This opinion is subject to administrative correction before final disposition.
Before
KING, TANG, and J. STEPHENS,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Hunter C. TYNDALL
Sergeant (E-5), U.S. Marine Corps
Appellant
No. 201900096
Decided: 27 November 2019
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Commander Ryan Stormer, JAGC, USN. Sentence
adjudged 15 November 2018 by a general court-martial convened at
Naval Station Great Lakes, Illinois, consisting of a military judge
sitting alone. Sentence approved by the convening authority: reduction
to E-1, confinement for 27 months, 1 and a bad-conduct discharge.
For Appellant: Captain Kimberly D. Hinson, JAGC, USN.
For Appellee: Lieutenant Joshua C. Fiveson, JAGC, USN; Lieutenant
Kimberly Rios, JAGC, USN.
Senior Judge KING delivered the opinion of the Court, in which Sen-
ior Judge TANG and Judge J. STEPHENS joined.
1 The convening authority suspended confinement in excess of 24 months pursu-
ant to a pretrial agreement.
United States v. Tyndall, No. 201900096
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
KING, Senior Judge
Consistent with his pleas, Appellant was convicted of disobeying a superi-
or commissioned officer, stalking, aggravated assault, assault consummated
by a battery, and obstruction of justice, in violation of Articles 90, 120a, 128,
and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890,
920a, 928, and 934 (2012). Appellant now claims that he is entitled to pretrial
confinement credit and that the military judge erred by permitting the trial
counsel to read the victim impact statement to the court. We find merit in the
first issue and take action in our decretal paragraph.
I. BACKGROUND
Appellant and his wife, Seaman BT, enlisted in the Navy in 2017 and
were married in January of 2018. Shortly thereafter, Appellant was charged
with several crimes involving domestic violence against BT. His first round of
charges originated on 5 June 2018 when his wife petitioned the local county
court for an order of protection claiming he was stalking her and did the
following:
Date Allegation
22 February 2018: Grabbed her by the throat, cutting off her air
supply;
19 May 2018: Grabbed her by the hair and dragged her
down the stairs;
2 June 2018: Grabbed her by the throat and slammed her
against a vehicle;
3 June 2018: Followed her to a friend’s home and then
charged her vehicle yelling “I should . . . kill
you.”
Based upon these allegations and BT’s general fear that Appellant would
continue to endanger her life, a county judge issued both a restraining order
that required Appellant to avoid contact with BT as well as a warrant for his
arrest for “domestic battery.” Appellant was arrested on 6 June 2018 and
2
United States v. Tyndall, No. 201900096
released after posting bond on 8 June 2018. 2 A condition of his bond was that
he avoid contact with BT. He did not, choosing instead to contact BT at her
home two days later. On 12 June 2018, Appellant was arrested by local au-
thorities a second time for violating the order and the conditions of his bond
and remained in civilian pretrial confinement until 27 June 2018, when the
state dismissed charges. That day, Appellant was transferred to military
pretrial confinement and charged with crimes involving domestic battery,
including the 19 May 2018 assault. The parties reached a pretrial agreement
and, 141 days after entering military pretrial confinement, Appellant pleaded
guilty to these charges. At Appellant’s plea hearing, the military judge stated
that pretrial confinement credit was discussed at a RULE FOR COURTS-
MARTIAL (R.C.M.) 802, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016
ed.), meeting, but the record does not elaborate. The parties then had the
following colloquy:
MJ: Trial Counsel, what is your calculation for pretrial . . .
confinement credit?
TC: Sir, the government calculates 141 days.
MJ: Defense, do you concur?
DC: Yes, sir.
MJ: The court orders 141 days of credit for pretrial confine-
ment. 3
During the Government’s sentencing case, the trial counsel offered exhib-
its that set forth the dates and reasons Appellant was arrested and confined
by civilian authorities. The results of trial indicated Appellant was to be
credited with 141 days towards confinement and the convening authority
ordered that Appellant be credited that number of days.
Following the Government’s sentencing case, the trial counsel informed
the military judge that BT had asked that the trial counsel read to the court
her unsworn impact statement, offered pursuant to R.C.M. 1001A (2016). 4
After the defense counsel responded that he had no objection, the trial coun-
2 Appellant’s claim that he was arrested on 5 June 2018 is not supported by the
record.
3 Record at 126. These 141 days apparently did not include any days Appellant
served in civilian pretrial confinement.
