IN THE CASE OF



                           UNITED STATES, Appellant

                                            v.

      Marlon D. HUTCHISON, Machinery Technician Second Class
                    U.S. Coast Guard, Appellee

                                     No. 02-5001
                               Crim. App. No. 1090

             United States Court of Appeals for the Armed Forces

                                  Argued May 1, 2002

                               Decided August 30, 2002




                                        Counsel

For Appellant: Lieutenant Sandra J. Miracle (argued and on brief).



For Appellee: Commander Jeffrey C. Good (argued and on brief).




Military Judge:   Robert Bruce




         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Hutchison, No. 02-5001/CG


PER CURIAM:


    A general court-martial composed of a military judge sitting

alone convicted appellee, contrary to his pleas, of rape,

forcible sodomy of a minor, adultery, and indecent acts upon a

minor, in violation of Articles 120, 125, and 134, Uniform Code

of Military Justice (UCMJ), 10 USC §§ 920, 925, and 934,

respectively.   He was sentenced to a bad-conduct discharge,

confinement for 28 months, and reduction to the lowest enlisted

grade.   The convening authority approved the sentence as

adjudged.

    A panel of the Court of Criminal Appeals affirmed the

findings.   However, the court affirmed only that part of the

sentence extending to confinement for 28 months pursuant to its

statutory responsibility to review the sentence under Article

66(c), UCMJ, 10 USC § 866(c).    

(C.G.Ct.Crim.App.

2001).   The full Court of Criminal Appeals, upon motion by the

Government for reconsideration en banc, approved the panel

decision.   

(2001).   The General Counsel of the

Department of Transportation certified to our Court four issues

related to the action on the sentence by the Court of Criminal




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United States v. Hutchison, No. 02-5001/CG


Appeals.1      For the reasons set forth below, we remand the case to

the Court of Criminal Appeals for clarification.



                                 I. BACKGROUND

        In January 1997, appellee telephoned civilian police

authorities in South Carolina to report that he had committed an

act of sexual abuse on his 12-year-old stepdaughter at their

off-base residence.        He cooperated in the ensuing civilian

investigation.       Military charges were preferred on February 21,

and he was indicted on state charges by civilian authorities on

April 17.

        On April 28, the convening authority referred the military

charges to trial by general court-martial.                Because civilian

charges were pending in South Carolina, the convening authority


1
    The General Counsel certified the following issues:

        I. DID THE COAST GUARD COURT OF CRIMINAL APPEALS ERR WHEN IT
        CONSIDERED MATTERS CONCERNING A STATE COURT'S CONVICTION AND SENTENCE -
        - IMPOSED AFTER A COURT-MARTIAL FOR THE SAME OFFENSES -- AS PART OF THE
        "RECORD" DURING ITS ARTICLE 66(c), UCMJ, SENTENCE APPROPRIATENESS
        DETERMINATION?

        II. DID THE CGCCA ERR WHEN IT DISAPPROVED APPELLANT'S BAD-CONDUCT
        DISCHARGE AND REDUCTION IN PAYGRADE IN AN EFFORT TO "LESSEN" THE
        "EFFECT" OF A STATE COURT'S CONVICTION AND SENTENCE THAT WAS IMPOSED
        AFTER A COURT-MARTIAL FOR THE SAME OFFENSES?

        III. DID THE CGCCA ERR WHEN, DURING ITS SENTENCE APPROPRIATENESS
        DERTERMINATION, IT CONSIDERED ALTERNATIVE ADMINISTRATIVE ACTIONS IN
        LIEU OF TRIAL BY COURT-MARTIAL THAT WERE AVAILABLE TO THE CONVENING
        AUTHORITY?

        IV. DID THE CGCCA ERR WHEN IT REASSESSED A SENTENCE BECAUSE IT
        QUESTIONED THE COAST GUARD'S DECISION TO COURT-MARTIAL A SERVICEMEMBER
        WHILE A STATE TRIAL WAS PENDING FOR THE SAME ACTS, DESPITE FINDING THAT
        THE COAST GUARD FOLLOWED SERVICE REGULATIONS?


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United States v. Hutchison, No. 02-5001/CG


was required by Coast Guard regulations to obtain authorization

from the Commandant of the Coast Guard for the court-martial.

See para. B-4-a, ch. 2, Military Justice Manual, COMDTINST

M5810.1C (Change 4, 14 Feb 1997).         The convening authority

sought such authorization on May 27, which was granted on May

28.   During appellee's court-martial, which began on July 9 and

concluded on July 15, 1997, neither party brought to the

attention of the court any matter concerning appellee's pending

civilian trial in state court.

