U.S. v. Phillips, 64 M.J. 410

Trial Stages: Sentence and Punishment: Fine / Contingent Confinement

1. as part of the sentence, a court-martial may adjudge a fine in lieu of or in addition to forfeitures; RCM 1003(b)(3) provides that in order to enforce collection, a fine may be accompanied by a provision in the sentence that, in the event the fine is not paid, the person fined shall, in addition to any period of confinement adjudged, be further confined until a fixed period considered an equivalent punishment to the fine has expired
2. a fine does not become due until ordered into execution by the convening authority; unless a different date or payment schedule is set forth in the convening authority’s action or otherwise agreed to by the convening authority, payment of the fine is due on the date that the convening authority takes action on the sentence
3. confinement may not be executed for failure to pay a fine if the accused demonstrates that the accused has made good faith efforts to pay but cannot because of indigency, unless the authority considering imposition of confinement determines, after giving the accused notice and opportunity to be heard, that there is no other punishment adequate to meet the government’s interest in appropriate punishment
4. a commanding officer empowered to order contingent confinement is not acting in the capacity of the convening authority who approved the results of the court-martial under Article 60(c), UCMJ, but as the authority considering imposition of confinement for nonpayment of the fine under RCM 1113(d)(3); exercise of the authority to impose contingent confinement by the officer serving as a person’s commanding officer subsequent to action under Article 60(c), UCMJ, does not violate the MCM
5. under RCM 1113(d)(3), an accused who fails to pay an executed fine is entitled to the opportunity to show indigence and demonstrate past good faith efforts to pay before being ordered into confinement for failure to pay; if the accused demonstrates indigence, the authority considering confinement must determine, after notice to the accused and a hearing, that no alternative punishment is adequate to meet the government’s interest in punishment; if an accused cannot demonstrate indigence, the authority considering confinement need not consider alternatives before executing contingent confinement; the authority considering confinement may choose to consider alternative punishments as a matter of discretion in the case of a nonindigent accused, but is not required to do so
6. contingent confinement is an enforcement mechanism that may be included in a sentence to a fine, allowing the proper authority to order into confinement an accused who fails to pay the fine; RCM 1113(d)(3) makes it clear that the predicate to converting contingent to actual confinement is the failure by a servicemember to pay a fine that is due; inasmuch as a fine is not due until the sentence is executed, contingent confinement may be executed only after: (1) the fine is executed, (2) the accused has an opportunity to pay, and (3) fails to do so
7. a convening authority’s action approving a sentence that includes contingent confinement for the failure to pay a fine does not preclude a different officer from converting the contingent confinement provision of the sentence into actual confinement when appellant fails to pay the fine; in this case, when appellant failed to pay the fine, his commanding officer properly ordered a fine enforcement hearing, determined that appellant was not indigent, and ordered him into contingent confinement for willful failure to pay; although appellant characterizes his commanding officer as a “substitute” convening authority, the commanding officer did not execute contingent confinement in the capacity of a “substitute” for the convening authority over appellant’s court-martial; rather, he acted as “the authority considering imposition of confinement” under RCM 1113(d)(3), and as such, there was no error in the execution of contingent confinement
8. where an appellant who has failed to pay a fine does not establish that he is indigent at his fine enforcement hearing, the authority considering the imposition of contingent confinement is not required by RCM 1113(d)(3) or any other provision of the MCM to consider alternatives to confinement before ordering appellant into contingent confinement; in this case, because appellant failed to establish that he was indigent, his commanding officer was not required to consider whether his proposed payment plan or any alternative punishment would be adequate to meet the government’s interests

Trial Stages: Initial Review: Action

1. Article 60(c), UCMJ, requires the convening authority to take action on the sentence of the court-martial; the convening authority has broad power under Article 60(c)(2), UCMJ, to approve, disapprove, commute, or suspend the sentence in whole or in part
2. when taking action on the sentence, the convening authority’s approval or disapproval shall be explicitly stated; if only part of the sentence is approved, the action shall state which parts are approved; when appropriate, the action shall state whether an approved sentence is to be executed or whether all or any part of the sentence is to be suspended
3. after the convening authority takes action on the results of a general court-martial, the convening authority forwards the record to the Judge Advocate General concerned to initiate appellate review; the convening authority may recall or modify his or her action in a general court-martial at any time prior to forwarding the record for review so long as the modification does not result in action less favorable to the accused than the earlier action; after the convening authority has taken action on the sentence and has forwarded the record for review, reviewing authorities may return the case to the convening authority with direction to take further action in the case

