Betonie v. Sizemore, 72-712-Civ-J-S
| Decision Date | 09 May 1973 |
| Docket Number | 72-829-Civ-J-S and 72-870-Civ-J-S.,No. 72-712-Civ-J-S,72-828-Civ-J-S,72-712-Civ-J-S |
| Citation | 369 F. Supp. 340 |
| Parties | John BETONIE, USN, Petitioner, v. Capt. W. G. SIZEMORE, USN, Commanding Officer, Naval Air Station, Jacksonville, Florida, et al., Respondents. Christopher P. TIMMONS, USN, Petitioner, v. Captain CARRIER, USN, Commanding Officer, NATTC, Jacksonville, Florida, Respondent. Phillip J. de LA TOVA, USN, Petitioner, v. Captain CARRIER, USN, Commanding Officer, Naval Air Technical Training Center, Jacksonville, Florida, Respondent. Dennis Michael LYNCH, TM3, USN, Petitioner, v. W. G. SIZEMORE, Captain, USN, Commanding Officer, Naval Air Station, Jacksonville, and J. S. Brunson, Captain, USN, Commanding Officer, USS Yosemite (AD19), Respondents. |
| Court | U.S. District Court — Middle District of Florida |
COPYRIGHT MATERIAL OMITTED
Kathryn L. Powers, Mahoney, Hadlow, Chambers & Adams, Jacksonville, Fla., for plaintiff.
Harvey E. Schlesinger, Robert S. Yerkes, Asst. U. S. Attys., Lt. Ralph B. Levy, JAGC, USNR, Jacksonville, Fla., for defendant.
The issue presented in this case is whether the Supreme Court decision of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), applies to summary courts-martial proceedings under 10 U.S.C. § 820. The holding in that case is 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." 407 U.S. at 37, 92 S.Ct. at 2012, 32 L.Ed.2d at 538. This Court knows of only one other case which has decided this particular issue since Argersinger: Daigle v. Warner, 348 F.Supp. 1074 (1972), decided by the District Court of Hawaii. That case held that Argersinger does apply to summary courts-martial proceedings and this Court is inclined to the same view.
Petitioners, John Betonie, Christopher P. Timmons, Phillip J. de La Tova and Dennis Michael Lynch, enlisted persons in the United States Navy, filed with this Court petitions for writ of habeas corpus pursuant to 28 U.S.C. §§ 2241(c)(1) and 2241(c)(3). The petitioners alleged that they were being confined unlawfully, in that they were tried and convicted to a period of confinement pursuant to summary court martial at which they were denied assistance of counsel. On January 24, 1973, an evidentiary hearing was held on these petitions for writ of habeas corpus at which hearing both the petitioners and the respondents adduced evidence and presented legal arguments.1
On October 31, 1972, petitioner de La Tova was referred to trial by summary court-martial at the Naval Air Technical Training Center, Naval Air Station, Jacksonville, Florida. Petitioner was charged under the Uniform Code of Military Justice with possession of marijuana. Prior to the summary court-martial, the petitioner had requested that a military lawyer represent him. Petitioner was advised that a military lawyer would not be appointed to represent him but that he could retain, at his own expense, a private lawyer to represent him. Petitioner was also informed that he had the right to object to trial by summary court-martial and, if he did so object, the case could be referred to a special court-martial. The petitioner was further informed that a military lawyer would be appointed to represent him in a special court-martial but that a special court-martial carries more severe maximum penalties than a summary court-martial. The petitioner consented, in writing, to trial by summary court-martial but submitted to the summary court-martial officer a signed document stating that by so consenting he in no way waived his right to counsel, which document was received into evidence. On several occasions prior to the summary court-martial, petitioner had conferred with a member of the Judge Advocate General's Corps, United States Naval Reserve. Petitioner was found guilty by a summary court-martial on October 31, 1972, of possession of marijuana and sentenced to confinement for a period of ten days. The findings and sentence were approved by the convening and supervisory authorities.