      On September 11, prior to the convening authority’s action

on appellee’s military trial, appellee appeared in state court

and entered a guilty plea to committing a lewd act upon a child.

He was sentenced to five years' confinement, which was suspended

with two years' probation.       The probation was tolled until

appellee was released from military custody.

      On December 3, appellee's individual military defense

counsel filed a request for clemency with the convening

authority pursuant to RCM 1105, Manual for Courts-Martial,

United States (2000 ed.),2 including a request to disapprove the

punitive discharge and suspend the balance of confinement,

emphasizing appellee’s acceptance of responsibility and his

potential for rehabilitation.        In the memorandum supporting the



2
  RCM 1105(b) was amended after appellant’s court-martial, on May 27, 1998, by
Executive Order Number 13086.


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United States v. Hutchison, No. 02-5001/CG


requested reduction in sentence, which was not approved by the

convening authority, defense counsel contended that the goals of

sentencing would be met by the other aspects of appellee’s

military sentence.    In addition, defense counsel included

information concerning the civilian proceedings and sentence to

underscore appellee’s acceptance of responsibility and his

potential for rehabilitation, contending that the goals of

military sentencing would be met through the monitoring and

supervision imposed by state authorities under his state

sentence.

       Among the issues raised before the Court of Criminal

Appeals, appellee contended that the dual proceedings before

military and state courts constituted a double-jeopardy

violation.    See U.S. Const. amend. V; Art. 44, UCMJ, 10 USC §

844.    In addition, he contended that the convening authority had

not obtained an appropriate authorization under Coast Guard

regulations for a military trial while state civilian

proceedings were pending.    The court rejected both legal

, 581.   The court determined, however,

that it was appropriate to take into account appellee’s civilian

sentence in exercising its broad authority under Article 

, to determine what sentence should be approved.     After

considering appellee’s potential for rehabilitation, including

the impact of appellee’s civilian sentence, the court approved


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United States v. Hutchison, No. 02-5001/CG


the confinement served and disapproved the punitive discharge

and reduction in 

.



                           II.   DISCUSSION

     The initial responsibility for approval of the sentence is

vested in the convening authority.      See Art. 60(c), UCMJ, 10 USC

§ 860(c).    The accused may submit for the convening authority’s

consideration anything "that may reasonably tend to affect the

convening authority's decision whether to . . . approve the

sentence."   RCM 1105(b)(1), 

; see Art. 60(b)(1).

The submission may include "[m]atters in mitigation which were

not available for consideration at the court-martial," see RCM

1105(b)(2)(C), as well as certain matters that could have been

raised by the accused at trial but which the accused chose not

to raise, such as a prior nonjudicial punishment under Article

15, UCMJ, 10 USC § 815, for the same misconduct.      See United

States v. Gammons, 

, 183 (1999).

     During subsequent review of the sentence approved by the

convening authority, the Court of Criminal Appeals must review

“the entire record.”   Art. 66(c).     Based upon that review, the

court then must determine whether the sentence approved by the

convening authority “should be approved” or whether the court

should approve only a “part or amount of the sentence.”      

of the power granted to the Courts of Criminal


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United States v. Hutchison, No. 02-5001/CG


Appeals to review a case for sentence appropriateness is one of

the unique and longstanding features of the Uniform Code of

Military Justice.   See, e.g., United States v. Boone, 

,

192 (1998); United States v. Lanford, 6 USCMA 371, 378-39, 20

CMR 87, 94-95 (1955).    As we noted in United States v. Lacy, 

, 287-88 (1999):

               Congress . . . has provided the Courts
          of Criminal Appeals not only with the power
          to determine whether a sentence is correct
          in law and fact, but also with the highly
          discretionary power to determine whether a
          sentence "should be approved." Art. 66(c),
          UCMJ, 10 USC § 866(c). The power to
          determine whether a sentence should be
          approved has no direct parallel in the
          federal civilian sector, which relies on
          sentencing guidelines.


     The “power to review a case for sentence appropriateness . . .

includes but is not limited to consideration of uniformity and

evenhandedness of sentencing decisions," which may include

consideration of a sentence imposed by a civilian court in a closely

related case.   United States v. Sothen, 

, 296-97 (2001).

The power to review the entire record for sentence appropriateness

includes the power to consider the allied papers, as well as the

record of trial proceedings.   See United States v. Healy, 

,

395 (CMA 1988); see also 

(discussing limitations

applicable to supplementation of the record during review under

Article 66(c)).   In reviewing the exercise of Article 66(c)



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United States v. Hutchison, No. 02-5001/CG


sentencing powers, the role of our Court “is to determine, as a

matter of law, whether a Court of Criminal Appeals abused its

discretion or caused a miscarriage of justice in carrying out its

highly discretionary sentence appropriateness role."   United States

v. Wacha, 

, 268 (2001)(citation and internal quotations

omitted).