Trial Stages: Initial Review: Execution of Sentences

1. certain portions of a sentence may take effect prior to the convening authority’s action, e.g. forfeitures of pay and allowances, reduction in rank, and confinement; a fine, however, does not become due until ordered into execution by the convening authority; unless a different date or payment schedule is set forth in the convening authority’s action or otherwise agreed to by the convening authority, payment of the fine is due on the date that the convening authority takes action on the sentence
2. confinement may not be executed for failure to pay a fine if the accused demonstrates that the accused has made good faith efforts to pay but cannot because of indigency, unless the authority considering imposition of confinement determines, after giving the accused notice and opportunity to be heard, that there is no other punishment adequate to meet the government’s interest in appropriate punishment
3. a commanding officer empowered to order contingent confinement is not acting in the capacity of the convening authority who approved the results of the court-martial under Article 60(c), UCMJ, but as the authority considering imposition of confinement for nonpayment of the fine under RCM 1113(d)(3); exercise of the authority to impose contingent confinement by the officer serving as a person’s commanding officer subsequent to action under Article 60(c), UCMJ, does not violate the MCM
4. under RCM 1113(d)(3), an accused who fails to pay an executed fine is entitled to the opportunity to show indigence and demonstrate past good faith efforts to pay before being ordered into confinement for failure to pay; if the accused demonstrates indigence, the authority considering confinement must determine, after notice to the accused and a hearing, that no alternative punishment is adequate to meet the government’s interest in punishment; if an accused cannot demonstrate indigence, the authority considering confinement need not consider alternatives before executing contingent confinement; the authority considering confinement may choose to consider alternative punishments as a matter of discretion in the case of a nonindigent accused, but is not required to do so
5. contingent confinement is an enforcement mechanism that may be included in a sentence to a fine, allowing the proper authority to order into confinement an accused who fails to pay the fine; RCM 1113(d)(3) makes it clear that the predicate to converting contingent to actual confinement is the failure by a servicemember to pay a fine that is due; inasmuch as a fine is not due until the sentence is executed, contingent confinement may be executed only after: (1) the fine is executed, (2) the accused has an opportunity to pay, and (3) fails to do so
6. a convening authority’s action approving a sentence that includes contingent confinement for the failure to pay a fine does not preclude a different officer from converting the contingent confinement provision of the sentence into actual confinement when appellant fails to pay the fine; in this case, when appellant failed to pay the fine, his commanding officer properly ordered a fine enforcement hearing, determined that appellant was not indigent, and ordered him into contingent confinement for willful failure to pay; although appellant characterizes his commanding officer as a “substitute” convening authority, the commanding officer did not execute contingent confinement in the capacity of a “substitute” for the convening authority over appellant’s court-martial; rather, he acted as “the authority considering imposition of confinement” under RCM 1113(d)(3), and as such, there was no error in the execution of contingent confinement
7. where an appellant who has failed to pay a fine does not establish that he is indigent at his fine enforcement hearing, the authority considering the imposition of contingent confinement is not required by RCM 1113(d)(3) or any other provision of the MCM to consider alternatives to confinement before ordering appellant into contingent confinement; in this case, because appellant failed to establish that he was indigent, his commanding officer was not required to consider whether his proposed payment plan or any alternative punishment would be adequate to meet the government’s interests

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether a convening authority’s action approving a sentence under Article 60(c), UCMJ, precludes a different officer from converting a contingent confinement provision of that sentence into actual confinement when appellant fails to pay the fine is question of law that an appellate court reviews de novo
2. an appellate court reviews a decision to convert a fine into confinement for an abuse of discretion