IN THE CASE OF

UNITED STATES, Appellee

v.

Noel A. PINEDA, Corporal

U.S. Marine Corps, Appellant

No. 99-0915

Crim. App. No. 98-1659

United States Court of Appeals for the Armed Forces

Argued February 29, 2000

Decided January 9, 2001

SULLIVAN, J., delivered the opinion of the Court, in which GIERKE

and EFFRON, JJ., and COX, S.J., joined. CRAWFORD, C.J., filed an

opinion concurring in the result.

Counsel

For Appellant: Lieutenant Omar R. Lopez, JAGC, USNR (argued). 

For Appellee: Lieutenant Kevin S. Rosenberg, JAGC, USNR (argued); Colonel

Kevin M. Sandkuhler, USMC, and Commander Eugene E. Irvin, JAGC, USN (on

brief); Lieutenant Commander Philip Sundel, JAGC, USNR, and Lieutenant

Janice O’Grady, JAGC, USNR.

 

Military Judge: R. G. Williams

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Pineda, 99-0915/MC

2

Judge SULLIVAN delivered the opinion of the Court.

On August 28, 1997, appellant was tried by a special courtmartial composed of a military judge sitting alone at the Naval

Legal Service Office, Middle Atlantic, Norfolk, Virginia. In

accordance with his pleas, he was found guilty of unauthorized

absence, nine specifications of making false official statements,

forgery, and six specifications of fraud against the United

States, in violation of Articles 86, 107, 123, and 132, Uniform

Code of Military Justice, 10 USC §§ 886, 907, 923, and 932. He

was sentenced to a bad-conduct discharge, confinement for 4

months, forfeiture of $600 pay per month for 4 months, and

reduction to pay grade E-1. On December 18, 1997, the convening

authority acted in this case. 1 On May 28, 1999, the Court of

Criminal Appeals affirmed in an unpublished opinion (No. 98-

1659).

We granted review in this case on October 22, 1999, on the

following issues:

I. WHETHER THE LOWER COURT ERRED IN

AFFIRMING THE MILITARY JUDGE’S DECISION

NOT TO INQUIRE INTO APPELLANT’S

UNDERSTANDING OF THE RAMIFICATIONS OF HIS

REQUEST FOR A BAD-CONDUCT DISCHARGE.

 

 1 The convening authority’s action in this case was unclear

regarding whether appellant’s bad-conduct discharge was approved.

However, an affidavit supplied by the convening authority and

made part of the record without appellant’s objection makes clear

the convening authority’s intent to approve the bad-conduct

discharge. Therefore, we are satisfied the bad-conduct discharge

was approved.
United States v. Pineda, 99-0915/MC

3

II. WHETHER THE LOWER COURT ERRED IN NOT

FINDING THAT THE TRIAL DEFENSE COUNSEL’S

ERROR MATERIALLY PREJUDICED APPELLANT’S

SUBSTANTIAL RIGHTS WHERE HE ARGUED THAT A

DISCHARGE WAS APPROPRIATE EVEN THOUGH

APPELLANT HAD NOT REQUESTED IT.

We hold that defense counsel erred in conceding the

appropriateness of a bad-conduct discharge in his sentencing

argument without putting in the record that appellant agreed with

this argument. United States v. Dresen, 40 MJ 462, 465 (CMA

1994). Such error, however, did not materially prejudice

appellant’s substantial rights. United States v. Robinson, 25 MJ

43, 44 (CMA 1987).

Appellant was a 19-year-old Marine with one-and-a-half years

of military service at the time he began committing the charged

offenses. He engaged in a scheme to secure additional allowances

from the United States Government by falsifying various official

forms to the effect that he was married. He maintained this

scheme from March of 1995 to January of 1997, and obtained

various unauthorized allowances in the approximate amount of

$15,000. (Prosecution Exhibit 11). As a result of these criminal

activities, appellant rented and lived in a two-bedroom apartment

in the Virginia Beach area. He was promoted to the rank of

corporal (E-4) during the period of these fraudulent activities

and borrowed $15,000 from his parents to make restitution.

The Court of Criminal Appeals found the following facts

concerning the granted issues:
United States v. Pineda, 99-0915/MC

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Appellant obtained a pretrial agreement

which allowed his charges to be brought to

a special court-martial, in lieu of the

Government seeking a referral to a general

court-martial. This was the sole

consideration given by the Government in

the pretrial agreement. In return,

appellant had to enter pleas of guilty to

the charges and specifications and make

restitution to the United States in the

amount of $15,425.03. Appellate Exhibit I

and Record at 92-95.

During the sentencing portion of the

trial, appellant elected to make an

unsworn statement. The relevant portion

is as follows:

ICC: Now, you know what the maximum

possible punishment is in this case, and

you and I have been frank with each other

with regard to the type of discharge

you’re undoubtedly going to receive, and

if this court didn’t, the Marine Corps

would. What confinement are you -- do you

have any request you want to make of the

Judge with regard to confinement?

