United States v. Ronghi , 60 M.J. 83 ( 2004 )


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  •                               IN THE CASE OF
    UNITED STATES, Appellee
    v.
    Frank J. RONGHI, Staff Sergeant
    U.S. Army, Appellant
    No. 03-0520
    Crim. App. No. 20000635
    United States Court of Appeals for the Armed Forces
    Argued February 11, 2004
    Decided June 30, 2004
    GIERKE, J., delivered the opinion of the Court, in which
    CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
    Counsel
    For Appellant: Captain Eilin J. Chiang (argued); Colonel Robert
    D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major
    Allyson G. Lambert (on brief); Captain Terri J. Erisman.
    For Appellee: Captain Mark A. Visger (argued); Colonel Lauren
    B. Leeker, Lieutenant Colonel Margaret B. Baines, and Captain
    Charles C. Choi (on brief).
    Military Judge:    Kenneth H. Clevenger
    This opinion is subject to editorial correction before final publication.
    United States v. Ronghi, No. 03-0520/AR
    Judge GIERKE delivered the opinion of the Court.
    Congress passed a bill authorizing the court-martial
    punishment of confinement for life without eligibility for
    parole (LWOP) on November 6, 1997.1        The President signed that
    bill into law on November 18, 1997.2          However, the President did
    not amend the Manual for Courts-Martial to incorporate LWOP
    until April 11, 2002.3      The issue in this case is whether LWOP
    was an authorized court-martial punishment for the crime of
    premeditated murder during the period between enactment of the
    LWOP statute and the Manual’s revision.          We conclude that the
    statute creating LWOP authorized that punishment for
    premeditated murder offenses committed after November 18, 1997.
    Background
    Appellant was deployed with the 82d Airborne Division in
    Kosovo on January 13, 2000, when he committed the crimes that
    resulted in his sentence to LWOP.         As aptly described by the
    government, Appellant “took advantage of the trust, respect, and
    kindness” that eleven-year-old Merita Shabiu showed to American
    soldiers.    “Appellant led her to a dark and deserted, filthy,
    1
    National Defense Authorization Act for Fiscal Year 1998, Pub.
    L. No. 105-85, § 581, 
    111 Stat. 1629
    , 1759 (1997) (codified at
    10 U.S.C. § 856a (2000)).
    2
    Signing Statement, 33 Weekly Comp. Pres. Doc. 1861 (Nov. 18,
    1997), reprinted in 1997 U.S.C.C.A.N. 2707.
    3
    Exec. Order No. 13,262, 
    67 Fed. Reg. 18,773
     (April 17, 2002).
    2
    United States v. Ronghi, No. 03-0520/AR
    trash-strewn basement where he indecently assaulted, forcibly
    anally sodomized, and murdered with premeditation, this innocent
    child victim.”
    As a result of these brutal acts, Appellant pled guilty to
    and was found guilty of premeditated murder, indecent acts with
    a child under 16 years of age, and forcible sodomy of a child
    under 16 years of age, in violation of Articles 118, 134, and
    125 of the Uniform Code of Military Justice (UCMJ).      
    10 U.S.C. §§ 918
    , 934, 925 (2000).       Appellant agreed to plead guilty under
    a pretrial agreement that provided for a non-capital referral.
    At trial, both the defense counsel and Appellant personally
    agreed that the maximum authorized punishment included LWOP.
    On August 1, 2000, a court-martial panel of officer members
    sentenced Appellant to LWOP, a dishonorable discharge,
    forfeiture of all pay and allowances, and reduction to the
    lowest enlisted grade.      The convening authority approved the
    sentence as adjudged, and the Army Court of Criminal Appeals
    affirmed the findings and sentence in an unpublished opinion.4
    We granted review to determine whether LWOP was an authorized
    court-martial punishment for the crime of premeditated murder on
    the date of Appellant’s offenses.5
    4
    United States v.Ronghi, No. ARMY 20000635 (A. Ct. Crim. App.
    May 27, 2003).
    5
    See United States v. Ronghi, 
    59 M.J. 167
     (C.A.A.F. 2003) (order
    granting review).
    3
    United States v. Ronghi, No. 03-0520/AR
    Discussion
    “It is well established that, absent a clear direction by
    Congress to the contrary, a law takes effect on the date of its
    enactment.”    United States v. Pritt, 
    54 M.J. 47
    , 50 (C.A.A.F.
    2000) (quoting Gozlon-Peretz v. United States, 
    498 U.S. 395
    , 404
    (1991)).    An examination of the applicable statutes reveals that
    Congress authorized LWOP as a sentence for any premeditated
    murder committed from the day after its enactment forward.
    Article 56a Authorized LWOP for Premeditated Murder Offenses
    Committed Starting the Day After Its Enactment
    Article 56a(a) of the UCMJ provides, “For any offense for
    which a sentence of confinement for life may be adjudged, a
    court-martial may adjudge a sentence of confinement for life
    without eligibility for parole.”          10 U.S.C. § 856a(a) (2000).
    The statute that added this language to the UCMJ also provided
    that Article 56a “shall be applicable only with respect to an
    offense committed after the date of the enactment of this Act.”
    Pub. L. No. 105-85, § 581(b), 111 Stat. at 1759.         That date of
    enactment was November 18, 1997, when the President signed it
    into law.
    When Congress adopted Article 118, it provided only two
    authorized sentences for the offenses of premeditated murder and
    felony murder:     “death or imprisonment for life.”      Art. 118,
    UCMJ; 
    10 U.S.C. § 918
     (2000).        When it adopted Article 56a,
    Congress plainly intended to authorize LWOP as a third available
    4
    United States v. Ronghi, No. 03-0520/AR
    sentence for a premeditated murder that occurred after November
    18, 1997.    Thus, absent some other statutory provision limiting
    LWOP’s availability, it was an authorized sentence when
    Appellant committed his offenses on January 13, 2000.
