United States v. Cannon

Opinion of the Court

We granted review to determine whether the appellant was prejudiced by the use of a record of conviction by a summary court-martial to allow additional punishment under SECTION B, paragraph 127c, Manual for Courts-Martial, United States, 1969 (Revised edition).

In United States v. Booker, 5 M.J. 238 (C.M.A. 1977), the Court concluded that the decision of the United States Supreme Court in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), required rejection of summary court-martial convictions for the purpose of the escalation clause of the cited Manual provision. Left for consideration is whether the Booker opinion will be applied retroactively. Applying the criteria set forth in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967),1 and relied upon in United States v. Jackson, 3 M.J. 101 (C.M.A. 1977), we conclude that Booker should be applied only to cases tried or retried after publication of the Booker opinion, specifically October 11, 1977.

In this regard, we note that the retroactive application of Booker could adversely affect the trial of any case which not only involved the escalation clause, but any court-martial where records of Article 15 and 20 2 proceedings, without the requisite advice of counsel, were introduced during the extenuation and mitigation portion of the trial. Undoubtedly, this would include a tremendous number of cases with the ensuing disruption of the administration of military justice. Furthermore, prior to the *199Supreme Court’s release of Middendorf v. Henry, supra, the authorities properly relied upon the characterization of a summary court-martial conviction as a criminal judgment. See United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973).

The decision of the United States Navy • Court of Military Review is affirmed.