ACCUSED: Yes - yes, I do. I’m -

I’m in debt to my to my parents for

helping with the -- the restitution, and

I’m making every possible effort to -- to

pay them back. They don’t make that much

money themselves, my mom is a teacher’s

aid at a school and my dad works at a

factory. My bother [sic] also helps out

for expenses. I got a second job to -- to

help them out a little bit more, and

whatever happens I’m going to try to make

-- make the best of anything, that’s --

that’s what I always do.

Record at 84. During argument on

sentencing, appellant’s counsel made the

following comments:

So, I would respectfully submit,

Your Honor, that perhaps a badconduct discharge, and I don’t like

asking for one, but I’m practical

it’s going to happen, and the

forfeiture, and I agree the
United States v. Pineda, 99-0915/MC

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reduction to pay grade E-1 are

appropriate in this particular case.

But I respectfully submit, Your

Honor, that a period of confinement,

certainly a lengthy period of

confinement in his case is -- is

simply not warranted and I

respectfully ask in his behalf that

you not confine him. Thank you.

Record at 90. The military judge did not

ask appellant any questions regarding his

understanding of the ramifications of a

bad-conduct discharge, nor did he ask

appellant if he authorized his counsel to

request a punitive discharge on his

behalf.

Unpub. op. at 2-3 (emphasis added).

The appellate court below found that defense counsel erred.

It said, “In appellant’s case, it is clear that his counsel, at a

minimum, conceded the appropriateness of the discharge without

any indication on the record that appellant desired such an

outcome. This is error. United States v. Dresen, 40 MJ 462 (CMA

1994).” Id. at 4. However, it also found no prejudice. It

said:

Prejudice will not be presumed. We must

decide if the argument of counsel

prejudiced appellant’s sentence and

increased appellant’s chances of otherwise

being awarded a bad-conduct discharge. We

find that it did not. Unlike the facts in

McNally, in which our superior court found

prejudice at a special court-martial

because his confinement was already

limited by the pretrial agreement and the

nature of the charges were not so serious

that a discharge was inevitable, we find

the circumstances surrounding appellant’s

offenses were such that a punitive

discharge was inevitable. These were very

serious charges that were brought to a
United States v. Pineda, 99-0915/MC

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special, vice a general, court-martial

pursuant to a pretrial agreement.

Appellant was required to make restitution

of over $15,000. The charges and

specifications of criminal misconduct are

numerous. We cannot believe that any

sentencing authority would not have

awarded a punitive discharge, no matter

how elegantly or forcefully defense

counsel may have argued for retention.

Id. at 4-5 (emphasis added).

___ ___ ___

A punitive separation from the military, either a bad-conduct

discharge or a dishonorable discharge, is a severe punishment and

has long been recognized as such by this Court. See United

States v. McNally, 16 MJ 32, 33 (CMA 1983), and cases cited

therein. Nevertheless, we have recognized that in certain

circumstances a military accused may request such a punishment be

imposed by his court-martial. E.g., United States v. Volmar, 15

MJ 339 (CMA 1983). Our case law, however, reflects this Court’s

views that defense counsel not ask for this type of discharge in

contravention of an accused’s wishes, and that a military judge

make appropriate inquiries where an apparent conflict exists

between them. 2 See United States v. Lyons, 36 MJ 425, 427 (CMA

1993). Moreover, we have held that a defense counsel may not

 

 2 There is no conflict in the record in this case which

required the military judge to stop this trial and interrogate

appellant and his defense counsel in this matter.
United States v. Pineda, 99-0915/MC

7

even concede the appropriateness of a punitive discharge in the

face of a silent record. Id.

In United States v. Dresen, this Court restated this law

concerning defense counsel’s arguments for a punitive discharge.

We said:

Of course, an accused has a right to ask

the sentencing authority for a particular

punishment to the exclusion of other kinds

of permissible penalties, and a defense

counsel may advocate an accused’s wishes

in this regard in an effort to effectuate

them. United States v. Weatherford, 19

USCMA 424, 42 CMR 26 (1970). Counsel may

not, however, ask a court-martial to

impose a punitive discharge when the

accused’s wishes are to the contrary.

United States v. Robinson, 25 MJ 43 (CMA

1987); United States v. Webb, 5 MJ 406

(CMA 1978); United States v. Weatherford,

supra. Accordingly, when defense counsel

does seek a punitive discharge or does

concede the appropriateness of such a

dischargeeven as a tactical step to

accomplish mitigation of other elements of

a possible sentencecounsel must make a

record that such advocacy is pursuant to

the accused’s wishes. United States v.

Lyons, 36 MJ 425 (CMA 1993); United States

v. McNally, 16 MJ 32 (CMA 1983).

40 MJ at 465 (emphasis added). In the present case, we hold that

there was not an adequate record of appellant’s desire that a

punitive discharge be actually imposed. Cf. United States v.

