United States v. Miley, 59 MJ 300 (where the vacation hearing officer's decision and recommendation to the GCMCA did not comply with the requirements of R.C.M. 1109, the Court of Criminal Appeals erred in affirming the findings and sentence).
(the process of vacating a suspended sentence of a general court-martial is governed by Article 72, UCMJ, and R.C.M. 1109, both of which require that the SPCMCA (1) conduct a hearing on the alleged violation of the conditions of suspension and (2) transmit a record of that hearing and his/her recommendation to the GCMCA; upon receipt of the package, the GCMCA is required to review the record and the SPCMCA’s recommendation and decide whether the probationer violated a condition of suspension; if so, the GCMCA must decide whether to vacate the suspended sentence; if a decision is made to vacate the suspended sentence, the GCMCA is required to prepare a written statement of the evidence relied on and the reasons for that decision).
(we agree that the SPCMCA is required to provide an evaluation of any contested facts and a determination of whether the facts, as found, warrant vacation of the suspension; that obligation arises as a requirement under R.C.M. 1109(d)(1); the rule requires the SPCMCA to personally hold a hearing on the alleged violation of the conditions of suspension, make a summarized record of that hearing, and to transmit both the record and a written recommendation concerning vacation to the GCMCA; the SPCMCA acts as the GCMCA’s eyes and ears during this process and is the only official to personally observe the demeanor of the witnesses).
(the requirements set forth in R.C.M. 1109(d)(1) would have little meaning if the SPCMCA was not required to resolve any contested evidentiary questions and provide the basis for that resolution to the GCMCA; to the extent that the hearing contemplated by R.C.M. 1109(d)(1) is the only hearing conducted during the vacation process, it makes little sense to conclude that the rule does not require that any facts actually be salted down at the hearing; accordingly, the written recommendation required of the SPCMCA under R.C.M. 1109(d)(1)(D) must include both an evaluation of the contested facts and a determination of whether the facts warrant vacation).
(in this case, the SPCMCA's comments at the conclusion of the suspension hearing fell short of fulfilling the requirements of R.C.M. 1109(d)(1)(D); she failed to evaluate the facts and chose to make a recommendation based on equitable grounds; this was error).
(while there may well be forms of error committed by an SPCMCA in fulfilling his or her responsibilities under R.C.M. 1109(d)(1) that a GCMCA's compliance with R.C.M. 1109(d)(2) might remedy, a failure to evaluate and determine the contested facts is not one of them; the record produced by and the recommendation of the SPCMCA is the basis upon which the GCMCA must decide whether the probationer violated a condition of suspension, and, if so, decide whether to vacate the suspended sentence).
(the GCMCA's review of the record and his or her ultimate decision represents a substantial right because the GCMCA may for any reason or no reason at all decide not to vacate the agreed-upon suspension; however, without any resolution of disputed facts and/or determinations of witness credibility by the SPCMCA, the GCMCA is left with an insufficient record upon which to base his or her ultimate decision).
(in this case, the GCMCA correctly set forth his decision and the evidence that he relied upon in making that decision; however, the record that he relied upon was devoid of an integral step -- the resolution of critical fact questions by the SPCMCA; appellant had a substantial right to that step in the process and we will not speculate as to what decision the GCMCA may have made if the SPCMCA had properly evaluated and resolved the contested facts in the record; accordingly, the action of the GCMCA in vacating the suspension of the sentence must be set aside).
United States v. Miley, 51 MJ 232 (conflicting and incomplete affidavits left record unacceptable for appellant review of lawfulness of revocation of suspension; further proceedings pursuant to United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), were necessary to consider specific questions or, if those proceedings were impracticable, a new vacation proceeding was authorized).
United States v. Dawson, 51 MJ 411 (under circumstances of this case, it was appropriate for an accused who sought some benefit from waiving a vacation proceeding to do so through communications and agreement directly with the convening authority; such negotiations do not require the approval of a military judge because, just like dismissal of pending charges, they involved matters within the prerogative of commanders and do not involve a modification of the original pretrial agreement).
(an accused may waive defects in a vacation proceeding and avoid a new vacation proceeding through communications and agreement directly with the convening authority; such an agreement is collateral to the original court-martial, but remains subject to appellate review of claims that an appellant misunderstood the agreement’s meaning and effect or that there was government overreaching).
United States v. Mitchell, 51 MJ 490 (where a portion of the approved sentence is suspended based upon a promise to make restitution in a pretrial agreement, a probationer who cannot comply with the pretrial agreement through his own fault is not permitted to use indigence to excuse his failure to comply with the agreement and defend against revocation of the suspension; good faith remains the linchpin of the analysis).
(the Due Process Clause does not protect an accused against revocation of a suspension when that accused offers to make full restitution, knowing full well that he cannot; nor does it protect an accused who fails to take timely and reasonable steps to safeguard his assets so that he can make restitution as promised).
(convening authority was justified in concluding that appellant
bargained in bad faith by misrepresenting his net worth, or that
failed to take reasonable steps to safeguard his assets and convert
cash after he was convicted and sentenced; either is indicative of bad
and supports vacation of appellant’s suspended sentence).