United States v. Lee , 73 M.J. 166 ( 2014 )

UNITED STATES, Appellee
v.
Jonathan E. LEE, Captain
U.S. Marine Corps, Appellant
No. 07-0725
Crim. App. No. 200600543
United States Court of Appeals for the Armed Forces
Argued December 17, 2013
Decided March 7, 2014
RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, STUCKY, and OHLSON, JJ., joined.
Counsel
For Appellant: Captain Jason R. Wareham, USMC (argued); Colonel
John G. Baker, USMC, and Eugene R. Fidell, Esq. (on brief).
For Appellee: Major Paul M. Ervasti, USMC (argued); Brian K.
Keller, Esq. (on brief); Lieutenant Commander Keith B. Lofland,
JAGC, USN.
Military Judges: Steven F. Day, Nicole K. Hudspeth, and Jeffrey
M. Sankey
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lee, 07-0725/MC
Judge RYAN delivered the opinion of the Court.
On September 24, 2013, this Court granted review of the
following issue:
WHETHER THE [NMCCA] ERRED IN FINDING NO DUE PROCESS
VIOLATION WHERE 2,500 DAYS ELAPSED BETWEEN SENTENCING
AND REMOVAL OF APPELLANT’S NAME FROM THE TEXAS SEX
OFFENDER REGISTRY.
In many senses this case casts the military justice system
in a far from favorable light. By the time Appellant’s court-
martial concluded on May 4, 2005, Appellant’s military counsel
was prosecuting other cases under the supervision of the
prosecutor in Appellant’s own court-martial. Most of the post-
trial appellate delay now claimed -- all but 141 days –- stemmed
from appeals and fact-finding hearings1 related to this
situation.
The fact remains, however, that at the end of the appellate
process for the initial court-martial, the United States Navy-
Marine Corps Court of Criminal Appeals (NMCCA) set aside the
findings and sentence, and authorized a rehearing for all
charges and specifications that were not already dismissed, as a
“‘needed prophylaxis’” to protect the rights to counsel and due
process. See United States v. Lee, 70 M.J. 535, 541–42 (N–M.
Ct. Crim. App. 2011) (citation omitted).
1
These fact-finding hearings were held in accordance with United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
2
United States v. Lee, 07-0725/MC
In turn, and as relevant to our decision, rather than
proceed to a rehearing on the remaining specifications,
Appellant entered into a pretrial agreement to plead guilty to
two reformulated specifications of conduct unbecoming an officer
and a gentleman, in violation of Article 133, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 933 (2012). Thereafter,
and almost immediately after the military judge denied his
motion at the rehearing for appropriate relief for post-trial
appellate delay arising from the earlier trial, Appellant
unconditionally pleaded guilty to two offenses under Article
133, UCMJ. Under these circumstances, he waived any speedy
appellate review claim relating to the post-trial period
preceding the rehearing, including any prejudice from the
additional time spent on the Texas Public Sex Offender Registry
prior to the waiver. See United States v. Bradley, 68 M.J. 279,
281 (C.A.A.F. 2010) (“An unconditional plea of guilty waives all
nonjurisdictional defects at earlier stages of the
proceedings.”); United States v. Joseph, 11 M.J. 333, 335
(C.M.A. 1981).
Moreover, applying the four-factor analysis of United
States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), the
remaining 141-day period of review between the sentencing
portion of Appellant’s rehearing and the convening authority’s
action did not amount to a due process violation.
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The decision of the NMCCA is affirmed.
I. FACTS
Between January 9, 2004, and January 12, 2004, Appellant, a
captain, attended a Professional Military Education course in
Londonderry, Ireland. Over the course of the weekend, Appellant
engaged in nonconsensual sexual conduct with five different
enlisted Marines.
At the court-martial for the charges stemming from this
conduct, Appellant was represented by civilian counsel –- acting
as lead counsel –- and detailed military counsel. Prior to the
conclusion of Appellant’s court-martial, his military counsel
was transferred to duties in the prosecution office. By the
time Appellant’s court-martial concluded on May 4, 2005,
Appellant’s military counsel was prosecuting other cases under
the supervision of the prosecutor in Appellant’s court-martial.2
While civilian and military counsel generally informed Appellant
that his military counsel’s new prosecution duties might create
a potential conflict of interest, they did not inform Appellant
that his military counsel would be directly supervised by the
prosecutor in his court-martial. Appellant did not learn of
this fact until he was already serving his term of confinement.