Petitioner Dennis M. Lynch was referred to trial by summary court-martial at the Naval Station, Mayport, Florida, on a single charge of unauthorized absence for a period of about 24 days. The summary court-martial was held on November 6, 1972. Prior to the court-martial petitioner was advised that he had no right to appointed military counsel at a summary court-martial and that if he wanted a lawyer appointed to represent him he would have to refuse summary court-martial and then, if his case were referred to a special court-martial, counsel would be appointed to represent him. Petitioner was further advised of the differing maximum punishments at summary and special courts-martial. Petitioner requested appointed counsel and his request was denied by the summary court officer. He then consented in writing to trial by summary court-martial. Without a lawyer representing him, petitioner was arraigned and pled guilty to the charge of unauthorized absence. The summary court-martial officer accepted the plea after questioning the petitioner to insure the existence of a factual foundation to justify a conclusion that the plea was provident. A finding of guilty was then announced and petitioner was sentenced to confinement for a period of 25 days. The findings and sentence were approved by the convening and supervisory authorities. At the time of his trial petitioner who lived in government quarters was 19 years of age. He was of the pay grade E-4 earning on a gross basis basic pay and sea pay totaling $359.80 per month.
Petitioner Christopher P. Timmons was referred to trial by summary court-martial at the Naval Air Technical Training Center, Naval Air Station, Jacksonville, Florida, under one charge and two specifications under the Uniform Code of Military Justice for possession of marijuana. Prior to the summary court-martial, the petitioner was advised that a military lawyer would not be appointed to represent him in a summary court-martial but that he could refuse the summary court-martial and his case could be referred to a special court-martial wherein a military lawyer would be appointed to represent him. The petitioner was also informed that more severe penalties could be imposed pursuant to a special court-martial as opposed to a summary court-martial. The petitioner consented to the summary court-martial, pled not guilty, but was found guilty by the summary court-martial officer and sentenced to ten days confinement and $100.00 fine.
Petitioner Timmons testified that on the night he was apprehended he and a friend were drinking orange juice and eating potato chips by his car at a trailer park across the street from the Naval Air Station. The security police approached and searched the car, finding a marijuana cigarette on the hood of the petitioner's car, a pipe in the glove compartment of the car and a lid containing some marijuana in the grass; a total of 10.5 grams was discovered. At the evidentiary hearing, petitioner Timmons testified that he did not consent to the search of the car although this issue had not been raised at the summary court-martial. The respondents introduced the record of the summary court-martial proceedings wherein the security officer conducting the search testified that prior to the search he had obtained the verbal permission from the petitioner to search the car. Petitioner did raise at his summary court-martial the issue as to the federal government's jurisdiction over the situs of the alleged crime, which issue was decided in favor of the government by the summary court-martial officer. The petitioner had consulted with a military lawyer prior to his summary court-martial. The findings and sentence were approved by the convening and supervisory authorities.
Petitioner John Betonie was referred on September 7, 1972, to trial by a summary court-martial on a charge under the Uniform Code of Military Justice of unauthorized absence. The court-martial officer, Lieutenant David Gay (a member of the Judge Advocate's Corps and admitted to practice law in the Commonwealth of Massachusetts), testified at the evidentiary hearing that the petitioner was informed that he was not entitled to have a military lawyer appointed to represent him in a summary court-martial, that he could object to the summary court-martial and that, if he did so object, his case could be referred to a special court-martial wherein a military lawyer would be appointed to represent him. The petitioner was further advised of the differing maximum punishments in a special and summary court-martial. The petitioner consented to the summary court-martial, pled guilty and was sentenced to 25 days in confinement.
At the evidentiary hearing, petitioner Betonie testified that he had obtained leave in May 1972 to visit his home because of some family problems, that he departed Jacksonville on a Friday and was scheduled to return to the Naval Air Station on the following Tuesday. However, on his way home, he lost his return airplane ticket in Albuquerque, New Mexico. Not having the money to purchase another ticket, petitioner worked for a while on the Indian Reservation where his family lives and finally obtained assistance from the Red Cross to return to the base. Petitioner never thought to call his superiors and inform them of what had happened. As this Court noted at the evidentiary hearing, petitioner Betonie did not appear to have the intelligence of persons his age.
At the evidentiary hearing, Captain Thadeus T. Coleman, United States Navy, and Captain Charles E. Waite testified as to the important role of the summary court-martial in providing efficient and swift discipline in the Navy, as well as positive rehabilitation for the sailor involved.
To continue reading
Request your trial