United States v. Wise ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
DANIEL R. WISE
CORPORAL (E-4), U.S. MARINE CORPS
NMCCA 201300192
GENERAL COURT-MARTIAL
Sentence Adjudged: 28 February 2013.
Military Judge: LtCol Chris Thielemann, USMC.
Convening Authority: Commanding Officer, 1st Marine
Logistics Group, MarForPac, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Maj A.J. Workman,
USMC.
For Appellant: CAPT Bree Ermentrout, JAGC, USN.
For Appellee: LCDR Clayton Trivett, JAGC, USN; LT Lindsay
Geiselman, JAGC, USN.
16 January 2014
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of making a false statement and one specification
of wrongfully possessing child pornography, in violation of
Articles 107 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 907 and 934. The military judge sentenced the
appellant to forty-two month’s confinement, reduction to pay
grade E-1, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged, suspended
confinement in excess of eighteen months pursuant to a pretrial
agreement, and, except for the dishonorable discharge, ordered
the sentence executed.
The appellant’s sole assignment of error is that the
general court-martial lacked jurisdiction because the CA who
referred the appellant’s charges failed to personally review and
select the court-martial members. After careful consideration
of the record of trial and the submissions of the parties, we
are convinced that the court-martial had jurisdiction over the
case, that the findings and the sentence are correct in law and
fact, and that no error materially prejudicial to the
substantial rights of the appellant occurred. Arts. 59(a) and
66(c), UCMJ.
Background
The appellant’s court-martial was convened pursuant to
General Court-Martial Convening Order (GCMCO) 1-09, dated 15 May
2009, which was promulgated by Colonel A. Ardovino, USMC, who at
that time was serving as Commander, 1st Marine Logistics Group
(MLG). The appellant’s charges were referred to GCMCO 1-09 on
24 January 2013 by Colonel R.G. Lawson, USMC, who signed the
referral block as Commander, 1st MLG.
At arraignment, trial counsel stated that Colonel Lawson
specifically adopted GCMCO 1-09 as the successor in command. 1
Trial defense counsel raised no objection to either Colonel
Lawson’s adoption of GCMCO 1-09 or the jurisdiction of the
court-martial.
Analysis
Whether a court-martial was properly convened is a question
of law we review de novo. United States v. Harmon, 63 M.J. 98,
101 (C.A.A.F. 2006). Jurisdiction of a court-martial “depends
upon a properly convened court, composed of qualified members
chosen by a proper convening authority, and with charges
properly referred.” United States v. Adams, 66 M.J. 255, 258
(C.A.A.F. 2008) (citing Art. 25, UCMJ and RULES FOR COURTS-MARTIAL
201(b) and 503-505, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005
ed.)). “[I]f there is a fundamental defect in th[e] [convening]
order, the very document itself is negated and no court exists.”
1
Record at 2.
2
United States v. Ryan, 5 M.J. 97, 101 (C.M.A. 1978) (finding
reversible error where CA did not personally designate panel
members listed on convening order).
When referring charges to a court-martial convened by a
predecessor, a successor in command is not required to
explicitly state that he or she “adopts” the panel to comply
with Article 25(d)(2), UCMJ. United States v. Brewick, 47 M.J.
730, 733 (N.M.Ct.Crim.App. 1997); United States v. Gilchrist, 61
M.J. 785, 788 (Army Ct.Crim.App. 2005). Absent evidence to the
contrary, this court presumes from the act of referral that a
successor in command adopts his or her predecessor’s panel
member selections. Brewick, 47 M.J. at 733. Moreover, here the
trial counsel specifically stated on the record at arraignment
that Colonel Lawson, the commander referring the subject
charges, specifically adopted GCMCO 1-09, convened by his
predecessor in command, Colonel Ardovino. Record at 2. In the
absence of evidence to the contrary, we presume that the
“‘averments of jurisdiction’, included in the record without
objection, are adequate to establish the proper constitution and
jurisdiction of the court.” United States v. Vargas, 47 M.J.
552, 554 (N.M.Ct.Crim.App. 1997) (quoting Runkle v. United
States, 122 U.S. 543, 546 (1887)).
Here, the appellant offers no evidence to suggest that
Colonel Lawson’s adoption of GCMCO 1-09, as represented on the
record by the trial counsel, was improper. 2 Instead, he argues
that “the record fails to establish that Colonel Lawson
considered the characteristics of each member of [GCMCO 1-09]
before adopting the order. . . . [therefore] Appellant’s court-
martial was improperly formed and consequently lacks
jurisdiction . . . .” Appellant’s Brief of 1 Jul 2013 at 3. As
we stated in Vargas, we are aware of no authority requiring a
successor in command to specifically re-select each member when
adopting a panel properly convened by a predecessor in command.
Vargas, 47 M.J. at 554, n.4.
We conclude that the approved findings and sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant was committed. Arts.
2
To the contrary, at arraignment trial defense counsel specifically disavowed
any concerns with the referral of charges. Record at 10.
3
59(a) and 66(c), UCMJ. The findings and sentence as approved by
the CA are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
4