

   
   
   
   U.S. v. Sherman



UNITED STATES, Appellee
v.
Anthony L. SHERMAN, Hospital Corpsman
Second Class
U.S. Navy, Appellant
 
No. 98-0489
Crim. App. No. 96-0840
 
United States Court of Appeals for
the Armed Forces
Argued February 9, 1999
Decided July 15, 1999
SULLIVAN, J., delivered the opinion
of the Court, in which COX, C.J., and GIERKE and EFFRON, JJ., joined. CRAWFORD,
J., filed a dissenting opinion.

Counsel
For Appellant: Captain
Curtis M. Allen, USMC (argued); Lieutenant Commander R. C. Klant,
JAGC, USN (on brief); Lieutenant Lisa C. Guffey, JAGC, USNR, and
Lieutenant Syed N. Ahmed, JAGC, USNR.
For Appellee: Lieutenant
Janice K. OGrady, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, and Commander Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: Ronald
L. Rodgers
 
 


THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge SULLIVAN delivered the opinion
of the Court.
On October 18, 1995, appellant was
tried by a special court-martial composed of a military judge sitting alone
at Marine Corps Base, Quantico, Virginia. Pursuant to his pleas, he was
found guilty of 2 specifications of disrespect to a commissioned officer,
assault with a dangerous weapon, wrongful discharge of a firearm, and communicating
a threat, in violation of Articles 89, 128, and 134, Uniform Code of Military
Justice, 10 USC §§ 889, 928, and 934, respectively. He was sentenced
to a bad-conduct discharge, 150 days confinement, forfeiture of $200.00
pay per month for 5 months, and reduction to pay grade E-1.
On January 4, 1996, the convening authority
approved the sentence as adjudged. Pursuant to a pretrial agreement, however,
he suspended confinement in excess of 100 days for 12 months from the date
of trial. The Court of Criminal Appeals affirmed the findings of guilty
and sentence in an unpublished opinion. On January 16, 1998, that same
court denied appellants requests for reconsideration and a post-trial
evidentiary hearing.
On August 17, 1998, this Court granted
review on the following issues:




I
WHETHER APPELLANTS PRETRIAL AGREEMENT
VIOLATED PUBLIC POLICY BECAUSE IT CONTAINED AN ILLEGAL SUB ROSA
TERM THAT REQUIRED APPELLANT TO WAIVE MOTIONS OF UNLAWFUL COMMAND INFLUENCE
AND ILLEGAL PRETRIAL CONFINEMENT.

II
WHETHER THE LOWER COURT EXCEEDED ITS
FACTFINDING POWERS UNDER ARTICLE 66(c), UCMJ, BY RESOLVING A MATERIAL FACTUAL
DISPUTE WIHTOUT ORDERING AN EVIDENTIARY HEARING.



We hold that a DuBay1
hearing is required to determine whether there was a sub rosa agreement
between the parties not to raise issues of unlawful command influence and
the legality of appellants pretrial confinement. See United
States v. Payton, 23 MJ 379 (CMA 1987); see generally
United States v. Ginn, 47 MJ 236 (1997).
Appellant was placed in pretrial confinement
on July 9, 1995, the date of the alleged offenses, and remained there until
October 17, 1995, approximately 100 days. At trial, he pleaded guilty to
the charged offenses, which concerned a violent disagreement with his command
superiors at an off-duty barbecue for command members at his house. No
motions were made by defense counsel, prior to appellant entering his guilty
pleas or subsequent thereto, concerning unlawful command influence or unlawful
pretrial confinement. Appellant also told the military judge that "the
written agreement [was] the entire agreement between [him] and the convening
authority."
On April 7, 1997, appellant sent a
letter to his appellate defense counsel alleging that unlawful command
influence had affected his trial and that his pretrial confinement was
illegal. He further stated that he understood, "if we brought up these
issues we would loose the pretrial agreement, and the prosecution would
bring new charges to keep me confined for another 120 days." He detailed
in his letter his basis for concluding that unlawful command influence
occurred in his case and why his two pretrial confinement hearings were
also unlawfully influenced by command authorities. He then concluded:



Again, I wanted to raise these issues,
but the deal offered by the prosecution was to agree to the written provisions
of the pretrial agreement, and in addition, to not bring up the issue of
unlawful command influence or the IRO/unlawful confinement issue, or I
would not get the deal. At the time, under the duress of confinement, family
separation at a time of great stress and unfair treatment without recourse,
and the possibility of redress at the appellate court level, I did give
in to my commands manipulation of the system, and agreed not to raise
the motions.



