Collateral effects

Not all states allow a prior court-martial conviction into evidence.  But as the decision in Oliver v. Commonwealth, 60 S.E. 2d 567 (2005), shows, the Commonwealth of Virginia considers a prior special court-martial conviction admissible in sentencing.

In principle, we accept that certain "wholly unconstitutional" convictions can be collaterally attacked and disqualified for consideration during sentencing. United States v. Tucker, 404 U.S. 443 (1972).  But, when available, the collateral attack remedy would not be offered on the ground that the invalid UCMJ conviction rested on something other than the "laws of … the United States" as that phrase appears in Code § 19.2-295.1. Instead, the invalid UCMJ conviction would be excluded from trial, if at all, because it violated a higher law of the United States: the Federal Constitution.

In any event, we need not address Oliver’s hypothesis further. He does not raise on appeal any constitutional objections in contest of his UCMJ convictions.

Or, can an OTH in lieu of trial by court-martial (Chapter 10) be a basis to revoke a state probation, as in Commonwealth of Kentucky v. Lopez, No. 2008-SC-000308-DG (Ky. 27 August 2009).

While serving in the United States Army in Iraq, the Army charged Tommy Lopez with violating the Uniform Code of Military Justice (UCMJ) by viewing child pornography on a computer. At that time, Lopez was also on probation imposed by a Kentucky circuit court for the offense of criminal attempt to commit first-degree sexual abuse. In lieu of trial by court-martial for the child pornography charge, Lopez sought and received a voluntary discharge from the Army. Following the voluntary discharge and his return to Kentucky, the circuit court revoked Lopez’s probation for the pornography charges. The main question before us, which is a matter of first impression in Kentucky, is whether a violation of the UCMJ is an "offense" for which a Kentucky court may revoke probation. We hold that revocation is permissible if the violation of military law subjects the violator to a fine or imprisonment.

The Kentucky Supreme Court says yes, because all the court need know for a probation revocation is that additional misconduct happened.  The “admission” of guilt inherent in a Chapter 10 request is sufficient to establish a basis for misconduct.  Interestingly the subject was charged under Article 92, UCMJ, even though the underlying offenses involved CP.

Our holding should not be construed to mean that a trial court must revoke probation each time a person on probation serving in the armed forces violates a military law. Rather, we simply hold that under Kentucky law, a trial court may revoke probation if a person on probation serving in the armed forces violates military law and the possible punishment for that violation includes a fine or imprisonment. We are confident that trial courts of this Commonwealth will exercise properly their inherent discretion to determine when revocation is appropriate. Any rare instances in which a trial court abuses its discretion may be corrected on appeal.

Given the nature of Lopez’s military offense in this case and the close relationship that offense bears to the Kentucky offense for which he was placed on probation, we conclude the trial court did not abuse its discretion by revoking Lopez’s probation.

So, would Kentucky also include punishment imposed at an Article 15, UCMJ, hearing?  Or by summary court-martial?

Or how about this case, also from Virginia – Turner v. Commonwealth, 568 S.E. 2d 468 (2002).  We are frequently asked whether a special or general conviction is a felony.

Barry Turner (defendant) was convicted by a jury for possession of a firearm by a convicted felon in violation of Code § 18.2-308.2. In proof of the predicate prior felony, the Commonwealth relied upon the earlier conviction of defendant by general court-martial for "Housebreaking," in violation of Article 130, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 930.

Finding the prior offense constituted a felony, we affirm the conviction. However, because the crime was not a "violent felony" contemplated by statute, we reverse the sentence and remand for resentencing.

Testifying for the Commonwealth at the related hearing, Thomas J. Lambert, "legal and hearing services officer for the Virginia Department of State Police," explained, without objection, that military "offenses," "rules of evidence" and "the like" are "set out" in the "Rules of Courts-Martial," "the regulatory authority based upon Title 10 of the United States Code," the UCMJ. Lambert noted that military justice does not identify offenses as felonies or misdemeanors, but jurisdictional distinctions between a "general" and "special" court-martial differentiate crimes by tribunal. A general court-martial, "the … military equivalent of a jury," "may award any punishment … up to and including the death penalty" and "dishonorable discharge," while penalties before a "special court-martial" are limited to "[s]ix months confinement," loss of pay, and "bad conduct discharge."