    The 2000 Manual for Courts-Martial
    Did Not Conflict with the LWOP Statute
    For most of the UCMJ’s punitive articles, the President
    plays a role in determining the maximum authorized punishment.
    Article 56 provides, “The punishment which a court-martial may
    direct for an offense may not exceed such limits as the
    President may prescribe for that offense.”        Art. 56, UCMJ, 
    10 U.S.C. § 856
     (2000).      Article 18 similarly authorizes the
    President to prescribe “limitations” on the punishments adjudged
    by general courts-martial.       Art. 18, UCMJ, 
    10 U.S.C. § 818
    (2000).   The Supreme Court has upheld the constitutionality of
    this general delegation of Congress’s “authority to define
    criminal punishments” for military offenses.        Loving v. United
    States, 
    517 U.S. 748
    , 768 (1996).         The President has executed
    this delegated authority by establishing maximum punishments in
    Part IV of the Manual for Courts-Martial.
    The 2000 edition of the Manual for Courts-Martial, which
    governed Appellant’s case,6 provided that the maximum punishment
    6
    The 2000 Manual incorporated the National Defense Authorization
    Act for Fiscal Year 2000’s UCMJ amendments and Executive Order
    13,140’s amendments to the Manual. 2000 Manual at Preface. The
    National Defense Authorization Act for Fiscal Year 2000, which
    5
    United States v. Ronghi, No. 03-0520/AR
    for premeditated murder was “death.”         Manual for Courts-Martial,
    United States, Pt. IV, para. 43.e(1) (2000 ed.) [hereinafter
    2000 Manual].    The same Manual provision noted that the
    mandatory minimum punishment for premeditated murder was
    “imprisonment for life.”       
    Id.
       Because LWOP is a lesser
    punishment than the maximum (death), the Manual’s maximum
    sentence provision did not conflict with the congressionally-
    authorized sentence of LWOP in a premeditated murder case.
    Additionally, the 2002 executive order that amended the
    Manual for Courts-Martial to incorporate LWOP indicated that the
    punishment “shall only apply to offenses committed after
    November 18, 1997.”      Exec. Order 13,262 § 6.b, 
    67 Fed. Reg. 18,773
    , 18,779 (April 11, 2002).          Thus, the executive order
    itself recognized LWOP’s availability as an authorized sentence
    at the time of Appellant’s offenses.
    Another presidential limitation on court-martial sentencing
    authority is Rule for Courts-Martial (R.C.M.) 1003, which
    provides an exclusive list of the kinds of punishments that a
    court-martial may impose.       The 2000 Manual’s version of R.C.M.
    1003 did not specifically mention LWOP.         Rather, the 2000
    is not relevant to this appeal, was enacted on October 5, 1999.
    Pub. L. No. 106-65, 
    113 Stat. 512
     (1999). Executive Order
    13,140 was signed on October 6, 1999, and generally took effect
    on November 1, 1999. See Exec. Order 13,140 § 4, 
    64 Fed. Reg. 55,115
    , 55,120 (Oct. 12, 1999).
    6
    United States v. Ronghi, No. 03-0520/AR
    Manual’s version of R.C.M. 1003, like its predecessors,
    authorized “confinement” as a form of punishment without
    addressing the term of confinement at all.        But R.C.M. 1003
    nevertheless allowed LWOP, because it is not a new form of
    punishment, but simply a longer term of confinement than
    military law had previously allowed a court-martial to adjudge.7
    In State v. Allen, 
    488 S.E.2d 188
     (N.C. 1997), the North
    Carolina Supreme Court faced a similar issue.        Under North
    Carolina law, premeditated murder is punishable by only death or
    life imprisonment without parole.         
    N.C. Gen. Stat. § 14-17
    (2003).   The North Carolina Constitution provides:
    The following punishments only shall be known to the
    laws of this State: death, imprisonment, fines,
    suspension of jail or prison term with or without
    conditions, restitutions, community service,
    restraints on liberty, work programs, removal from
    office, and disqualification to hold and enjoy any
    office of honor, trust, or profit under this State.
    N.C. Const. art. XI, § 1.       One issue in Allen was whether the
    North Carolina legislature was authorized to create the
    punishment of LWOP, which Article XI did not expressly mention.
    The North Carolina Supreme Court held that it was, reasoning
    that “the term ‘life imprisonment without parole’ falls within
    the meaning of the constitutional term ‘imprisonment,’ so the
    7
    See Schick v. Reed, 
    419 U.S. 256
    , 269 (1974) (Marshall, J.,
    dissenting) (“Confinement without possibility of parole is
    unknown to military law; it is not and never has been authorized
    for any UCMJ offense.” (footnote and citations omitted)).
    7
    United States v. Ronghi, No. 03-0520/AR
    sentence was authorized by the Constitution.”       Allen, 488 S.E.2d
    at 737.    We find Allen persuasive.      Applying the North Carolina
    Supreme Court’s reasoning to the military justice system
    supports the conclusion that “confinement for life without
    eligibility for parole” falls within the meaning of R.C.M.
    1003(b)(7)’s term “confinement.”
    We hold that LWOP was an authorized punishment for
    Appellant’s offenses.      To resolve the present case, we need not,
    and do not, address the availability of LWOP for any other
    offense.
    CONCLUSION
    The decision of the United States Army Court of Criminal
    Appeals is affirmed.
    8