Trial counsel submitted an affidavit in
response to appellants letter. He stated:



2. I was not involved in the Initial
Review Officer (IRO) hearing, per RCM 305. I am aware that there were two
hearings, the first of which resulted in a decision by the IRO to release
the accused from pretrial confinement, and the second of which resulted
in the same IRO deciding to retain the accused in pretrial confinement.
3. I recall that the defense felt that
there was command influence involved in the IRO hearing process. They also
felt that the accused was being held in maximum confinement status unnecessarily.
The defense indicated that they might bring motions to this effect.
4. I do not recall there being an
unwritten, or sub rosa, agreement that prevented the defense from bringing
these motions. As the trial counsel, I discussed with the defense counsel
whether the defense would raise these motions, and reported that the Government
needed to know this in order to know how to proceed. That did not, however,
mean that there would be no pretrial agreement if the defense raised these
issues.
5. I note that a pretrial agreement,
in which the Government agreed to take the case to a special court-martial
vice a general court-martial in return for the accuseds pleas of guilty,
is dated 11 October 95. As of that date, the Government was obliged to
fulfill its portion of the pretrial agreement, barring misconduct by the
accused. The defense was free to raise the issues it was concerned with
without fear of losing the benefits of the agreement. The defense did not
raise any such issues.



(Emphasis added.)
Defense counsel submitted an affidavit
in response to trial counsel. It said:



I have read Anthony Shermans letter
of 7 April 1997. I generally agree with the content of the letter with
the exception of the fifth sentence of the first paragraph, and any portions
of the fourth sentence of the same paragraph to the extent it/they imply
that defense counsel promised that certain issues would not be considered
to have been "waived" on appeal. Additionally, with regard to the fifth
paragraph, I agree with the general assertion of illegal command influence
inasmuch as it alleges illegal command influence with regard to Sergeant
Plum.
I have read Captain Harpers affidavit
of 21 July 1997 and provide the following statement in response:
Specifically regarding paragraph
4: Captain Harper implied that he might not recommend a pretrial agreement
if the motions were raised and also that LtCol DeCamp might not enter a
pretrial agreement if motions were raised.
Specifically regarding paragraph 5:
During the negotiation of the pretrial agreement Captain Harper informed
me that a proposed pretrial agreement was contingent upon going to trial
on a specified day. When informed of the possibility of the filing of defense
motions, Captain Harper stated that filing motions would result in delay
of the trial and would be cause for the convening authority to reevaluate
the offer and to consider filing additional assault charges. Additionally,
his assertion that the pretrial agreement was binding as of the date it
was signed is incorrect. The Government may withdraw from a pretrial agreement
for any reason up until the time of performance by the accused.
At the time of the negotiations Captain
Harper was aware of the general nature of the motions  illegal command
influence and illegal pretrial confinement and that the convening authoritys,
LtCol DeCamp, action formed the basis for both motions.



(Emphasis added.)
The Court of Criminal Appeals considered
this material and affirmed on the basis of appellants purported forfeiture
of these claims by failing to make appropriate motions. It later reconsidered
and again affirmed, stating:



2. After reviewing the record of
trial and the affidavits submitted by the appellant and his counsel, we
remain confident that a post-trial evidentiary hearing is not required
or appropriate in this case. See United States v. Ginn, 47
MJ 236 (1997). The appellant speculates that there was an "implied" understanding
not to raise any motions. However, he, his trial defense counsel, and
the trial counsel expressly stated on the record that there were no such
sub rosa agreements. Record at 56. Moreover, nothing in the pretrial
agreement prevented him from making any motion at trial. His failure to
do so at the time of trial forfeited the issue on appeal. RULE FOR COURTS-MARTIAL
905(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES (1995 ed.). After refocusing
on the facts and the law relevant to the appellants first assignment of
error, we conclude again that he is entitled to no relief.



