Recent developments in sentencing: a sentencing potpourri from pretrial agreement terms affecting sentencing to sentence rehearings
Introduction
“Gentlemen, Chicolini here may talk like an idiot, and look like an idiot, but don’t let that fool you. He really is an idiot. I implore you, send him back to his father and brothers who are waiting for him with open arms in the penitentiary. I suggest that we give him ten years in Levenworth or eleven years in Twelveworth.” (1)
How does the government get “Chicolini … ten years in Levenworth or eleven years in Twelveworth?” (2) Conversely, what can or should the defense do to ensure that Chicolini’s new mailing address does not end in “worth”? This article, a potpourri of sentencing cases, highlights those cases, including cases applying waiver, that military justice practitioners should be aware of to successfully represent either the United States government or those service members on the front lines defending the United States. Divided into eleven sub-parts, this article addresses the following areas: pretrial agreement terms affecting sentencing; personnel records; summary courts-martial convictions; aggravation evidence; rehabilitative potential evidence; the unsworn statement; the case in rebuttal; instructions; argument; sentence credit; and sentence rehearings.
Pretrial Agreement Terms Affecting Sentencing–Rule for Courts-Martial (RCM) 705 (3)
Rule for Courts-Martial 705(c) (4) governs the terms and conditions of a pretrial agreement. (5) For sentencing purposes, counsel need to focus on RCM 705(c)(1)(B) which prohibits a term of a pretrial agreement which deprives an accused of “the right to complete sentencing proceedings.” (6) United States v. Libecap, (7) United States v. Edwards, (8) and most recently, United States v. Sunzeri (9) are three cases addressing RCM 705 (c)(1)(B).
In United States v. Libecap (10) the appellant entered into a pretrial agreement in which he agreed to request a bad conduct discharge. (11) On appeal, the appellant argued he was entitled to a sentence rehearing because the term requiring him to request a punitive discharge was both prohibited by RCM 705 and contrary to public policy. (12) The Coast Guard court agreed, finding the term violated RCM 705(c)(1)(B) because “as a practical matter, it deprived the accused of a complete sentencing proceeding.” (13) The court found, in effect, that any effort by the accused to avoid a punitive discharge through the presentation of evidence on sentencing would be negated by his specific request for such a discharge. (14) Applying the same reasoning, the court also found the term was contrary to public policy. (15)
In United States v. Edwards, (16) the Court of Appeals for the Armed Forces (CAAF) confronted the same issue that was before the Libecap (17) court: whether RCM 705 or public policy prohibited a term of a pretrial agreement. After charges were preferred, the appellant’s area defense counsel (ADC) contacted the Air Force Office of Special Investigations (AFOSI) to advise them of his representation of the appellant and to further inform them that all requests to question the appellant should go through him. Despite acknowledging the representation, the AFOSI nonetheless contacted the appellant directly, interrogating him without notifying the ADC. (18) As part of the pretrial agreement, the appellant agreed not to mention the AFOSI interview or any rights violations associated therewith. (19)
On appeal, the appellant argued that the AFOSI-interrogation term of his pretrial agreement violated public policy. (20) The service court disagreed. (21) In affirming the lower court’s decision, the CAAF found the term was neither contrary to public policy nor prohibited by RCM 705. (22) The court focused on whether the term deprived the appellant of a “complete sentencing proceeding”–specifically, whether the term limited the accused’s right to present matters in extenuation, mitigation, or rebuttal. Noting the right to make an unsworn statement is “not unlimited,” the court looked to the text of RCM 1001 (c)(2)(A) which allows an accused, in his unsworn statement, to present matters in extenuation, mitigation, or rebuttal. (23) After examining the rule and the pretrial agreement term at issue, the court found that the alleged unconstitutional interrogation, even if unjustified or inexcusable, did not “serve to ‘explain the circumstances’ of the offense [extenuation], tend to ‘lessen the punishment to be adjudged [mitigation],’ or rebut anything presented by the prosecution [rebuttal].” (24) The term, thus, did not deprive the appellant of a complete sentencing proceeding.
The last case in this area is United States v. Sunzeri. (25) In Sunzeri, (26) the appellant, as part of his pretrial agreement, offered the following term (paragraph 18f of the agreement):
That, as consideration for this agreement, the
government and I agree not to call any off
island witnesses for presentencing, either
live or telephonically. Furthermore, substitutes
for off island witness testimony, including
but not limited to, Article 32 testimony,
affidavits, or letters will not be permitted or
considered when formulating an appropriate
sentence in this case. (27)