     In the present case, the Court of Criminal Appeals was

statutorily required to review the entire record to determine

whether the sentence, as approved by the convening authority,

should be approved on appeal.   The statute authorized the Court

of Criminal Appeals to consider matters submitted to the

convening authority that were contained within the record, such

as the material concerning the parallel civilian proceedings.

The court could consider this information, which appellee had

brought to the attention of the convening authority on the issue

of punishment and rehabilitative potential, on the issue of

sentence appropriateness.   The judges of the court also could

bring to bear their wisdom, experience, and expertise during the

court’s consideration of sentence appropriateness.   See United

States v. Ballard, 

, 286 (CMA 1985).   In so doing, they

could consider the potential impact of administrative and

nonjudicial means of disposition under service regulations,

customs, and policies.   See United States v. Kelly, 

,

574 (NMCMR 1994)(consideration of nonjudicial disposition of co-


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United States v. Hutchison, No. 02-5001/CG


actor’s case as a basis for sentence reduction under Article

66(c)).

     The issue before our Court is not whether we would have

reached the same result, but whether the Court of Criminal

Appeals abused its discretion in doing so.    In the present case,

the lower court discussed a wide variety of subjects in a manner

that raises the possibility that the court acted because it

viewed the state court proceedings as inappropriate and sought

to lessen the punishment from those proceedings.    Under Article

66(c), however, although the court may take into account factors

in the record such as the conviction and punishment by state

authorities for the same act, it is limited to considering

whether the military sentence is inappropriate.    Accordingly, we

remand the case to the court below for a de novo review of

appellant’s military sentence under Article 66(c).



                         III.    DECISION

     The decision of the United States Coast Guard Court of

Criminal Appeals is set aside.    The record of trial is returned

to the General Counsel of the Department of Transportation for

remand to the Court of Criminal Appeals for further proceedings

consistent with this opinion.    Thereafter, the record of trial

shall be returned directly to this Court.




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United States v. Hutchison, No. 02-5001/CG


     CRAWFORD, Chief Judge (concurring):

     The majority opinion does not preclude the consideration of

uncontested documents that relate to the state court conviction

and any confinement resulting therefrom.   Furthermore, it may be

appropriate to order a hearing (United States v. DuBay, 17 USCMA

147, 37 CMR 411 (1967)) to ascertain facts, to include the

temporal relationship between the court-martial and state

prosecution, the reasons for the state prosecution, and the

reason for appellant’s incarceration by the State of South

Carolina, which are not contained within the record of trial and

may be necessary for final disposition.
United States v. Hutchinson, No. 02-5001/CG


    SULLIVAN, Senior Judge (concurring):


    The remand of this case to the Coast Guard Court of Criminal

Appeals makes clear that a Court of Criminal Appeals does not

have “carte blanche” authority to do justice, as stated in United

States v. Claxton, 

, 162 (CMA 1991).   It is a court of

law, and it is subject to the restraints of the law, even in the

exercise of its unique sentence approval powers.   

(Sullivan, C.J., concurring in part and in the result).   In my

view, if the Court of Criminal Appeals used its sentence approval

power to send a message to the state court that its proceedings

were inappropriate, such action would be an abuse of discretion.

See United States v. Tardif, No. 01-0520, __ MJ __,

__(2002)(Sullivan, S.J., dissenting) (use of Court of Criminal

Appeals sentence approval powers to send message to military

authorities that post-trial delay is unacceptable is beyond

authority of Article 66(c), UCMJ).



    My own review of the Court of Criminal Appeals opinion in

this case, however, reveals no such intent on the part of that

court.   In my view, its sole purpose was to approve an

appropriate sentence for appellee in light of all the

circumstances in the record, including his subsequent conviction

and punishment in state court, which was noted during the post-

trial clemency process.   See United States v. Hutchinson, 

, 581 (C.G.Ct.Crim.App. 2001).    The Court of Criminal Appeals’
United States v. Hutchinson, No. 02-05001/CG

dicta expressing its concern with the state court conviction and

acknowledging its capacity to “lessen its effect” was just that,

dicta.   Id.; see United States v. Higbie, 12 USCMA 298, 300, 30

CMR 298, 200 (1961).   Nevertheless, I have no objection to this

case being remanded to the Court of Criminal Appeals to reassure

the majority on this point.




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