UNITED STATES, Appellee
v.
Derek C. BURCH, Corporal
U.S. Marine Corps, Appellant
No. 08-0092
Crim. App. No. 200700047
United States Court of Appeals for the Armed Forces
Argued September 24, 2008
Decided October 16, 2008
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Lieutenant Heather L. Cassidy, JAGC, USN
(argued).
For Appellee: Major James W. Weirick, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN (on brief).
Military Judge: J. G. Meeks
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Burch, No. 08-0092/MC
Judge Ryan delivered the opinion of the Court.
The sole point of dispute between the parties in this case
is whether Appellant was prejudiced by serving 223 days in
confinement, when that period of confinement was suspended by
the convening authority in a facially complete and final action
issued in accordance with Rule for Courts-Martial (R.C.M.)
1107(f).1 We hold that where a clear and unambiguous action is
the convening authority’s last action delimiting the period of
confinement to be served, an accused is prejudiced by being
confined for a period in excess of the authorized sentence. The
United States Navy-Marine Corps Court of Criminal Appeals (CCA)
erred in relying on facts and circumstances predating the
convening authority’s unambiguous action to find that Appellant
was not prejudiced.
The facts relevant to this decision are few and undisputed.
A special court-martial composed of a military judge sitting
alone convicted Appellant, pursuant to his pleas, of willfully
damaging military property of the United States, assault
consummated by a battery, and assault consummated by a battery
1
On Appellant’s petition, we granted review of the following
issue:
WHERE THE LOWER COURT FOUND A CONSTITUTIONAL
VIOLATION, DID IT ERR WHEN IT FOUND THAT APPELLANT WAS
NOT PREJUDICED WHEN HE WAS CONFINED FOR OVER SEVEN
MONTHS BEYOND THE DATE HE SHOULD HAVE BEEN RELEASED
UNDER THE CONVENING AUTHORITY’S UNAMBIGUOUS ACTION?
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United States v. Burch, No. 08-0092/MC
upon a child under the age of sixteen years, in violation of
Articles 108 and 128, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 908, 928 (2000). The adjudged sentence included
confinement for a period of one year, reduction to pay grade E-
1, and a bad-conduct discharge. As provided in the pretrial
agreement (PTA), the convening authority suspended all
confinement in excess of forty-five days on the condition that
Appellant commit no misconduct in violation of the UCMJ during
the period of suspension. Appellant served forty-five days of
confinement and was released on June 30, 2005.2
Subsequent to Appellant’s release, but before either the
period of suspension set forth in the PTA had run or the
convening authority had acted, Appellant committed additional
misconduct in violation of the terms of his PTA. The suspension
of the remainder of his adjudged confinement was properly
vacated in accordance with the procedures prescribed in R.C.M.
1109 and Appellant was returned to the brig at Camp Pendleton on
January 24, 2006, to serve the remainder of his adjudged period
of confinement.
On March 11, 2006, the convening authority took action on
the sentence, in accordance with R.C.M. 1107. The parties agree
with, and the record supports, the CCA’s conclusion that the
2
While the release order was dated June 28, 2005, as referenced
in the CCA’s opinion, the order did not authorize Appellant’s
release until June 30, 2005.
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United States v. Burch, No. 08-0092/MC
convening authority’s action was facially complete and
unambiguous. United States v. Burch, No. NMCCA 200700047, 2007
CCA LEXIS 351, at *15-*16, 2007 WL 2745706, at *5-*7 (N-M. Ct.
Crim. App. Sept. 13, 2007). The action stated: “Execution of
that part of the sentence adjudging confinement in excess of 45
days is suspended for a period of 12 months . . . .” Special
Court-Martial Order No. 70-05 (Mar. 11, 2006). Despite this
action, the Government neither released Appellant from
confinement nor made efforts to vacate the second suspension on
or anytime after the date of the convening authority’s action.
Instead, Appellant remained in confinement until October 20,
2006, having served 223 days beyond the sentence that had been
authorized by the convening authority.
In reviewing Appellant’s confinement, the CCA cited this
Court’s decision in United States v. Wilson, 65 M.J. 140
(C.A.A.F. 2007), and recognized that the additional 223 days of
confinement were not authorized by the convening authority.
Burch, 2007 CCA LEXIS 351, at *16, 2007 WL 2745706, at *5.
However, the CCA went on to hold that Appellant was not
prejudiced by serving the additional confinement. Id. at *18-
*19, 2007 WL 2745706, at *6. In the CCA’s view, considering the
record as a whole, there was no prejudice because it was
“evident that the overwhelming wealth of evidence indicate[d]
that, notwithstanding the plain language of the convening
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United States v. Burch, No. 08-0092/MC
authority’s action, the convening authority did not intend to
release the appellant from confinement prior to completion of
his adjudged sentence.” Id. at *18, 2007 WL 2745706, at *6. We
disagree.
The CCA’s conclusion that Appellant was not prejudiced
explicitly rests on facts extrinsic to and predating the
convening authority’s action, ignoring the significance and
timing of the action itself and our holding in Wilson. The CCA
cited no legal authority for the novel precept that confinement
not authorized by a convening authority’s action does not
prejudice an accused because events preceding the action suggest
that at one time the convening authority “did not intend to
release Appellant from confinement prior to completion of his
adjudged sentence.”
A convening authority’s action on the sentence is within
“the sole discretion of the convening authority” as a “matter of
command prerogative.” Article 60(c)(1), UCMJ, 10 U.S.C. §
860(c)(1); R.C.M. 1107(b)(1). See, e.g., United States v.
Davis, 58 M.J. 100, 102 (C.A.A.F. 2003) (noting the convening
authority’s “substantial discretion” and important role in the
sentencing process); United States v. Finster, 51 M.J. 185, 186
(C.A.A.F. 1999) (holding that the convening authority “has
unfettered discretion to modify the findings and sentence for
any reason -- without having to state a reason -- so long as
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United States v. Burch, No. 08-0092/MC
there is no increase in severity”). “[W]hen the plain language
of the convening authority’s action is facially complete and
unambiguous, its meaning must be given effect,” without
reference to circumstances not reflected in the action itself.
Wilson, 65 M.J. at 141. If the convening authority’s action is
to be given effect, as required by R.C.M. 1107, attendant
circumstances preceding the action may not be utilized to
undermine it.
The effect of the convening authority’s action in this
case, as the CCA purported to recognize, is that confinement in
excess of forty-five days was suspended and no other confinement
was approved. In contradiction to this action, Appellant served
223 days of confinement that both the parties and the CCA agree
were suspended by the convening authority. Within the military
justice system, punishment suspended by a convening authority
may not be executed. R.C.M. 1113(a) (“No sentence of a court-
martial may be executed unless it has been approved by the
convening authority.”). Contrary to the CCA’s analysis, we
conclude that the prejudice in this case is both obvious and
apparent and may not be attenuated by facts predating the final
action of the convening authority. Holding otherwise would
neither give effect to a clear and unambiguous action by the
convening authority, nor adhere to this Court’s holdings in
Wilson and Finster.
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United States v. Burch, No. 08-0092/MC
The September 13, 2007, decision of the United States
Navy-Marine Corps Court of Criminal Appeals is reversed. The
record of trial is returned to the Judge Advocate General of the
Navy for remand to the Court of Criminal Appeals to determine
and award meaningful sentence relief to Appellant pursuant to
its powers under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).
7