United States v. Pineda ( 2001 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Noel A. PINEDA, Corporal
U.S. Marine Corps, Appellant
No. 99-0915
Crim. App. No. 98-1659
United States Court of Appeals for the Armed Forces
Argued February 29, 2000
Decided January 9, 2001
SULLIVAN, J., delivered the opinion of the Court, in which GIERKE
and EFFRON, JJ., and COX, S.J., joined. CRAWFORD, C.J., filed an
opinion concurring in the result.
Counsel
For Appellant: Lieutenant Omar R. Lopez, JAGC, USNR (argued).
For Appellee: Lieutenant Kevin S. Rosenberg, JAGC, USNR (argued); Colonel
Kevin M. Sandkuhler, USMC, and Commander Eugene E. Irvin, JAGC, USN (on
brief); Lieutenant Commander Philip Sundel, JAGC, USNR, and Lieutenant
Janice O’Grady, JAGC, USNR.
Military Judge: R. G. Williams
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Pineda, 99-0915/MC
Judge SULLIVAN delivered the opinion of the Court.
On August 28, 1997, appellant was tried by a special court-
martial composed of a military judge sitting alone at the Naval
Legal Service Office, Middle Atlantic, Norfolk, Virginia. In
accordance with his pleas, he was found guilty of unauthorized
absence, nine specifications of making false official statements,
forgery, and six specifications of fraud against the United
States, in violation of Articles 86, 107, 123, and 132, Uniform
Code of Military Justice, 10 USC §§ 886, 907, 923, and 932. He
was sentenced to a bad-conduct discharge, confinement for 4
months, forfeiture of $600 pay per month for 4 months, and
reduction to pay grade E-1. On December 18, 1997, the convening
authority acted in this case. 1 On May 28, 1999, the Court of
Criminal Appeals affirmed in an unpublished opinion (No. 98-
1659).
We granted review in this case on October 22, 1999, on the
following issues:
I. WHETHER THE LOWER COURT ERRED IN
AFFIRMING THE MILITARY JUDGE’S DECISION
NOT TO INQUIRE INTO APPELLANT’S
UNDERSTANDING OF THE RAMIFICATIONS OF HIS
REQUEST FOR A BAD-CONDUCT DISCHARGE.
1 The convening authority’s action in this case was unclear
regarding whether appellant’s bad-conduct discharge was approved.
However, an affidavit supplied by the convening authority and
made part of the record without appellant’s objection makes clear
the convening authority’s intent to approve the bad-conduct
discharge. Therefore, we are satisfied the bad-conduct discharge
was approved.
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United States v. Pineda, 99-0915/MC
II. WHETHER THE LOWER COURT ERRED IN NOT
FINDING THAT THE TRIAL DEFENSE COUNSEL’S
ERROR MATERIALLY PREJUDICED APPELLANT’S
SUBSTANTIAL RIGHTS WHERE HE ARGUED THAT A
DISCHARGE WAS APPROPRIATE EVEN THOUGH
APPELLANT HAD NOT REQUESTED IT.
We hold that defense counsel erred in conceding the
appropriateness of a bad-conduct discharge in his sentencing
argument without putting in the record that appellant agreed with
this argument. United States v. Dresen, 40 M.J. 462, 465 (CMA
1994). Such error, however, did not materially prejudice
appellant’s substantial rights. United States v. Robinson, 25 M.J.
43, 44 (CMA 1987).
Appellant was a 19-year-old Marine with one-and-a-half years
of military service at the time he began committing the charged
offenses. He engaged in a scheme to secure additional allowances
from the United States Government by falsifying various official
forms to the effect that he was married. He maintained this
scheme from March of 1995 to January of 1997, and obtained
various unauthorized allowances in the approximate amount of
$15,000. (Prosecution Exhibit 11). As a result of these criminal
activities, appellant rented and lived in a two-bedroom apartment
in the Virginia Beach area. He was promoted to the rank of
corporal (E-4) during the period of these fraudulent activities
and borrowed $15,000 from his parents to make restitution.
The Court of Criminal Appeals found the following facts
concerning the granted issues:
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United States v. Pineda, 99-0915/MC
Appellant obtained a pretrial agreement
which allowed his charges to be brought to
a special court-martial, in lieu of the
Government seeking a referral to a general
court-martial. This was the sole
consideration given by the Government in
the pretrial agreement. In return,
appellant had to enter pleas of guilty to
the charges and specifications and make
restitution to the United States in the
amount of $15,425.03. Appellate Exhibit I
and Record at 92-95.
During the sentencing portion of the
trial, appellant elected to make an
unsworn statement. The relevant portion
is as follows:
ICC: Now, you know what the maximum
possible punishment is in this case, and
you and I have been frank with each other
with regard to the type of discharge
you’re undoubtedly going to receive, and
if this court didn’t, the Marine Corps
would. What confinement are you -- do you
have any request you want to make of the
Judge with regard to confinement?