4 R.C.M. 1001A (2016), has been incorporated into R.C.M. 1001(c) (2019).
3
United States v. Tyndall, No. 201900096
sel proceeded to read the impact statement, wherein BT discussed how Ap-
pellant abused her over the course of their relationship, the pain and betrayal
that that abuse caused her at the time, and the emotional and psychological
scars she deals with as a result. 5 After the statement was read, the Defense
objected to portions of the statements as “uncharged misconduct.” The mili-
tary judge sustained the defense objection and assured the parties that he
would not consider the information for those purposes. 6 Additional facts
necessary to the resolution of the issues are discussed infra.
II. DISCUSSION
Appellant now contends he is entitled to pretrial confinement credit for
the time he spent in civilian pretrial confinement. 7 We review this question
de novo. United States v. Atkinson, 74 M.J. 645, 647 (N-M. Ct. Crim. App.
2015) (citing United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005)); see also
United States v. Smith, 56 M.J. 290, 292 (C.A.A.F. 2002).
Credit towards a sentence to confinement is governed by Department of
Defense (DoD) Instruction 1325.07, Administration of Military Correctional
Facilities and Clemency and Parole Authority encl. 2, para. 3.b. (11 March
2013, Incorporating Change 3, 1 April 2018) [hereinafter DoDI 1325.07],
which states that “[s]entence computation shall be calculated [in accordance
with] DoD 1325.7-M,” the DoD Sentence Computation Manual. DoD 1325.7-
M (27 July 2004, Incorporating Change 3, 26 September 2018) requires that
prisoners receive “all sentence credit directed by the military judge,” and that
military judges “will direct credit for each day spent in pretrial confinement
. . . for crimes for which the prisoner was later convicted.” Id. at C2.4.2. But,
under the heading “SENTENCE COMPUTATION,” DoDI 1325.07 specifically
states:
Notwithstanding any other provision of this instruction or
[DoD 1325.07-M], if a prisoner (accused) is confined in a non-
military facility for a charge or offense for which the prisoner
5 Record at 133.
6 Id.
7 We have considered Appellant’s claim that the military judge abused his discre-
tion by permitting trial counsel to read the victim’s unsworn statement. However,
that issue was clearly waived by Appellant at trial. Appellant offers no justification
for disturbing waiver, we find none, and will leave that waiver intact. United States
v. Chin, 75 M.J. 220 (C.A.A.F. 2016).
4
United States v. Tyndall, No. 201900096
had been arrested after the commission of the offense for which
the military sentence was imposed, the prisoner (accused) shall
receive no credit for such time confined in the non-military fa-
cility when calculating his or her sentence adjudged at court-
martial. 8
While the phrase: “for a charge or offense for which the prisoner had been
arrested after the commission of the offense for which the military sentence
was imposed,” is not the model of clarity, particularly the first use of the word
“for,” our superior court has determined this word to mean “because of” or “on
account of.” United States v. Harris, 78 M.J. 434, 436–37 (C.A.A.F. 2019). The
record is clear that Appellant’s initial arrest was, at least in part, “because of”
the same 19 May 2018 assault for which he was later sentenced at court-
martial. Therefore, under DoDI 1325.07, Appellant is entitled to confinement
credit for the three days he spent in civilian confinement on 6–8 June 2018.
The record is equally clear that Appellant’s second arrest and civilian pre-
trial confinement were for violation of the conditions of both his bond and the
protective order by meeting with his wife at her home on 10 June, offenses he
committed “after the commission of the offense for which the military sen-
tence was imposed.” The court-martial did not sentence him for violating his
civilian bond or protective order. Therefore, Appellant is not entitled to credit
for the second period of civilian confinement.
Although recognizing that Appellant may be entitled to three days of con-
finement credit, the Government urges us to apply waiver. “[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 (1993)). We concede that, generally, “[w]hen an error is
waived, . . . the result is that there is no error at all.” United States v. Chin,
75 M.J. 220 (C.A.A.F. 2016) (alterations in original) (quoting United States v.
Weathers, 186 F.3d 948 (D.C. Cir. 1999)); see also R.C.M. 905. As the defense
counsel specifically agreed with the military judge when he announced the
erroneous number of days due for confinement credit, Appellant waived this
issue. See United States v. Haynes, 79 M.J. 17, 19 (C.A.A.F. 2019) (finding
appellant affirmatively waived issue “[b]y answering in the affirmative when
asked whether he agreed with the proposed amount of pretrial confinement
credit due”). However, for reasons explained below, we decline to apply waiv-
er.
