Marlon D. Hutchison Machinery Technician Second Class U.S. Coast Guard Convicted Sex Offender Committing Indecent Acts With A Child Under 16

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Name: Marlon D. Hutchison

U.S. V. Hutchison No. 02-5001

Date Of Appeal: May 1, 2002

Plea: Guilty

Charges: Committing indecent acts upon a minor

Military Branch: U.S. Coast Guard

Listed In National Sex Offenders Registry? No

A general court-martial composed of a military judge sitting alone convicted appellee, contrary to his pleas, of rape, forcible sodomy of a minor, adultery, and indecent acts upon a minor, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice (UCMJ), 10 USC §§ 920, 925, and 934, respectively. He was sentenced to a bad-conduct discharge, confinement for 28 months, and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged.

A panel of the Court of Criminal Appeals affirmed the findings. However, the court affirmed only that part of the sentence extending to confinement for 28 months pursuant to its statutory responsibility to review the sentence under Article 66(c), UCMJ, 10 USC § 866(c). 55 MJ 574 (C.G.Ct.Crim.App. 2001). The full Court of Criminal Appeals, upon motion by the Government for reconsideration en banc, approved the panel decision. 56 MJ 684 (2001). The General Counsel of the Department of Transportation certified to our Court four issues related to the action on the sentence by the Court of Criminal

Appeals.1 For the reasons set forth below, we remand the case to the Court of Criminal Appeals for clarification.

I. BACKGROUND

In January 1997, appellee telephoned civilian police authorities in South Carolina to report that he had committed an act of sexual abuse on his 12-year-old stepdaughter at their off-base residence. He cooperated in the ensuing civilian investigation. Military charges were preferred on February 21, and he was indicted on state charges by civilian authorities on April 17.

On April 28, the convening authority referred the military charges to trial by general court-martial. Because civilian charges were pending in South Carolina, the convening authority was required by Coast Guard regulations to obtain authorization from the Commandant of the Coast Guard for the court-martial. See para. B-4-a, ch. 2, Military Justice Manual, COMDTINST M5810.1C (Change 4, 14 Feb 1997). The convening authority sought such authorization on May 27, which was granted on May 28. During appellee's court-martial, which began on July 9 and concluded on July 15, 1997, neither party brought to the attention of the court any matter concerning appellee's pending civilian trial in state court.

On September 11, prior to the convening authority’s action on appellee’s military trial, appellee appeared in state court and entered a guilty plea to committing a lewd act upon a child. He was sentenced to five years' confinement, which was suspended with two years' probation. The probation was tolled until appellee was released from military custody.