2
As Appellant acknowledged in his brief, the U.S. Marine Corps
has implemented a number of rule changes to avoid this worrisome
practice in the future. See Brief for Appellant at 29 n.85,
United States v. Lee, No. 07-0725 (C.A.A.F. Oct. 24, 2013).
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United States v. Lee, 07-0725/MC
On May 4, 2005, following mixed pleas, a military judge
sitting alone as a general court-martial convicted Appellant of
one specification of conduct unbecoming an officer and a
gentleman, in violation of Article 133, UCMJ, three
specifications of burglary, in violation of Article 129, UCMJ,
10 U.S.C. § 929 (2000), three specifications of fraternization,
in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000), and
five specifications of indecent assault, also in violation of
Article 134, UCMJ. The adjudged sentence provided for
confinement for a period of three years, forfeiture of all pay
and allowances, and a dismissal. The convening authority
approved the adjudged sentence and ordered all but the dismissal
to be executed.
Once convicted, Appellant served his term of confinement --
less good time and earned confinement credit -- from May 4,
2005, until July 12, 2007. Upon release from confinement,
Appellant’s indecent assault convictions required notifying
state and local law enforcement agencies for purposes of sex
offender registration. On July 20, 2007, he was entered on the
Texas Public Sex Offender Registry.
Appellant sought relief before the NMCCA on several
grounds, including “multiplicious” charges and sufficiency of
the evidence. United States v. Lee, No. NMCCA 200600543, 2007
CCA LEXIS 233, at *2, 2007 WL 1890683, at *1 (N-M. Ct. Crim.
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United States v. Lee, 07-0725/MC
App. June 26, 2007) (unpublished). Appellant also argued that
his trial defense counsel failed to disclose a conflict of
interest, namely that he was acting as a prosecutor in another
case while representing Appellant. Id. at *2, 2007 WL 1890683,
at *1. On June 26, 2007, the NMCCA dismissed the specification
of conduct unbecoming an officer and a gentleman as
“multiplicious” of the burglary and indecent assault charges,
and one of the indecent assault specifications as factually
insufficient. Id. at *2–*3, 2007 WL 1890683, at *1. It found,
however, that there was no actual conflict of interest that
adversely affected counsel’s performance. Id. at *17, 2007 WL
1890683, at *7. After reassessing the sentence, the NMCCA
affirmed the sentence as approved by the convening authority.
Id. at *24, 2007 WL 1890683, at *9.
This Court then granted review to determine whether a
conflict of interest existed that resulted in an uninformed
selection of counsel. United States v. Lee, 66 M.J. 387, 388
(C.A.A.F. 2008). On June 13, 2008, unable to resolve the issue
based on the record as then developed, this Court remanded the
case for a fact-finding hearing pursuant to DuBay. Id. at 390.
On July 28, 2011, after three separate DuBay hearings,3 the
NMCCA set aside the findings and sentence and authorized a
3
See Lee, 70 M.J. at 536 (explaining the reasons for the
different hearings).
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United States v. Lee, 07-0725/MC
rehearing for all charges and specifications that were not
already dismissed. Lee, 70 M.J. at 542. Although the NMCCA
found no prejudicial impact from any ineffectiveness by counsel,
it explained that its result was a “‘needed prophylaxis’” to
protect the rights to counsel and due process. Id. at 541
(citation omitted).
Due to the substantial passage of time since the charged
conduct in early 2005, by the time the NMCCA authorized
Appellant’s rehearing in 2011, several witnesses had either
forgotten important details of the events or requested not to
testify entirely. As a result, Appellant negotiated a pretrial
agreement with the convening authority to plead guilty to two
reformulated specifications of conduct unbecoming an officer and
a gentleman, in violation of Article 133, UCMJ, in exchange for
the withdrawal of all other charges and specifications. Nowhere
in this agreement did Appellant condition his pleas on reserving
the right to review of any pretrial motions pursuant to Rule for
Courts-Martial (R.C.M.) 910(a)(2). The convening authority
accepted Appellant’s offer to plead guilty and signed the
pretrial agreement on March 1, 2012.
