United States v. Turner

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
R.Q. WARD, J.A. FISCHER, S.A. DOMINGUEZ
Appellate Military Judges
UNITED STATES OF AMERICA
v.
LINDELL M. TURNER
CULINARY SPECIALIST SECOND CLASS (E -5), U.S. NAVY
NMCCA 201400036
SPECIAL COURT-MARTIAL
Sentence Adjudged: 30 September 2013.
Military Judge: CAPT Robert Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Jacksonville, FL.
Staff Judge Advocate's Recommendation: LCDR N.O. Evans,
JAGC, USN.
For Appellant: CDR Boyce Crocker, JAGC, USN.
For Appellee: Maj Paul M. Ervasti, USMC; Capt Matthew
Harris, USMC.
22 July 2014
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OPINION OF THE COURT
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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 special court-martial
convicted the appellant, pursuant to his pleas, of one
specification of violating a lawful general order, in violation
of Article 92, Uniform Code of Military Justice, 10 U.S.C. §
892, two specifications of use and possession of cocaine,
respectively, in violation of Article 112a, Uniform Code of
Military Justice, 10 U.S.C. § 912a, and one specification of
aggravated assault, in violation of Article 128, Uniform Code of
Military Justice, 10 U.S.C. § 928.
The military judge sentenced the appellant to be confined
for nine months, to forfeit $500.00 pay per month for a period
of four months, to be reduced to the pay grade of E-2, and to
receive a bad-conduct discharge. The convening authority
approved the sentence as adjudged but, pursuant to the terms of
the pretrial agreement, suspended execution of confinement in
excess of eight months.
We have examined the record of trial, the appellant’s sole
assignment of error alleging that the military judge erred by
failing to inquire into the legality of his pretrial confinement
of 154 days, and the Government’s response. We conclude that
the findings and sentence are correct in law and fact and that
no error was committed that was materially prejudicial to the
substantial rights of the appellant. Arts. 59(a) and 66(c),
UCMJ.
Discussion
After charges against an accused have been referred to
court-martial, the military judge “shall review the propriety of
pretrial confinement upon motion for appropriate relief. RULE FOR
COURTS-MARTIAL 305(j), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.)
(emphasis added). R.C.M. 905(b) authorizes raising any defense,
objection, or request which is capable of determination without
the trial of the general issue of guilt before trial.
Subsection (e) of that rule provides that failure to raise
motions under subsection (b) “shall constitute waiver” and other
motions, except lack of jurisdiction or failure of a charge to
allege an offense, “must be raised before the court-martial is
adjourned for that case and, unless otherwise provided in this
Manual, failure to do so shall constitute waiver.”
Prior to receiving evidence at the sentencing stage, the
military judge acknowledged that the appellant had been
subjected to 154 days of pretrial confinement. Record at 75.
The military judge then asked “[defense counsel] do you have any
motions requesting relief from unlawful pretrial punishment or
restraint?” To which counsel responded “[n]o, sir.” Id. at 76.
The critical question is whether the appellant waived
appellate review of the legality of his pretrial confinement.
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“[W]aiver is the ‘intentional relinquishment or abandonment of a
known right.’” United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009) (quoting United States v. Olano, 507 U.S. 725,
733 (1993)). When such a waiver of a known right occurs, it is
extinguished and may not be raised on appeal. Id. The
appellant’s direct response to the military judge’s question
affirmatively waived any right he may have had to question the
legality of his pretrial confinement before this court.
An unconditional guilty plea also waives all defects
except two: jurisdictional defects and deprivations of due
process. United States v. Schweitzer, 68 M.J. 133, 136
(C.A.A.F. 2009); see also United States v. Lee, 73 M.J. 166, 170
(C.A.A.F. 2014) (a guilty plea waives nonjurisdictional errors
unless the accused enters a conditional guilty plea pursuant to
R.C.M. 910(a)(2)). We note no jurisdictional defects in the
record, and the appellant raised none. There being no
jurisdictional defects, the appellant’s unconditional guilty
plea waives all defects except any due process deprivations. An
affirmative waiver of a pretrial motion for relief from illegal
pretrial confinement is not precluded by R.C.M. 705(c)(1)(B).
United States v. McFadyen, 51 M.J. 289, 291 (C.A.A.F. 1999). We
therefore find no due process violation. Since the appellant
raised no motion for relief regarding the legality of his
pretrial confinement, and entered unconditional guilty pleas per
the terms of his pretrial agreement, he has effectively waived
his right to raise that issue on appeal.
The findings and the sentence as approved by the convening
authority are affirmed.
For the Court
R.H. Troidl
Clerk of Court
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