Presentencing Procedure in Courts-Martial

• Author: Major William J. Chilcoat
• Pages: 04

1. INTRODUCTION

   "[PI . , , shall be punished as a court-martial may direct."' Despite the apparent Carte blanche given a court-martial by Congras, actually a convicted soldier stands before such a court cloaked with many protections, privileges, and immunities. Of direct importance to him is the presentencing portion of the caurt-martial. For the accused it is his opportunity to have a sentence set by a court via a vis which may never be increased. For the Government it is an adversary proceeding in which it must insure an adequate sentence well knowing that if not done, such failure can never be corrected.

   Under earlier codes, the convening authority was permitted toreturn the case to the court-martial for reassessment of the sentence. In Swa.im Y. United States.2 the case was twice returned to the court which had been convened by the President of the United States for reassessment of the sentence accompanied by instructions of the Attorney General to increase the punishment.

   Winthr0p.s in his Military Law and Precedents, states that the court may not "trench" upon the mitigating authority of the commander and that it does SO when, because of the previous good record of the accused, or other extenuating circumstances foreign to the merits, it is induced to adjudge a mild sentence quite out of proportion to the gravity of the offense. The present code strictly forbids the return of the record for increasing the severity of the sentence.' The Manual provides that the court-martial will

   *This article was adapted from a thesis presented to The Judge Advocate General's School, U.S. Amy, Chsriotte$dile, Virginia, while the author was B member of the Seventh Advanced Class. The opinions and eenelusiona presented herein are those of the author and do not neeeassriiy represent the dews of The Judge Advoeate Gmersi'B School nor any other governmental

   offense.

   1165 US. 553 (1897); accard, E* pmts Reed, 100 US. 1s (1879).8U'inthrop Militam Law and Precedents 402 (2d ed. 1920 mpiint).4 Art. ez(bi (31, UCMJ. But cf. U.S. Y. Robinaan, k USCMA 12, 15 CMR12 (1964). The eevrt may "re-announce" B BDntenee if an error WBS made in the announeement end meh re-announcement is the sentence ~ ~ t u s l l y adjudaedbytheeourt.

   *co 10MBB 127

   consider matter in mitigation and extenuation and will not adjudge a sentence they believe excessive in reliance upon the mitigating action of rhe convening or higher If it appears that they hare done so, a rehearing on the sentence is neces~ary.~

   11. ISFORIIATION TO BE PRESESTED BY THE PROSECUTION

   After conviction and findings are announced, the Government is permitted to present certain data from the first page of the charge sheet. This includes the accused's age, pay, service, and the duration and nature of any restraint imposed prior to trial. a minimal amount of information, much can o aid sentencing. The accused's age standing ifiei little according to jurists;' but coupled with his past criminal record it means much. The first offender at any age is deemed a better risk for rehabilitation than one with a. previous pattern of ciiminal actiritb-. The older first offender is more likely to return to his law-abiding ways than a youthful offender whaae previous convictions indicate that past efforts at punishment have been to no avail and more stringent action is called for. The pay data concerning an accused reveals to the military court member whether others are dependent upon him, which, depending on the offenses of which he has been found guilty, may aggravate or mitigate them His prior service and sometimes the dates and units in which he served wiil, to the experienced court member, reveal combat service. The fact as to ahether he has or has not been placed in confinement awaiting trial will indicate the degree of trust which his unit commander places in him. A. Pa9,ioiLs convictions

   After this personal data has been presented to the court, the trial counsel will then present evidence of previous convictions by courts-martial.8 Previous condctians which are admissible are not limited to offenses similar to the one or ones of which the accused stands convicted. They must relate ta offenses committed during a "current enlistment, voluntary extension of enlistment,

   - ar 76, JICY, 1951. .S. V. Xaslor, 10 USClIA 139, 27 CMR 213 (1969).

   lonil Piobation and Parole Asaaeiatian, Guides for Sentencing 37 ar. 75k. I C l l . 1951. The defense C O Y D S ~ should aieertaiii ~ i i m to the

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   profar of p~eviaua convictions by trial counsel whether he has snb objections thereto in order ta request B ridebar hearin= ta prevent panrible prejvdiee to hi% nceiied arming fiom the annoincement of the proffer in open court.