Subsequently, on March 7, 2012, Appellant filed a motion
for appropriate relief on the grounds of unreasonable post-trial
delay. The military judge denied this motion on March 12, 2012,
noting the “constant motion” during the appellate process and a
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general lack of prejudice.
The same day, the military judge reviewed the provisions of
the pretrial agreement with Appellant and accepted his guilty
pleas to the two specifications under Article 133, UCMJ. The
adjudged sentence provided for confinement for a period of nine
months, forfeiture of all pay and allowances for nine months,
and a reprimand.4 On August 1, 2012, 141 days after resentencing
-- including twenty days for a defense-requested extension --
the convening authority disapproved the reprimand pursuant to
the pretrial agreement but approved the remainder of the
sentence and ordered it executed.
II. NMCCA DECISION
On appeal under Article 66, UCMJ, 10 U.S.C. § 866 (2012),
Appellant asserted errors relating to post-trial delay and
confinement credit. On February 21, 2013, the NMCCA found no
due process violation and approved the findings and sentence.
United States v. Lee, 72 M.J. 581, 585 (N-M. Ct. Crim. App.
2013). It explained its result as follows:
The procedural history of this case and fact that we
are reviewing this case following a rehearing readily
4
Appellant received 799 days of confinement credit pursuant to
United States v. Allen, 17 M.J. 126 (C.M.A. 1984), and 123 days
pursuant to United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).
The Pierce credit was awarded for the Government’s failure to
act promptly to remove Appellant from the Texas Public Sex
Offender Registry after his indecent assault convictions were
set aside by the NMCCA on July 28, 2011.
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United States v. Lee, 07-0725/MC
dissuades us from adopting the appellant’s position.
Having been afforded appropriate and continuing due
process, involving the extensive litigation of complex
issues and the generation of a record on appeal that
dwarfs the original record of trial, resulting in
meaningful relief from error, we are being asked to
characterize the timeline necessitated by the
affording of due process as a due process violation.
We decline to so hold and likewise decline to grant
relief per our authority under Article 66(c).
Id. at 584.
III. DISCUSSION
Before we reach the question whether Appellant’s due
process rights were violated in light of the substantial
appellate delay in his case, the granted issue, we must first
determine whether Appellant waived review of this delay. We
conclude that he waived review of all but the 141 days of delay
between the sentencing portion of the rehearing and the
convening authority’s action.
A.
We have long recognized the general proposition that a plea
of guilty “waives nonjurisdictional errors that occurred in the
earlier stages of the proceedings.” Joseph, 11 M.J. at 335; see
also United States v. Lopez, 20 C.M.A. 76, 77–78, 42 C.M.R. 268,
269–70 (1970). In Bradley, we reaffirmed this general rule, but
observed that R.C.M. 910(a)(2) creates an exception where an
accused enters into a conditional guilty plea. 68 M.J. at 281–
82. However, because “there is no constitutional right to enter
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United States v. Lee, 07-0725/MC
such a plea . . . it follows that compliance with the regulation
is the sole means of entering a conditional plea and preserving
the issue on appeal.” Id.
There is no evidence in the record that Appellant
requested, or that either the Government or the military judge
consented to, the entry of a conditional plea; therefore, the
exception created by reference to R.C.M. 910(a)(2) does not
apply here. See R.C.M. 910(a)(2) (requiring “the approval of
the military judge and the consent of the Government”).
Moreover, Appellant’s guilty plea occurred after a motion for
relief for the same post-trial appellate delay he complains of
here was fully briefed, argued, and denied. In fact, it was
immediately following the military judge’s ruling, and without
any attempt to preserve the appellate delay issue for appeal,
that Appellant pleaded guilty to the two Article 133, UCMJ,
specifications.
Nevertheless, Appellant argues that guilty plea waiver
should not apply where, as here, he alleged a violation of his
right to due process under the Fifth Amendment based on
appellate delay occurring prior to his unconditional guilty
pleas at a rehearing. Reply Brief for Appellant at 2, United
States v. Lee, No. 07-0725 (C.A.A.F. Dec. 5, 2013). Our
precedent is to the contrary.
