                        UNITED STATES, Appellee

                                    v.

               Collin J. CARTER, Private First Class
                        U.S. Army, Appellant

                              No. 14-0792

                       Crim. App. No. 20121046

       United States Court of Appeals for the Armed Forces

                       Argued February 11, 2015

                        Decided June 10, 2015

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, RYAN, and OHLSON, JJ., joined. STUCKY, J., filed a
separate opinion concurring in the result.

                                 Counsel

For Appellant: Captain Patrick A. Crocker (argued); Colonel
Kevin Boyle (on brief); Lieutenant Colonel Jonathan F. Potter.

For Appellee: Captain Jihan Walker (argued); Colonel John P.
Carrell and Major John K. Choike (on brief); Lieutenant Colonel
James L. Varley and Major A. G. Courie III.


Military Judge:   Wendy P. Daknis


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Carter, No. 14-0792/AR


     Chief Judge BAKER delivered the opinion of the Court.

     A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of one

specification of an indecent act in violation of Article 120,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012).

The panel sentenced Appellant to six months of confinement,

reduction to E-1, forfeiture of all pay and allowances, and a

bad-conduct discharge.   Appellant was awarded twenty-seven days

of confinement credit:   two of those days were for pretrial

confinement and twenty-five days for Article 13, UCMJ, 10 U.S.C.

§ 813 (2012), violations.   The convening authority approved the

sentence, which included the twenty-seven days of credit, and

the United States Army Court of Criminal Appeals affirmed.

     This Court granted review of the following issue:

     WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY
     PREVENTING DEFENSE COUNSEL FROM PRESENTING FACTS OF
     APPELLANT’S UNLAWFUL PRETRIAL PUNISHMENT AS MITIGATION
     EVIDENCE AT SENTENCING.

For the reasons set forth below, we hold that the military judge

did not abuse her discretion when, based upon her reasoned

interpretation of case law, she determined that Appellant could

not present the Article 13, UCMJ, violations to the panel

members as mitigation evidence after already being awarded

confinement credit by the military judge based upon that same

evidence.   We also conclude, however, that the law does not


                                 2
United States v. Carter, No. 14-0792/AR


create a per se rule against the accused being allowed to

present evidence of an Article 13, UCMJ, violation to the

military judge and also to the panel, so long as that evidence

is otherwise admissible pursuant to the relevant rules of

evidence and procedure.

     Presenting Article 13, UCMJ, evidence in these two

different contexts serves two distinct purposes.   A military

judge considers evidence of Article 13, UCMJ, violations to

determine, as a matter of law, whether the accused is entitled

to credit for the government’s conduct.   However, when a panel

considers that same evidence properly admitted as mitigation on

sentencing, it is doing so for the purpose of determining an

appropriate sentence for an appellant’s conduct.   As with other

evidence offered in sentence mitigation, this evidence is

subject to Military Rule of Evidence (M.R.E.) 403 balancing,

rebuttal, and instruction.

                             Background

     In April 2012 at or near Camp Casey, Republic of Korea,

Appellant was reported to have engaged in sexual conduct with CG

while she was substantially incapacitated and while other

soldiers were present.    When Appellant was called into

questioning, he was, according to defense counsel, “subjected to

significant unlawful pretrial punishment.”



                                  3
United States v. Carter, No. 14-0792/AR


     At trial, defense counsel moved for confinement credit on

the basis that Appellant was subjected to restrictions which

amounted to unlawful pretrial punishment, in violation of

Article 13, UCMJ.   Defense counsel initially asked for forty-

five days of confinement credit.       Before the military judge

ruled on the motion, however, trial and defense counsel agreed

upon twenty-five days of credit for the unlawful pretrial

punishment.   When asked by the military judge whether he agreed

with the number of days of credit awarded, Appellant said yes.

     Following the confinement credit agreement, defense counsel

attempted to introduce a witness at presentencing to testify

about the pretrial violations.   Trial counsel objected on the

basis of relevancy.   In response defense counsel argued the

testimony was relevant in mitigation to the possible sentence.

The military judge at this point sustained the objection finding

that the issue had already been addressed with the confinement

credit.