Note that the conviction happened before the increase from six to 12 months confinement potential at special court-martial.

Defendant next contends the evidence was insufficient to support his conviction. Because his purchase of the offending weapon . . . and "the term `felony’ was never discussed throughout the Army Court Martial," defendant maintains "there was reasonable doubt as to whether or not [he] was a convicted felon." We find his argument without merit.

Or how about, In re Inquiry Concerning Judge Robertson, 596 S.E. 2d. 2 (2004).

This matter comes before the Court on the recommendation of the Judicial Qualifications Commission (JQC) that Charles T. Robertson II, Chief Magistrate Judge for the Magistrate Court of Cherokee County, be removed from office because Judge Robertson is ineligible to hold any elected judicial position as a result of his statutory disqualification and violations of the Code of Judicial Conduct.  Having reviewed the record of the JQC inquiry, we conclude that Judge Charles T. Robertson II has acted in a manner detrimental to the judiciary and order that he be immediately removed from the bench.

in February 2001, a complaint was filed with the JQC alleging that Judge Robertson’s two general court martials and convictions under the provisions of the Uniform Code of Military Justice (UCMJ) constituted felony convictions involving crimes of moral turpitude affecting his eligibility to hold public office. See OCGA § 21-2-8. After conducting an investigation the JQC determined that the factual allegations of the complaint were correct and brought formal charges against Judge Robertson on November 12, 2002 to "determine whether he has violated Canons 1 and 2 of the Code of Judicial Conduct in that he has been previously convicted of crimes that would constitute felonies under Georgia law and thus render Judge Robertson unqualified to serve as Chief Magistrate of the Magistrate Court of Cherokee County." At the formal hearing held in August of 2003, the JQC and Judge Robertson stipulated, inter alia, that he engaged in the alleged conduct and been subject to military convictions and discipline but that he never received notification that lost his right to vote, to serve on a jury, or to own a firearm, and that he exercised some or all of these rights. He also stipulated that in 1994, the Army Board for Correction of Military Records denied his request for a review of his bad conduct discharge and reaffirmed that the gravity of the charged offenses warranted trial by court-martial and authorized dishonorable discharge, confinement for two years and total pay forfeiture.

The JQC issued its findings and recommendations in which it determined by clear and convincing evidence that although the UCMJ does not specifically categorize crimes as felony or misdemeanor, and regardless of the actual sentence imposed, Judge Robertson’s two general court-martial convictions that could have been punished for imprisonment for at least 12 months constituted offenses that are analogous to a felony. See United States v. Moore, 5 U.S.C.M.A. 687, 695-696  (1955) ("[w]e entertain no doubt that an offense serious enough to bear the stigma of a dishonorable discharge possesses the seriousness of felony, and as well bears a heavy content of moral turpitude. We cannot approve of any sort of view which minimizes the gravity of offenses merely because they are of `a military nature’ "). The JQC also found that under Georgia law the military offenses at issue met the statutory definition of a felony as "a crime punishable by death, imprisonment for life, or by imprisonment for more than 12 months." OCGA § 16-1-3(5). It further determined that Judge Robertson’s conviction for the wrongful sale of military property and his conviction for wrongful possession of methamphetamines amounted to crimes involving moral turpitude.

Or how about Disalvatore v. Police Officers’ Education & Training Commission, 753 A. 2d 309 (2000).

Paul F. DiSalvatore petitions for review of the July 1, 1999 order of the Municipal Police Officers’ Education and Training Commission (Commission) that adopted Hearing Examiner John M. Shugars’ decision denying DiSalvatore certification and revoking his approval to attend police recruit training with the Philadelphia Police Department due to his April 8, 1992 conviction of aggravated assault under the Uniform Code of Military Justice (UCMJ). The key issue before us is whether the Commission erred in determining that DiSalvatore’s conviction constituted a "disqualifying criminal offense" such that he is precluded from becoming a municipal police officer. A "disqualifying criminal offense" is defined as "[a] criminal offense for which more than 1 year in prison can be imposed as punishment". For the reasons that follow, we are compelled to affirm the Commission’s order.

The point of reporting these few cases is to reinforce the complexity of answering a clients questions about the consequences or collateral effects of his or her conviction at court-martial, or in Kentucky, of an OTHIL.