ACCUSED: Yes - yes, I do. I’m -
I’m in debt to my to my parents for
helping with the -- the restitution, and
I’m making every possible effort to -- to
pay them back. They don’t make that much
money themselves, my mom is a teacher’s
aid at a school and my dad works at a
factory. My bother [sic] also helps out
for expenses. I got a second job to -- to
help them out a little bit more, and
whatever happens I’m going to try to make
-- make the best of anything, that’s --
that’s what I always do.
Record at 84. During argument on
sentencing, appellant’s counsel made the
following comments:
So, I would respectfully submit,
Your Honor, that perhaps a bad-
conduct discharge, and I don’t like
asking for one, but I’m practical
it’s going to happen, and the
forfeiture, and I agree the
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United States v. Pineda, 99-0915/MC
reduction to pay grade E-1 are
appropriate in this particular case.
But I respectfully submit, Your
Honor, that a period of confinement,
certainly a lengthy period of
confinement in his case is -- is
simply not warranted and I
respectfully ask in his behalf that
you not confine him. Thank you.
Record at 90. The military judge did not
ask appellant any questions regarding his
understanding of the ramifications of a
bad-conduct discharge, nor did he ask
appellant if he authorized his counsel to
request a punitive discharge on his
behalf.
Unpub. op. at 2-3 (emphasis added).
The appellate court below found that defense counsel erred.
It said, “In appellant’s case, it is clear that his counsel, at a
minimum, conceded the appropriateness of the discharge without
any indication on the record that appellant desired such an
outcome. This is error. United States v. Dresen, 40 M.J. 462 (CMA
1994).” Id. at 4. However, it also found no prejudice. It
said:
Prejudice will not be presumed. We must
decide if the argument of counsel
prejudiced appellant’s sentence and
increased appellant’s chances of otherwise
being awarded a bad-conduct discharge. We
find that it did not. Unlike the facts in
McNally, in which our superior court found
prejudice at a special court-martial
because his confinement was already
limited by the pretrial agreement and the
nature of the charges were not so serious
that a discharge was inevitable, we find
the circumstances surrounding appellant’s
offenses were such that a punitive
discharge was inevitable. These were very
serious charges that were brought to a
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United States v. Pineda, 99-0915/MC
special, vice a general, court-martial
pursuant to a pretrial agreement.
Appellant was required to make restitution
of over $15,000. The charges and
specifications of criminal misconduct are
numerous. We cannot believe that any
sentencing authority would not have
awarded a punitive discharge, no matter
how elegantly or forcefully defense
counsel may have argued for retention.
Id. at 4-5 (emphasis added).
___ ___ ___
A punitive separation from the military, either a bad-conduct
discharge or a dishonorable discharge, is a severe punishment and
has long been recognized as such by this Court. See United
States v. McNally, 16 M.J. 32, 33 (CMA 1983), and cases cited
therein. Nevertheless, we have recognized that in certain
circumstances a military accused may request such a punishment be
imposed by his court-martial. E.g., United States v. Volmar, 15
M.J. 339 (CMA 1983). Our case law, however, reflects this Court’s
views that defense counsel not ask for this type of discharge in
contravention of an accused’s wishes, and that a military judge
make appropriate inquiries where an apparent conflict exists
between them. 2 See United States v. Lyons, 36 M.J. 425, 427 (CMA
1993). Moreover, we have held that a defense counsel may not
2 There is no conflict in the record in this case which
required the military judge to stop this trial and interrogate
appellant and his defense counsel in this matter.
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United States v. Pineda, 99-0915/MC
even concede the appropriateness of a punitive discharge in the
face of a silent record. Id.
In United States v. Dresen, this Court restated this law
concerning defense counsel’s arguments for a punitive discharge.
We said:
Of course, an accused has a right to ask
the sentencing authority for a particular
punishment to the exclusion of other kinds
of permissible penalties, and a defense
counsel may advocate an accused’s wishes
in this regard in an effort to effectuate
them. United States v. Weatherford, 19
USCMA 424, 42 CMR 26 (1970). Counsel may
not, however, ask a court-martial to
impose a punitive discharge when the
accused’s wishes are to the contrary.
United States v. Robinson, 25 M.J. 43 (CMA
1987); United States v. Webb, 5 M.J. 406
(CMA 1978); United States v. Weatherford,
supra. Accordingly, when defense counsel
does seek a punitive discharge or does
concede the appropriateness of such a
dischargeeven as a tactical step to
accomplish mitigation of other elements of
a possible sentencecounsel must make a
record that such advocacy is pursuant to
the accused’s wishes. United States v.
Lyons, 36 M.J. 425 (CMA 1993); United States
v. McNally, 16 M.J. 32 (CMA 1983).
40 M.J. at 465 (emphasis added). In the present case, we hold that
there was not an adequate record of appellant’s desire that a
punitive discharge be actually imposed. Cf. United States v.
Lyons, supra at 426 (“I feel that it is in both my interest and
the Navy [sic] to discharge me.”), and cases cited at 427.