     Later in the proceedings, however, the military judge gave

defense counsel an opportunity to further elaborate on the

relevance of the testimony.   Defense counsel explained that the

Article 13, UCMJ, violations could serve as mitigating evidence

as the members contemplated the appropriate sentence.      After

reconsideration, the military judge again sustained the

Government’s objection.   She specifically based her decision on

                                   4
United States v. Carter, No. 14-0792/AR


existing case law discussing Article 15, UCMJ, 10 U.S.C. § 815

(2012), nonjudicial punishment which, according to the military

judge, is analogous to Article 13, UCMJ, and should be

interpreted to mean that defense counsel “has an option as to

how to present that evidence; one of four ways.”   See United

States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999).     Those four

options include:   (1) introducing the evidence for consideration

by the court-martial during sentencing; (2) introducing the

evidence during an Article 39(a), UCMJ, 10 U.S.C. § 839(a)

(2012), session and having that evidence adjudicated by the

military judge for the purpose of receiving credit; (3)

presenting evidence to the convening authority before action is

taken on the sentence; or (4) choosing not to raise the issue

for any sentencing purpose.   Gammons, 51 M.J. at 183.    She

additionally explained that since defense counsel already chose

to present that evidence to the military judge in the context of

seeking pretrial confinement credit, giving defense counsel a

second opportunity to present the evidence, this time for

sentence mitigation, would effectively be giving Appellant a

“second bite at the apple.”

                        Standard of Review

     A military judge’s decision to admit or exclude evidence at

sentencing is reviewed for an abuse of discretion.   United

States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009).     The

                                 5
United States v. Carter, No. 14-0792/AR


admission of sentencing evidence is subject to the M.R.E. 403

balancing test and the substantive law and procedures set forth

in Rule for Courts-Martial (R.C.M.) 1001.   United States v.

Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citing United States v.

Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)).    A military judge is

given “‘wide discretion’” and more deference if she properly

conducts the balancing test and articulates her reasoning on the

record.    Id. (quoting Rust, 41 M.J. at 478).

                             Discussion

   1.     Legal Background

     The military judge in this case relied primarily on this

Court’s decisions in Gammons, 51 M.J. 169, and United States v.

Southwick, 53 M.J. 412 (C.A.A.F. 2000), overruled on other

grounds by United States v. Inong, 58 M.J. 460, 464 (C.A.A.F.

2010), to find that defense counsel must choose between

presenting evidence of Article 13, UCMJ, violations to the

military judge in seeking confinement credit, or presenting the

same evidence to the panel for the purpose of sentence

mitigation.

     In Gammons, a case pertaining to evidence of Article 15,

UCMJ, nonjudicial punishment (NJP), this Court suggested that,

“the accused, as gatekeeper, may choose whether to introduce the

record of a prior NJP . . . and may also choose the forum for

making such a presentation.”   51 M.J. at 183.   The opinion went

                                  6
United States v. Carter, No. 14-0792/AR


on to list the four alternatives available to defense counsel

for presenting the evidence, and it is from this discussion that

our subsequent Southwick decision, which dealt with Article 13,

UCMJ, violations, derives.   See Southwick, 53 M.J. at 416.

     Specifically, in Southwick this Court stated that a

decision concerning how to present evidence was a “trial tactic

. . . because [it] involved an election between two available

alternatives.”   Id. (citing Gammons, 51 M.J. at 182-84).    In

characterizing the election between the members or military

judge as a trial tactic, however, the only specific support

Southwick cites is the dicta in Gammons.1   Id.   Moreover, the

ultimate question before the Court in Southwick was a waiver

issue, not a question as to whether defense counsel was

precluded from presenting evidence of Article 13, UCMJ,

violations both for credit and in mitigation.     As a result,

these cases did not create a clear and binding precedent

concerning the question before us now of whether, when there is

evidence of an Article 13, UCMJ, violation, that evidence can be

presented to the military judge for confinement credit and then

subsequently, to the panel in connection with the issue of

sentence mitigation.

1
  The Southwick opinion also cites United States v. Edwards, 42
M.J. 381 (C.A.A.F. 1995) for support, though the context in that
case was slightly different as it concerned a bench trial and
thus the election between the military judge and the convening
authority, not members, in seeking relief.
                                 7
United States v. Carter, No. 14-0792/AR


     The fact that this question remains unresolved despite the

Gammons and Southwick cases was further highlighted in United

States v. Barnett, 71 M.J. 248, 253-54 (C.A.A.F. 2012) (Erdmann,

J., concurring specially).     Although not the issue on appeal,

the underlying facts of that case showed that defense counsel

did present Article 13, UCMJ, evidence twice:    first to a

military judge and then to a panel.    Id. at 250.   Trial counsel

did not oppose the presentation to members and the military

judge also allowed it.   Id.    And notably, when this Court heard

oral argument in the present case, Government counsel conceded

that Article 13, UCMJ, evidence can be presented to both the

military judge and the sentencing authority.    These facts

underscore the inconsistency and confusion that exists in court-

martial practice as it relates to Article 13, UCMJ, evidence

presentation.   Judge Erdmann’s special concurring opinion in

Barnett noted that the question as to whether or not defense

counsel can present Article 13, UCMJ, evidence to both the

military judge and the panel remains unanswered.     Id. at 253-54

(Erdmann, J., concurring specially).

