Betonie v. Sizemore
| Decision Date | 05 July 1974 |
| Docket Number | No. 73-3015.,73-3015. |
| Citation | 496 F.2d 1001 |
| Parties | John BETONIE, USN, Petitioner-Appellee, v. Captain W. G. SIZEMORE, USN, Commanding Officer, Naval Station, Jacksonville, Florida, et al., Respondents-Appellants. Christopher P. TIMMONS, USN, Petitioner-Appellee, v. Captain CARRIER, USN, Commanding Officer, NATTC, Jacksonville, Florida, Respondent-Appellant. Phillip J. de LA TOVA, USN, Petitioner-Appellee, v. Captain CARRIER, USN, Commanding Officer, Naval Air Technical Training Center, Jacksonville, Florida, Respondent-Appellant. Dennis Michael LYNCH, TM3, USN, Petitioner-Appellee, v. W. G. SIZEMORE, Captain, USN, Commanding Officer, Naval Air Station, Jacksonville, et al., Respondents-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Robert S. Yerkes, Asst. U. S. Atty., John L. Briggs, U. S. Atty., Jacksonville, Fla., Lieutenant Ralph B. Levy, JAGC, USNR Staff, Commander Fleet Air, Jacksonville, Fla., for respondents-appellants.
Kathryn L. Powers, Jacksonville, Fla. (Court-appointed), in forma pauperis as to petitioners-appellees only.
Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
The main question presented in these cases is whether the Sixth Amendment's guarantee of assistance of counsel protects enlisted military personnel brought before summary courts-martial in cases which may result in imprisonment. We hold that it does, and affirm the judgment of the district court granting writs of habeas corpus to the four petitioners.
Certain facts are common to all four cases. All petitioners are enlisted men in the United States Navy who were referred to summary courts-martial in the fall of 1972. All four consented to being tried by summary courts, and were found guilty and sentenced to terms of imprisonment at hard labor. The sentences were approved on review by the respective convening and supervisory authorities. None of the petitioners claims that the proper procedures of the Uniform Code of Military Justice (UCMJ) were not complied with in these cases. See, 10 U.S.C. § 801 et seq.
John Betonie was found guilty of the offense of unauthorized absence after a plea of guilty, and was sentenced to 25 days confinement at hard labor. Phillip J. de La Tova entered a plea of not guilty to a charge of possession of marihuana, but was found guilty and sentenced to 10 days confinement at hard labor. Christopher P. Timmons plead not guilty to two specifications of one charge of possession of marihuana. He was found not guilty of one specification and guilty of the other, and was sentenced to 10 days confinement at hard labor. Dennis Michael Lynch entered a plea of guilty to a charge of unauthorized absence and was sentenced to 25 days confinement at hard labor.
Each of the four men filed a petition for a writ of habeas corpus in the District Court for the Middle District of Florida before the end of his term of confinement, and the court granted all four petitions. In its order granting the petitions, the court made the following rulings:
The court based its ruling on Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S. Ct. 2006, 2012, 32 L.Ed.2d 530 (1972), which held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial footnote omitted."
The court ordered respondents either to retry petitioners under its guidelines, or to expunge petitioners' military records of the court-martial convictions, and in addition, to implement the guidelines of the opinion within 30 days of the date of the order. Respondents have reported to the court that they have complied with its order by expunging the records of the convictions and now conduct summary courts-martial in compliance with the order.
It will not be necessary for the purposes of this opinion to describe in detail the sometimes exceedingly complex intricacies of the UCMJ, but a simplified outline of the procedures will facilitate understanding of the issues involved. Military courts-martial have jurisdiction only over offenses made punishable by the UCMJ committed by members of a regular component of the armed forces (and certain others with intimate connections with the armed forces) when those offenses are "service connected." 10 U.S.C. § 802, O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).
There are three types of court-martial. A general court-martial may try any person subject to the Code for any offense made punishable by it, and may impose any penalty not proscribed by the Code, including the death penalty. 10 U.S.C. § 818. A special court-martial may try any person subject to the Code for any non-capital offense made punishable by the Code, and may prescribe any punishment not forbidden by the Code except "death, dishonorable discharge, dismissal, confinement for more than six months, hard labor without confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than six months." 10 U.S.C. § 819. A summary court-martial consisting of one commissioned officer has jurisdiction over non-capital offenses committed by those subject to the Code, except officers, cadets, aviation cadets, and midshipmen. The maximum possible punishments in a summary court-martial are confinement for up to one month, hard labor without confinement for up to 45 days, restriction to specified limits for up to two months, or forfeiture of up to two thirds of one month's pay. 10 U.S.C. § 820. In Article 15, 10 U.S.C. § 815, the Code authorizes a commanding officer to impose non-judicial punishment for "minor offenses" committed by members of his command. The punishments authorized by Article 15 are even more limited than those authorized for summary courts-martial. 10 U.S.C. § 815.
At one end of the spectrum, the general court-martial embodies most of the attributes of a civilian criminal trial, although many commentators have criticized the differences that do exist. At the other end of the spectrum, the summary court consists merely of one officer who is authorized, even duty-bound, to protect both the prosecution and the defense, as well as acting as the judge and jury. There is, in effect, a trade-off between the severity of the sentence which may be imposed and the informality and speed permitted in the proceedings.
In light of this trade-off, it is important to note that no person may be subjected to either non-judicial punishment or summary court-martial unless he or she consents thereto. A person threatened with non-judicial punishment may request instead a summary court-martial, and a person threatened with a summary court-martial, even by reason of having refused Article 15 punishment, may demand instead a special court-martial. 10 U.S.C. §§ 815(a), 820. By doing so, that person both gains the advantage of increased regularity of proceedings and procedural protection, and incurs the disadvantage of being subjected to greater potential maximum punishments.
One of the most important procedural variations among the different types of courts-martial is the presence or absence of counsel to represent the defendant. The UCMJ provides that the convening authority shall detail both trial counsel (i. e., a prosecutor) and defense counsel in all special and general courts-martial. 10 U.S.C. § 827(a). However, the Code makes no mention of counsel in summary courts-martial or Article 15 proceedings, and it is clear that the Code does not require such counsel. The common practice has been not to allow the attendance of counsel at summary court proceedings and that practice was followed in these cases, even though at least two of the petitioners here specifically requested such counsel.
The first question, as always, is : Did the district court have jurisdiction conferred by a statute to issue the writs? Ex parte Bollman, 8 U.S. (4 Cranch) 75, 2 L.Ed. 554 (1807). The answer is that the court did have jurisdiction under the general habeas corpus statute, 28 U.S.C. § 2241. The petitioners are questioning the validity of the judgments which led to their confinement, alleging that the military proceedings leading to their sentences were fatally defective because they were deprived of the basic constitutional guarantee of assistance...
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