United States v. Johnson , 42 M.J. 443 ( 1995 )

Opinion of the Court

SULLIVAN, Chief Judge:

1. On July 27, 1992, appellant was tried by a general court-martial composed of a military judge sitting alone at Davis-Mon-than Air Force Base, Arizona. In accordance with a pretrial agreement he pleaded guilty to wrongfully using cocaine and failing to obey a lawful order, in violation of Articles 112a and 92, Uniform Code of Military Justice, 10 USC §§ 912a and 892, respectfully. Appellant was sentenced to a bad-conduct discharge, confinement and forfeiture of $200 pay per month for 6 months, and reduction to E-l. The convening authority approved the sentence on August 31, 1992.

2. The Court of Military Review¹ affirmed this case without opinion on June 17, 1993. Appellant, represented by new appellate counsel, appealed that decision to this Court raising an issue not asserted below. On June 23, 1994, this Court remanded appellant’s case to the Court of Military Review for consideration of that issue. 40 MJ 304. On August 23, 1994, the Court of Military Review issued an unpublished Opinion of the Court Upon Further Review and again affirmed the findings of guilty and the sentence in this case.

3. This Court, on October 24,1994, granted review in this case on the issue upon which our earlier remand to the Court of Military Review was predicated. It asks:

WHETHER APPELLANT’S PLEAS OF GUILTY TO CHARGE I AND ITS SPECIFICATION WERE IMPROVIDENT SINCE PROSECUTION EXHIBIT 5 CLEARLY INDICATES THAT APPELLANT WAS NEVER ISSUED A LAWFUL ORDER.

We hold that the entire record of trial established that appellant was issued a lawful order by Staff Sergeant (SSgt) Homan not to drink alcohol and, thus, he providently pleaded to violating that lawful order. See generally United States v. Harrison, 26 MJ 474, 476 (CMA 1988).

4. Appellant was charged with the offense of disobedience of a lawful order, in violation of Article 92. The particular specification stated:

SPECIFICATION: In that [appellant], having knowledge of a lawful order issued by SSgt Joseph R. Homan, to refrain from drinking alcoholic beverages while a minimum custody prisoner in the Davis-Mon-than Air Force Base Detention Facility, an order which it was his duty to obey, did, at Davis-Monthan Air Force Base, Arizona, on or about 11 April 1992, fail to obey the same.

5. Appellant agreed to plead guilty to the above offense and entered into a stipulation of fact concerning it. That stipulation states:

On or about 5, 6 and 7 March 1992, the accused was tried by a general court-martial for the wrongful use of cocaine. He was found guilty and his sentence consisted of reduction in grade to E-2 and confinement for 10 months (Exhibit 4) [Court-Martial Order omitted]. The accused began serving his sentence on or about 7 March 1992 and is currently confined at the Davis-Monthan AFB confinement facility. On or about 6 April 1992, the accused was offered the opportunity to be a minimum custody/installation parolee and signed a document entitled “Rules for Minimum Custody/installation Parolee” (Exhibit 5) [omitted]. As a minimum custody/installation parolee and pursuant to a lawful order from SSgt Joseph R. Homan, the accused was to refrain from drinking alcoholic beverages.

On or about 11 April 1992, the accused, despite having knowledge of the lawful order issued by SSgt Homan to refrain from drinking alcoholic beverages, an order which it was his duty to obey, did fail to obey said order by consuming alcoholic beverages while in confinement.

(Emphasis added.)

6. Prosecution Exhibit 5 is entitled “RULES FOR MINIMUM CUSTODY/INSTALLATION PAROLEE.” Paragraph 1 states: “These rules are directive in nature and pertain to your actions and conduct outside the Detention Facility, while in status as either minimum custody prisoner or installation parolee.” Furthermore, paragraph lb, entitled UNAUTHORIZED ACTS, fists as prohibited conduct in subparagraph (1): “Drinking alcoholic beverages.” Finally, paragraph 2 of this regulation states:

Violations of any of the above rules may result in:

a. Reprimand or warning

b. Deprivation of one or more privileges

c. Loss of minimum custody status

d. Extra duties, not to exceed 2 hours a day for 14 days

e. Loss of good conduct time. (Adjudged & sentenced Prisoners Only)

3. Your signature below certifies that you have read, understand and will comply with the above rules and that a copy will be carried on your person at all times.

7. Appellate defense counsel argues that certain guilty-plea responses by appellant raised a substantial question of fact whether Sergeant Homan ever gave him a verbal order not to consume alcohol. He contends that the guilty-plea “inquiry makes it clear that the order the appellant believed he had received on 6 April 92 not to drink was a written, rather than a verbal order.” Final Brief at 4. He finally contends that the installation prison rules that appellant received from Sergeant Homan were administrative in nature and not a proper subject for prosecution under Article 92. Final Brief at 5, citing United States v. Felix, 36 MJ 903, 910 (AFCMR 1993) (en banc), aff'd, 40 MJ 356 (CMA 1994).