     It is to this continuing uncertainty we turn.

   2.   Presenting Article 13, UCMJ, Evidence

     We start with three propositions.

     First, the question of whether an accused was unlawfully

punished under Article 13, UCMJ, is one that includes a finding

                                   8
United States v. Carter, No. 14-0792/AR


of law, and thus is a question that must be answered by the

military judge.    United States v. Spaustat, 57 M.J. 256, 260

(C.A.A.F. 2002) (“The proper applications of credit for illegal

pretrial punishment . . . are questions of law, reviewed de

novo.”).     The Military Judges’ Benchbook specifically instructs

the military judge in an Article 39(a), UCMJ, session without

members present, to ask defense counsel whether the accused was

subject to any Article 13, UCMJ, pretrial punishment.      Dep’t of

Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch.

2, § V, para. 2-5-15 (2014).    If the military judge is convinced

by the evidence presented that it is “more likely than not [the

accused] suffered from illegal pretrial punishment, then [the

accused] would be entitled to (additional) credit against any

sentence.”    Id. at § VII, para. 2-7-11.

     Second, Article 13, UCMJ, credit is distinct from NJP

credit and should not be treated in the same way.     “Article 13,

UCMJ, credit is provided for conduct in which the government has

already engaged.    In other words, it is relief for the

government’s conduct, not a sentencing factor related to the

accused’s offense.”     Barnett, 71 M.J. at 255 (Baker, C.J.,

concurring in part and in the result).      It is the military judge

who awards Article 13, UCMJ, credit as a matter of law whereas

it is the trier of fact who assesses mitigation evidence as a

matter of sentence assessment and discretion.     Where an accused

                                   9
United States v. Carter, No. 14-0792/AR


has already received credit for NJP, he would indeed get “double

credit” for the same restriction were members to award him

credit as well.   Should members take Article 13, UCMJ, evidence

into account when assessing a sentence, however, the accused is

not receiving credit twice for the same conduct.   This is,

indeed, a case of apples and oranges.   See Barnett, 71 M.J. at

255 (Baker, C.J., concurring in part and in the result).    Thus,

an accused should not have to choose between presenting a

question of law to the military judge or to members.   As a

question of law, the military judge should determine whether the

government has violated Article 13, UCMJ, and whether credit

is due.

     Third, as a distinct matter, after a guilty finding,

defense counsel may present “[m]atter[s] in mitigation” which is

evidence introduced “to lessen the punishment to be adjudged by

the court-martial, or to furnish grounds for a recommendation of

clemency.”   R.C.M. 1001(c)(1)(B).   However, the opportunity to

do so remains subject to the rules of evidence and procedure.

Although the rules of evidence can be relaxed by a military

judge during sentencing, R.C.M. 1001(c)(3), mitigation evidence

also remains subject to M.R.E. 402 and M.R.E. 403.

Additionally, if defense counsel chooses to present the Article

13, UCMJ, violations to the panel for purposes of sentence



                                10
United States v. Carter, No. 14-0792/AR


mitigation, trial counsel may rebut the evidence, subject to the

same rules of evidence.

     As is the case with Article 15, UCMJ, credit for NJP, the

military judge should, as necessary, give tailored instructions

to the panel members to distinguish between Article 13, UCMJ,

credit addressed to the government’s conduct, and the use of

such evidence in mitigation.   The evidence of Article 13, UCMJ,

violations coupled with the number of days of confinement credit

already awarded can thereby be weighed as part of the totality

of the evidence the panel members consider when determining the

appropriate sentence for the accused.   See Barnett, 71 M.J. at

254 (Baker, C.J., concurring in part and in the result) (“These

questions required a tailored response rather than a repeat of

the standard instruction.”).

     Prior case law indicates that when and whether to raise

Article 13, UCMJ, is a matter of trial tactics.   It remains so.

In choosing to present the Article 13, UCMJ, evidence to the

panel, including the number of days already credited the

accused, defense counsel may even risk that the panel members

consider that factor in favor of a harsher sentence than would

have been assessed without knowledge of the credit.   It is for

that same reason, however, that allowing a military judge to

first determine whether Article 13, UCMJ, violations occurred as

a matter of law and awarding confinement credit where relevant,

                                11
United States v. Carter, No. 14-0792/AR


and subsequently allowing a panel to consider the totality of

the evidence -- including that there was an Article 13, UCMJ,

violation -- does not provide defense counsel two bites at the

apple.   Rather, the evidence is at play in two different stages

of the trial, and presented for different purposes.

   3.    The Military Judge Did Not Abuse Her Discretion

     Nonetheless, we conclude in this case that the military

judge did not abuse her discretion in ruling against Appellant.