Lyons, supra at 426 (“I feel that it is in both my interest and

the Navy [sic] to discharge me.”), and cases cited at 427.
United States v. Pineda, 99-0915/MC

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Nevertheless, in United States v. Dresen, supra, we held that

the failure to make a proper record of the accused’s wishes does

not, per se, require an appellate court to set aside a courtmartial sentence. Instead, in that case we assessed the impact

of that error on the approved sentence to determine whether

sufficient prejudice existed for a finding of ineffective

assistance of counsel under the second prong of the test in

Strickland v. Washington, 466 U.S. 668 (1984). The same inquiry

is appropriate in the present case with respect to the adjudged

sentence. In particular, where the facts of a given case compel

a conclusion that a bad-conduct discharge was reasonably likely,

we do not normally order a new sentence hearing. United States

v. Volmar, supra at 343.

Turning to the record before us, we note that appellant

implicitly acknowledged the reasonable certainty of a punitive

discharge in his case when questioned by defense counsel. (R. at

84). His belief in this regard was well justified. He was

convicted of numerous offenses (17) involving repeated financial

frauds on the United States Government involving a substantial

amount of money, approximately $15,000. See United States v.

Robinson, supra at 44. Moreover, in his brief military career,

he was previously counseled for financial dishonesty

(unauthorized use of a government phone), and he committed some

of the charged military offenses while a noncommissioned officer.

His repeated abuse of government property entrusted to him

greatly enhanced his chances of receiving a punitive discharge.
United States v. Pineda, 99-0915/MC

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Cf. United States v. Dresen, supra at 465 (special circumstances

existed suggesting forceful and persuasive plea for clemency may

have been successful). Finally, this was a trial before a

military judge alone, and we are confident that this judge was

aware that a proper record had not been made and disregarded the

improper argument before him. See United States v. Robinson,

supra at 44; see also United States v. Raya, 45 MJ 251, 254

(1996). Therefore, appellant has failed to prove that he was

prejudiced by his counsel’s improper argument. See Strickland v.

Washington, supra. In these circumstances, we agree with the

appellate court below that a sentence rehearing is not required

in this case.

The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.
United States v. Pineda, No. 99-0915/MC

CRAWFORD, Chief Judge (concurring in the result):

In my judgment, appellant’s claim is essentially one

of ineffective assistance of counsel. See, e.g., United

States v. Pfister, 53 MJ 158, 160 (2000)(Sullivan, J.,

concurring in the result). While I agree that it would

have been preferable for the military judge to inquire on

the record whether appellant’s civilian counsel was

requesting a discharge, and if so, whether appellant

concurred in such a request, I find no error based upon the

facts of this case.

“Defense counsel is an advocate for the accused, not

an amicus to the court.” United States v. Volmar, 15 MJ

339, 340 (CMA 1983), citing Ellis v. United States,

356 U.S. 674 (1958). When an accused expresses a desire to

stay in the service (whether it be to avoid a punitive

discharge or because he wants to continue to serve the

nation), the defense counsel errs by conceding the

appropriateness of a punitive discharge or telling the

court that the accused’s conduct warrants such. See United

States v. Garcia, 18 USCMA 75, 76, 77, 39 CMR 75, 76, 77

(1968); United States v. Richardson, 18 USCMA 52, 53, 39

CMR 52, 53 (1968); United States v. Holcomb, 20 USCMA 309,

43 CMR 149 (1971); United States v. Webb, 5 MJ 406 (CMA

1978).
United States v. Pineda, No. 99-0915/MC

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While the majority correctly notes that there is no

evidence that appellant desired to be discharged, I note

that the record is devoid of any evidence to the contrary.

Nowhere does appellant express a desire to be retained in

the service after his conviction. See United States v.

Lyons, 36 MJ 425, 427 (CMA 1993). The record indicates

that both appellant and his counsel were resigned to the

fact that appellant’s days in the Marine Corps were short

lived, for the reasons cited by the majority. __ MJ at(8).

The evidence of record convinces me that appellant’s

primary desire was to avoid incarceration so that he could

continue to work and repay the $15,000 debt his parents

incurred in making the Government whole following

appellant’s larcenous adventures.

As I stated in United States v. Lee, 52 MJ 51, 53

(1999)(Crawford, J., concurring in the result): “The key

to effective advocacy on behalf of one’s client ...

requires the advocate to do many things ..., including

making rational choices based on the unique circumstances

of each case....” By conceding the likelihood of

appellant’s discharge from the Marine Corps, whether that

discharge came in the form of a punitive sentence from the

military judge, or whether it came administratively after

trial, defense counsel was asking the judge to mitigate
United States v. Pineda, No. 99-0915/MC

3

confinement. This concession also dovetailed with the

defense theory at sentencing -- let this “fallen Marine”

return home, remain employed, and repay his debts.

Counsel’s concession was entirely appropriate in light of

the number and nature of the offenses with which his client

was charged. Zealous representation does not equate to

making hopeless arguments. See id. at 54. Finding no

deficiency in counsel’s representation under the first

prong of Strickland v. Washington, 466 U.S. 668 (1984), I

would affirm the findings and sentence in this case.