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“While the waiver doctrine is not without limits, those
limits are narrow and relate to situations in which, on its
face, the prosecution may not constitutionally be maintained.”
Bradley, 68 M.J. at 282 (citing United States v. Broce, 488 U.S.
563, 574–76 (1989) (double jeopardy); Menna v. New York, 423
U.S. 61, 61–63 (1975) (double jeopardy)). Such limits do not
arise where an appellant merely complains of “‘antecedent
constitutional violations’” or a “‘deprivation of constitutional
rights that occurred prior to the entry of the guilty plea,’”
Blackledge v. Perry, 417 U.S. 21, 30 (1974) (citation omitted),
rather they apply “where on the face of the record the court had
no power to enter the conviction or impose the sentence.”
Broce, 488 U.S. at 569; see also United States v. Schweitzer, 68
M.J. 133, 136 (C.A.A.F. 2009) (identifying limitations
recognized by this Court to the guilty-plea-waiver doctrine
where specifications are facially duplicative or fail to state
an offense). That is not this case.
Nor does this case fall within the narrow limitation for
litigated speedy trial motions alleging a violation of Article
10, UCMJ, 10 U.S.C. § 810 (2012), recognized in United States v.
Mizgala, 61 M.J. 122, 124 (C.A.A.F. 2005), and reaffirmed in
United States v. Tippit, 65 M.J. 69, 75 (C.A.A.F. 2007). See
Article 10, UCMJ (providing that “[w]hen any person subject to
this chapter is placed in arrest or confinement prior to trial,
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immediate steps shall be taken to inform him of the specific
wrong of which he is accused and to try him or to dismiss the
charges and release him”). Where an Article 10, UCMJ, motion is
litigated at trial, that issue is preserved for appeal despite
an unconditional guilty plea. Mizgala, 61 M.J. at 127; Tippit,
65 M.J. at 75. This narrow exception is based on the “‘unique
nature of the protections’ set forth in Article 10.” Tippit at
75 (quoting Mizgala, 61 M.J. at 127); see also Mizgala, 61 M.J.
at 124. Neither case suggested that the exception to the waiver
doctrine was available for motions based on delay in violation
of any other rule, statute, or constitutional provision.
Indeed, they held precisely to the contrary. Mizgala, 61 M.J.
at 124–25 (rejecting comparisons of Article 10, UCMJ, to R.C.M.
707, the Sixth Amendment, and the Speedy Trial Act); Tippit, 65
M.J. at 75 (analyzing only Article 10, UCMJ, waiver because
“Appellant’s unconditional guilty plea waived his speedy trial
rights under R.C.M. 707 and the Sixth Amendment”).
Appellant does not claim that the court-martial lacked
jurisdiction over the offenses, did not litigate a motion under
Article 10, UCMJ, and at no point has Appellant challenged the
“voluntary and intelligent character” of his pleas. See Broce,
488 U.S. at 574. Under the circumstances of this case,
Appellant waived review of the appellate delay arising prior to
his unconditional guilty pleas.
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B.
We are nonetheless left to consider whether the remaining
delay -- the 141-day period between Appellant’s sentence
rehearing and action by the convening authority -- amounted to a
due process violation. In doing so, we apply the four factors
developed in Moreno: “(1) the length of the delay; (2) the
reasons for the delay; (3) the appellant’s assertion of the
right to timely review and appeal; and (4) prejudice.” 63 M.J.
at 135 (citations omitted). We conclude that this period of
delay did not violate Appellant’s due process right to speedy
appellate review.
The 141-day period between sentencing and action by the
convening authority was facially unreasonable. Id. at 142
(creating a presumption of unreasonable delay where the
convening authority does not act within 120 days of the
completion of trial). However, twenty of those days were the
result of Appellant’s request for additional time to submit
clemency matters, and clemency was awarded. Furthermore,
Appellant did not demand speedy review during this period. Most
importantly, because Appellant’s name had already been removed
from the Texas Public Sex Offender Registry before this 141-day
period, he has not identified any particularized prejudice
resulting from this delay.
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Accordingly, we find no violation of Appellant’s due
process right to speedy appellate review for the 141-day period
between the sentencing portion of the rehearing and the
convening authority’s action.
IV. DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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