At the time, she was presented with what was expressly

acknowledged by Judge Erdmann’s special concurrence in Barnett,

71 M.J. at 253-54, as an unsettled question of law and, relying

on the relevant cases including Gammons and Southwick, provided

on the record sound reasoning to support her ruling.   Notably,

the military judge made a point of researching the relevant law,

and stated, for the record, the logical steps she took to reach

her conclusion.   She grappled first with the link between

Article 13, UCMJ, and Article 15, UCMJ, cases by relying on

Southwick, concluding that the articles “can be treated

similarly in terms of how the evidence is presented to the panel

members.”   By linking Article 13, UCMJ, and Article 15, UCMJ,

she then could rely on the Gammon language, as Southwick did, to

support her conclusion that raising a motion for confinement

credit, and then also introducing the Article 13, UCMJ, evidence

to panel members, was giving defense counsel “two bites at the

                                12
United States v. Carter, No. 14-0792/AR


apple.”2   As she weighed the law and evidence before her,

articulated for the record why she reached her conclusion, and

her findings were not clearly erroneous, the military judge did

not abuse her discretion.

                            Conclusion

     The military judge in this case did not abuse her

discretion in ruling that defense counsel could not present

evidence of Article 13, UCMJ, violations for sentence mitigation

after first presenting it to the military judge and receiving

confinement credit.   We also clarify the law and conclude,

however, that there is no per se rule against defense counsel

presenting evidence of Article 13, UCMJ, violations to both the

military judge, for a finding of law, and to the panel, for the

purpose of sentencing.   Therefore, the decision of the United

States Army Court of Criminal Appeals is affirmed.




2
  She also acknowledged that in Barnett, 71 M.J. 248, defense
counsel did present the evidence twice, but subsequently
determined that Barnett was not applicable because, unlike in
the present case, trial counsel had failed to object to defense
counsel’s presentation of evidence.
                                13
United States v. Carter, No. 14-0792/AR


     STUCKY, Judge (concurring in the result):

     In essence, the majority concludes that an appellant may

seek credit for illegal pretrial punishment from the military

judge and still present evidence of such illegal pretrial

punishment to the court members as mitigation.   Under this

Court’s current jurisprudence and interpretation of Rule for

Court-Martial 1001(c)(2), I agree.   I disagree with the Court’s

holding that the military judge did not abuse her discretion in

excluding the evidence.   Nevertheless, I concur in the result

because Appellant was not prejudiced.

     A military judge abuses her discretion if her findings of

fact are clearly erroneous or her conclusions of law are

incorrect.    United States v. Olson, 74 M.J. 132, __ (5)

(C.A.A.F. 2015).   The Court correctly holds that the military

judge’s conclusion of law -- that Appellant was not entitled to

both request credit from the military judge for illegal pretrial

punishment and present evidence of such to the court members --

was incorrect.   Therefore, the military judge abused her

discretion.

     It matters not that the law was “unsettled” at the time of

her decision.    “[A] new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases . . .

pending on direct review or not yet final, with no exception for

cases in which the new rule constitutes a ‘clear break’ with the
United States v. Carter, No. 14-0792/AR


past.”   Griffith v. Kentucky, 479 U.S. 314, 328 (1987); see also

Henderson v. United States, 133 S. Ct. 1121, 1124–25 (2013)

(holding that even when an appellate court reviews for plain

error because the appellant failed to timely assert his claim at

trial, whether the law was settled or unsettled at the time of

trial, the error is plain as long as it was plain at the time of

appellate review).   Appellant raised the issue at trial and is

entitled to the benefit of this Court’s ruling that the excluded

evidence was admissible.

     Nevertheless, I conclude Appellant was not prejudiced by

the military judge’s error.    See Article 59(a), Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 859(a) (2012).   Appellant

was convicted of committing an indecent act, which carried a

maximum sentence of a dishonorable discharge and confinement for

five years.   Manual for Courts-Martial, United States pt. IV,

¶ 45.f.(6) (2008 ed.).   Had the military judge permitted

Appellant to present the excluded evidence, she no doubt would

have instructed the members that the parties had agreed, and she

had ordered, that Appellant was entitled to a credit of twenty-

five days against any sentence to confinement because of the

illegal pretrial punishment.   A defense witness testified that

he was aware that Appellant had wrongfully used a Schedule II

controlled substance and had urinated on his commander’s

vehicle.   Court members sentenced Appellant to a bad-conduct


                                  2
United States v. Carter, No. 14-0792/AR


discharge, confinement for six months, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade.   In

light of all of the facts and circumstances, the error in

excluding the evidence did not have a substantial influence on

the sentence adjudged by the court-martial.    See United States

v. Custis, 65 M.J. 366, 371 (C.A.A.F. 2007).




                                3
