
he intended this credit be applied to the adjudged sentence. In fact, he
specifically denied a motion of appellant to apply this credit to his sentence
as approved by the convening authority. Thus, the military judges intent
to afford a judicial remedy of limited and special nature, while irregular,
was not flouted in this case. Cf. Suzuki, supra at
493.

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