8. In determining the providence of appellant’s pleas, it is uncontroverted that an appellate court must consider the entire record in a case. United States v. Bester, 42 MJ 75 (1995); see also United States ¶ Martin, 39 MJ 111 (CMA 1994); United States v. Smith, 34 MJ 319, 324 (CMA 1992). Appellant’s record shows that he was charged with violating a lawful order from Sergeant Homan; he stipulated that he received such order from that person; and he admitted to the judge that he failed to obey “this lawful order issued by Staff Sergeant Homan.” His appellate counsel now asks this Court to infer from certain other parts of the record that appellant received no verbal order from SSgt Homan but, instead, that he received only a copy of the administrative rules for parolees. He further asks this Court to hold as a matter of law that such installation prisoner rules are not a proper subject of an Article 92 prosecution. Final Brief at 4-5.

9. We must again decline the invitation of the defense to speculate post-trial as to the existence of facts which might invalidate an appellant’s guilty pleas. See generally United States v. Harrison, 26 MJ at 476. Such rejection is particularly appropriate in appellant’s case where the inference sought to be drawn post-trial would contradict express admissions by the accused. See also United States v. Davenport, 9 MJ 364, 367 (CMA 1980). In any event, the cited responses of appellant do no more than establish that his drinking violated written prison rules handed to him by SSgt Homan. Such a fact is not inconsistent with SSgt Homan’s also giving appellant an order not to drink on this particular occasion. E.g., United States v. Traxler, 39 MJ 476 (CMA 1994). Finally, it was appellant’s pleas of guilty, his agreed-to stipulation of fact, and his failure to withdraw his pleas which made it unnecessary for the prosecution to call SSgt Homan at trial to clarify any ambiguity on this point. In these circumstances, appellant’s guilty pleas must stand.

10. One further matter needs to be addressed. The appellate court below in its second review of this case stated:

When the [then] Court of Military Appeals permits appellants to raise issues for the first time before them without requiring a showing of good cause, and returns the case for us to repeat our review of the case, it impeaches confidence in this Court’s performance of its statutory duties and provides incentive to appellate counsel to engage in piecemeal litigation____

Unpub. op. at 2.

11. The record in this case shows that there were different appellate defense counsel at our level and the level of the Court of Military Review. The record further shows that the new appellate defense counsel raised an issue at our Court that was not raised at the court below. Finally, our Court, in order to facilitate the exercise of our duties under Article 67(a)(3), UCMJ, 10 USC § 867(a)(3) (1989) (which requires “good cause” for the grant of an issue), granted this new issue and remanded the case to the lower court specifically directing their initial review of the new issue.

12. With this record in mind, we are at a loss to understand the apparent position on “new issues” taken by the lower court. The mere change of counsel and the raising of a new issue does not constitute “good cause.” Our Court can grant a case and take action on it under Article 67(a)(3) only for “good cause,” and we did so in this case.

13. As far as the implication that an issue not raised at the lower level cannot be raised before us, we are sure the court below would not sanction a “potted plant”² role for appellate counsel with regard to new issues. The military appellate counsel are nationally known as aggressive, imaginative, and professional advocates who are not shy about raising proper new issues in a ease no matter what the level of appeal. It is solely within this Court’s discretion under Article 67 to determine whether an issue is properly raised. We are not bound by “the rules of procedure established by The [sic] Judge Advocates General under Article 66(f).” See unpub. op. at 2.

14. Let us reassure the court below that any remands from our Court are not to be considered a “practice [that] is ill advised,” unpub. op. at 2; rather they are reflections of our respect and recognition of the high quality and expertise of the now-Courts of Criminal Appeals. That court and our Court both aim at the same high target—true justice for the servicemember. In this case, in order to insure justice being done at our level, this Court determined to exercise its judicial discretion in the form of a remand.

The decision of the United States Air Force Court of Military Review upon further review is affirmed.

Judges GIERKE and WISS concur.

1 . See 41 MJ 213, 229 n. * (1994).

2 . The term “potted plant” is used in America's image-based society to distinguish passive non-players ("is a potted plant") from people of action ("is not a potted plant”). It is derived from Brendan V. Sullivan, Jr.’s, response to Senator Inouye, when the Senator was attempting to limit Mr. Sullivan's role in protecting his client (Oliver North) from what Mr. Sullivan perceived as unfair questioning by the Senate staff during the 1987 Irangate Hearings: "Well sir, I’m not a potted plant. I'm here as the lawyer. That's my job.”