   PRESENTENCING PROCEDURE IN COURTS.MARTIAL

   appointment, or other engagement or obligation for service of the accused, and during the three years next preceding the commission of any offense of which the accused stands convicted."Q Proof of two or more previous convictions permits an increase af the maximum punishment, if not otherwise authorized, to include a bad conduct discharge and confinement and forfeiture of all pay and allowances not to exceed three months" or any part thereof."

   By executive order, in September 1954, the maximum permissible punishment was increased to include dishonorable discharge, forfeiture of all pay and allowances and conflnement for one year upon the proof of three or more previous convictions during the year next preceding the commission of an offense of which the accused was convicted.12 As it appears that the purpoae af introducing previous convictiona is to form the baaia for increasing the authorized punishment, it could be asked what is their relevancy if only one is introduced or if the puniahment already authorized exceeds that authorized by virtue of them? The first ansver would be that the Manual specifically requires the prosecution to introduce "evidence of any previous convictions of the accused by courts- Secondly, in matters concerning sentence prior misconduct is recognized as relevant in determining its severity. Nolonger is there a fear of a wrongful conviction based on an inference from prior acts of misconduct that the accused did the aet charged." Further, the accused is protected in the court-martial sentencing procedure from having to defend against all the misdeeds of his life by limiting convictions which can be considered to those which have been finally and jadicialiy deter-rnined.ls Any objection to remoteness is coLntered by the three-year limitation.

   In United States v. Ca,tsr,16 it was early decided that "proof" of the previous convictions required legal and competent evidence. The Court of Military Appeals reversed eight cases17 where the

   trial counsel read from a doeument reciting the convictions in accordance with the trial guide procedure of the ManuaI.lB Even in B case where there was "no objection" by the defense counsel to the hearsay evidence of previous convictions and where the sentence imposed could have been adjudged in the absence of such convictions, the Court refused to apply a. doctrine of waiver or harmless error.lP But where the trial counsel read from the service record of the accused which had been marked and identified a% "Prosecution Exhibit I," although neither offered nor received in evidence but nas attached to the record, the Court relaxed the standard of proof required in the Carter case and concluded that even though the document was not in fact admitted in evidence

   'I. ,

   . its contents reached the court through the considered and thoughtful action af defense counsel in waiving technical and definitive proffer on the part of the Another minimal standard for "proof" of previous convictions was set by the Court of Military Appeals in United States Y. LOWW,~~ where

   the trial counsel who had earlier been .worn as a witness and was the custodian of the accused's records recited the previous convictions from B "memorandum"; such was held to be competent evidence in the absence of objection. This procedure did not receive the bleasing of the Court and it recommended that prior convictions be established by introduction in evidence of competent documentary proof.zp

   Before a previous conviction is admissible, it must be final in the sense of Article 44(b), Uniform Code of Xilitaty Justice, which provides :

   Ro proceeding m which an aeeuied has been found gmlty by a court-martial upon any charge or apetifleation shall be held to be a trial in the ienso of this article until the Rnding of guilt? has become final aftm ieview of the cane has been fully completed.

   In cases where the accused may petition the Court of Military.4ppeals, a conviction is not final until the time for such petition has expired.23 The Court of Military Appeals early adopted the civilian rule that a p r i m facie showing of finality was made by proof af the order promulgating the result of trial and ordering the sentence executed.Q' When the time interval between the

   PRESENTENCING PROCEDURE I N COURTSMARTIAL

   order promulgating the prior conviction and the subsequent trial "shows the improbability of a final conviction" this, in and of iteelf, overcomes the prina facie showing of fina1ity.l' Also it is equally true when the order promulgating the results of trial fails to order the sentence exeeuted.e6 The Wma facie showing is also rebutted by the exhibit itself if it has a blank space requiring an entry when final review is complete and such entry has not been made.87

   Paragraph 756 (8) of the Manual for Courts-Martial provides:

   The evidenoe [of previous eonvietions] must, . . relate to offenses c m mitted . . , during the three years next meceding the commission of any offense of which the aecmed stands convicted. (Emphasis supplied.) This provision pertains to the initial admissibility of previous convictions.

   When interpreted in connection with paragraph 12lc of the Manual permitting additional punishment, the necessary timing...