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United States v. Pineda, 99-0915/MC
Nevertheless, in United States v. Dresen, supra, we held that
the failure to make a proper record of the accused’s wishes does
not, per se, require an appellate court to set aside a court-
martial sentence. Instead, in that case we assessed the impact
of that error on the approved sentence to determine whether
sufficient prejudice existed for a finding of ineffective
assistance of counsel under the second prong of the test in
Strickland v. Washington, 466 U.S. 668 (1984). The same inquiry
is appropriate in the present case with respect to the adjudged
sentence. In particular, where the facts of a given case compel
a conclusion that a bad-conduct discharge was reasonably likely,
we do not normally order a new sentence hearing. United States
v. Volmar, supra at 343.
Turning to the record before us, we note that appellant
implicitly acknowledged the reasonable certainty of a punitive
discharge in his case when questioned by defense counsel. (R. at
84). His belief in this regard was well justified. He was
convicted of numerous offenses (17) involving repeated financial
frauds on the United States Government involving a substantial
amount of money, approximately $15,000. See United States v.
Robinson, supra at 44. Moreover, in his brief military career,
he was previously counseled for financial dishonesty
(unauthorized use of a government phone), and he committed some
of the charged military offenses while a noncommissioned officer.
His repeated abuse of government property entrusted to him
greatly enhanced his chances of receiving a punitive discharge.
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United States v. Pineda, 99-0915/MC
Cf. United States v. Dresen, supra at 465 (special circumstances
existed suggesting forceful and persuasive plea for clemency may
have been successful). Finally, this was a trial before a
military judge alone, and we are confident that this judge was
aware that a proper record had not been made and disregarded the
improper argument before him. See United States v. Robinson,
supra at 44; see also United States v. Raya, 45 M.J. 251, 254
(1996). Therefore, appellant has failed to prove that he was
prejudiced by his counsel’s improper argument. See Strickland v.
Washington, supra. In these circumstances, we agree with the
appellate court below that a sentence rehearing is not required
in this case.
The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
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United States v. Pineda, No. 99-0915/MC
CRAWFORD, Chief Judge (concurring in the result):
In my judgment, appellant’s claim is essentially one
of ineffective assistance of counsel. See, e.g., United
States v. Pfister, 53 M.J. 158, 160 (2000)(Sullivan, J.,
concurring in the result). While I agree that it would
have been preferable for the military judge to inquire on
the record whether appellant’s civilian counsel was
requesting a discharge, and if so, whether appellant
concurred in such a request, I find no error based upon the
facts of this case.
“Defense counsel is an advocate for the accused, not
an amicus to the court.” United States v. Volmar, 15 M.J.
339, 340 (CMA 1983), citing Ellis v. United States,
356 U.S. 674 (1958). When an accused expresses a desire to
stay in the service (whether it be to avoid a punitive
discharge or because he wants to continue to serve the
nation), the defense counsel errs by conceding the
appropriateness of a punitive discharge or telling the
court that the accused’s conduct warrants such. See United
States v. Garcia, 18 USCMA 75, 76, 77, 39 CMR 75, 76, 77
(1968); United States v. Richardson, 18 USCMA 52, 53, 39
CMR 52, 53 (1968); United States v. Holcomb, 20 USCMA 309,
43 CMR 149 (1971); United States v. Webb, 5 M.J. 406 (CMA
1978).
United States v. Pineda, No. 99-0915/MC
While the majority correctly notes that there is no
evidence that appellant desired to be discharged, I note
that the record is devoid of any evidence to the contrary.
Nowhere does appellant express a desire to be retained in
the service after his conviction. See United States v.
Lyons, 36 M.J. 425, 427 (CMA 1993). The record indicates
that both appellant and his counsel were resigned to the
fact that appellant’s days in the Marine Corps were short
lived, for the reasons cited by the majority. __ MJ at(8).
The evidence of record convinces me that appellant’s
primary desire was to avoid incarceration so that he could
continue to work and repay the $15,000 debt his parents
incurred in making the Government whole following
appellant’s larcenous adventures.
As I stated in United States v. Lee, 52 M.J. 51, 53
(1999)(Crawford, J., concurring in the result): “The key
to effective advocacy on behalf of one’s client ...
requires the advocate to do many things ..., including
making rational choices based on the unique circumstances
of each case....” By conceding the likelihood of
appellant’s discharge from the Marine Corps, whether that
discharge came in the form of a punitive sentence from the
military judge, or whether it came administratively after
trial, defense counsel was asking the judge to mitigate
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United States v. Pineda, No. 99-0915/MC
confinement. This concession also dovetailed with the
defense theory at sentencing -- let this “fallen Marine”
return home, remain employed, and repay his debts.
Counsel’s concession was entirely appropriate in light of
the number and nature of the offenses with which his client
was charged. Zealous representation does not equate to
making hopeless arguments. See id. at 54. Finding no
deficiency in counsel’s representation under the first
prong of Strickland v. Washington, 466 U.S. 668 (1984), I
would affirm the findings and sentence in this case.
3