(Emphasis added.)
___ ___ ___
As a starting point, we note that the
affidavit submitted by trial counsel in this case raises a factual dispute
as to the existence of a sub rosa agreement preventing the defense
from raising pretrial motions alleging unlawful command influence and unlawful
pretrial confinement. ("I do not recall.") See United States
v. Moore, 28 MJ 366, 368 n.6 (CMA 1989) (affidavit response of trial
counsel not sufficiently complete). Moreover, defense counsels affidavit
provides an incomplete explanation as to whether appellant gave untruthful
answers to the trial judge and, if so, whether defense counsel knew that
these answers were untruthful. See United States v. Boone,
42 MJ 308, 313-14 (1995) (defense counsels inadequate response to claim
of ineffective assistance of counsel requires call for explanation). Finally,
other matters suggesting unlawful command influence at this court-martial
were raised by appellants letter, which were not addressed by trial counsel.
See United States v. Henry, 42 MJ 231, 237-38 (1995). ("[R]ecord
suggests numerous potential lines of inquiry that cannot be answered with
the information before us.").
In this context, we conclude that there
are too many questions remaining that are unresolved in the record of this
case for us to affirm it at this time. See United States v. Payton,
supra (inconsistencies and omissions in the record of trial and
post-trial attachments preclude affirmance). Therefore, we remand for a
DuBay hearing on the following issues:



(1) Did LtCol DeCamp threaten the
Initial Review Officer (a subordinate) that, unless he decided to keep
appellant in confinement, DeCamp would get word up to the Commandant of
the Marine Corps?
(2) Did LtCol DeCamp threaten appellants
wife with loss of base housing unless she cooperated with the prosecution
of her husband?
(3) Were witnesses interfered with?
(4) At R. 56  was appellant telling
the truth when he told the judge there were no agreements other than the
written pretrial agreement?
(5) Did defense counsel knowingly remain
silent and allow appellant to give an untruthful answer when appellant
said no other agreements induced him to plead guilty?
(6) Were there any sub rosa
agreements made with the defense that were outside the wording of the plea
agreement?



See United States v. Henry,
supra.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Navy for submission to an appropriate
special court-martial authority. That authority may refer the record to
a special court-martial for a limited hearing on the matters noted above
or, if he determines in his discretion that further proceedings are impracticable,
dismiss the charges and forward an authenticated copy of his dismissal
action to this Court. If a special court-martial is convened, the military
judge, under the provisions of Article 39(a), UCMJ, 10 USC § 839(a),
will conduct the limited hearing. At the conclusion of the proceedings,
he will enter findings of fact and conclusions of law and then return the
record and a verbatim transcript of the hearing directly to this Court.
FOOTNOTE:
1 United States
v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).
 
 
CRAWFORD, Judge (dissenting):
I dissent because we have previously
noted that, when a "military judge properly inquired and received assurances
from appellant that no sub rosa agreements existed, we will
not consider inconsistent post-trial assertions." United States v. Muller,
21 MJ 205, 207 (CMA 1986). Likewise, in United States v. Miles,
12 MJ 377, 379 (CMA 1982), the Court indicated that it will not consider
post-trial affidavits submitted long afterward which indicate that an appellant
did not understand the pretrial agreement he signed. Additionally, before
this case was tried, we held in United States v. Weasler, 43 MJ
15 (1995), that unlawful command influence issues may be waived.
Appellant admitted that the pretrial
agreement originated with him; that the plea was voluntary; and that the
agreement included a waiver of any issue arising from the 3-day delay between
service and referral. The judge then asked if there were any other agreements
in the case. Appellant replied that there were not, as did both counsel.
Appellant reiterated that the plea was voluntary and no one forced or threatened
him to enter into the agreement. He stated that he had fully discussed
the agreement with counsel and was satisfied that the agreement was in
his own best interest.
Now, the defense asserts that there
was a sub rosa pretrial agreement in this case. Appellants
defense counsel, Major Eric B. Stone, states that the trial counsel implied
that there might not be a pretrial agreement if appellant decided to raise
motions. Appellant himself states that his defense counsel told him they
would "have to hide" the motions concerning improper confinement and unlawful
command influence "from the Judge" in order to have a pretrial agreement.
This is not a case where there is a
colorable claim of command influence that appears on the record, as in
United States v. Bartley, 47 MJ 182 (1997). The fact that a trial
counsel is aware of potential motions does not equate to the existence
of a sub rosa agreement; nor would such a discussion between
counsel indicate that a pretrial agreement would be withdrawn if those
motions were raised. Candor with the tribunal requires that both parties
be open and honest at the time of trial and not litigate these issues through
post-trial affidavits. See generally 32 C.F.R. § 776.41
(1998)(Department of Navy Rule for Professional Conduct of Attorneys Practicing
Under the Supervision of the Judge Advocate General).
For these reasons, I would affirm the
decision of the Court of Criminal Appeals.

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