8 DoDI 1325.07, encl. 2, para. 3.c.
5
United States v. Tyndall, No. 201900096
The Court of Appeals for the Armed Forces (CAAF) has declared that a
purpose of the “raise-or-waive” rule is “to promote the efficiency of the entire
justice system by requiring the parties to advance their claims at trial, where
the underlying facts can best be determined. United States v. King, 58 M.J.
110, 114 (C.A.A.F. 2003) (discussing Hormel v. Helvering, 312 U.S. 552, 556
(1941)). Recognizing the power of the Courts of Criminal Appeals to find
facts, CAAF nonetheless stated that “these powers fall far short of the power
the parties themselves have to develop fully the factual record at trial
through compulsory process and confrontation.” Id.; accord United States v.
Inong, 58 M.J. 460, 464 (C.A.A.F. 2003) (holding the principle of waiver is
“essential to the continued effectiveness of our heavily burdened trial and
appellate judicial systems” (citation and internal quotation marks omitted)).
However, Article 66(c), UCMJ, requires this Court to conduct a plenary
review and “affirm only such . . . sentence or such part or amount of the sen-
tence, as [we] find[ ] correct in law and fact and determine[ ], on the basis of
the entire record, should be approved.” Article 66(c), UCMJ. The CAAF has
found that this “complete Article 66, UCMJ, review” is a “substantial right” of
an accused, Chin, 75 M.J. at 222 (citing, United States v. Jenkins, 60 M.J. 27,
30 (C.A.A.F. 2004)), and that we may not rely solely upon “selected portions
of a record or allegations of error alone.” Id. This is so because there is no
“waiver” exception in Article 66, which requires that we review the record
and approve only that which “should be approved.” Id. “A fortiori, [we] are
required to assess the entire record to determine whether to leave [any]
waiver intact, or to correct the error.” Id at 223.
In United States v. Forbes, 77 M.J. 765 (N-M. Ct. Crim. App. 2018), aff’d,
78 M.J. 279 (C.A.A.F. 2019), we considered a similar issue and applied waiv-
er. In that case, defense counsel successfully litigated a motion for pretrial
confinement relief. Concluding that the preliminary hearing officer had failed
to comply with the procedural requirements of R.C.M. 305(i)(2)(D), the mili-
tary judge granted the defense motion and, under R.C.M. 305(k), awarded
Forbes two additional days’ credit for each day of pretrial confinement from
when pretrial confinement began until completion of the preliminary hearing
officer’s report. Forbes subsequently entered into a pretrial agreement where-
in he agreed to “waive all waivable motions.” When the military judge asked
Forbes whether he discussed this waiver provision with his defense counsel,
Forbes responded in the affirmative. Following findings, the military judge
asked the defense counsel whether his client had been subject to any illegal
pretrial confinement, specifically referencing the litigated R.C.M. 305(k)
ruling. The defense counsel responded, “I don’t contest your ruling on that
one.” Id. at 774.
On appeal, Forbes nonetheless argued that the military judge erred when
she failed to grant additional R.C.M. 305(k) credit for the period following
6
United States v. Tyndall, No. 201900096
issuance of the preliminary hearing officer’s report until she ruled on the
appellant’s motion for release from pretrial confinement. Under those facts,
and after specifically considering Chin, we declined to “exercise our authority
to consider the appellant’s claim under Article 66(c), UCMJ.” Id.
We reach a different conclusion here. This record contains clear and am-
ple evidence that Appellant was entitled to three days of pretrial confinement
credit. This credit was not discretionary and the evidence supporting it was
contained in the record prior to the announcement of sentence. 9 Thus, we
conclude that the parties’ failure to request it and the military judge’s failure
to award it were the result of either oversight or misapplication of the law.
Under these circumstances we distinguish Forbes and, pursuant to Chin and
in keeping with our unique mandate under Article 66, decline to apply waiv-
er. See, e.g., United States v. Chaney, 53 M.J. 621, 624 (N-M. Ct. Crim. App.
2000) (declining to apply waiver for entitlement to pretrial confinement credit
when “both the military judge and the detailed defense counsel were mistak-
en in their understanding of the law”).
III. CONCLUSION
Having carefully considered both of Appellant’s assigned errors, the rec-
ord of trial, and the parties’ submissions, we conclude the findings and sen-
tence are correct in law and fact and that no error materially prejudiced
Appellant’s substantial rights. Arts. 59 and 66, UCMJ. While the findings
and sentence as approved by the convening authority are AFFIRMED, we
order that the Appellant receive an additional 3 days of pretrial confinement
credit.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
9 See PE 3.
7