2011 (September Term)
United States v. Weeks, 71 M.J. 44 (if an accused’s admissions in the plea inquiry do not establish each of the elements of the charged offense, the guilty plea must be set aside).
2009 (September Term)
United
States v. Trew, 68 M.J. 364 (in this case,
the fatally ambiguous findings,
caused when the military judge changed the “divers occasions” language
to “one
occasion” without clarification, created the possibility that the
reviewing
court would affirm a finding of guilty based on an incident of which
the
appellant had been acquitted by the factfinder at trial; RCM 1102(c)(1)
plainly
prohibits post-trial sessions for reconsideration of a finding of not
guilty to
any specification, or a ruling which amounts to a finding of not
guilty; the
military judge’s ambiguous findings amounted to a not guilty finding on
one of
the instances raised by the “divers occasions” charge; thus, a
post-trial
session to recast the language of the military judge would amount to a
reassessment of a not guilty verdict in violation of double jeopardy;
the
appropriate remedy is to set aside the findings and dismiss the charges
with
prejudice).
United
States v. Smead, 68 M.J. 44 (appellant bears
the burden of establishing
that a term in a PTA is material and that the circumstances establish
governmental
noncompliance; in the event of noncompliance with a material term, an
appellate
court considers whether the error is susceptible to remedy in the form
of
specific performance or in the form of alternative relief agreeable to
appellant; if such a remedy does not cure the defect in a material
term, the
plea must be withdrawn and the findings and sentence set aside).
(a reviewing court may cure a
government breach
of a PTA in several ways: requiring specific performance of the initial
PTA,
providing the appellant with alternative relief, providing an adequate
remedy
to cure the breach, or allowing withdrawal of the pleas).
United
States v. Conliffe, 67 M.J. 127 (any
reviewing authority with the power to approve or affirm a finding of
guilty may
approve or affirm, instead, so much of the finding as
includes a lesser
included offense; an accused may be found guilty of an offense
necessarily
included in the offense charged).
United
States v. McIlwain, 66 M.J. 312 (not every
judicial disqualification error
requires reversal; in determining whether a judge’s disqualification
warrants a
remedy, an appellate court will follow the three-part test announced by
the
Supreme Court in Liljeberg v. Health Services Acquisition Corp.,
486 US
847 (1988): (1) the risk of injustice to
the parties, (2) the risk that the denial of relief will produce
injustice in
other cases, and (3) the risk of undermining public confidence in the
judicial
process).
(reversal is warranted in this
case for the
military judge’s error in denying the defense’s motion to recuse
herself in a
members trial after she declared that her participation in companion
cases
disqualified her from presiding as the trier of fact in a judge-alone
trial,
where the risk of injustice to the parties is high when a judge who has
stated
her bias nonetheless presides over the court-martial, even when she
does not act
as the trier of fact, and where the risk of undermining the public’s
confidence
in the judicial system is most affected; every time the judge made a
decision,
she exercised her discretion - a discretion which she herself had found
was
biased; this could not but produce a corrosive impact on public
confidence in
the military justice system; the guiding consideration is that the
administration of justice should reasonably appear to be disinterested
as well
as be so in fact).
United
States v. Greatting, 66 M.J. 226 (appellant was
entitled to the
relief of reversal of his conviction as a result of the military
judge’s
erroneous failure to recuse himself after his ex parte discussion with
the
convening authority’s SJA in which he provided a critique about the
overall
prosecution of companion cases prior to appellant’s court-martial and
while
clemency matters and appeals in the companion cases were pending;
first, the
record established a risk that the military judge’s conversation with
the SJA adversely
affected appellant’s position in pretrial negotiations; second,
providing
relief in cases such as this [enforcing RCM 902(a)] may prevent a
substantive
injustice in some future case by encouraging a military judge to more
carefully
examine possible grounds for disqualification; and third, the conduct
of the
military judge created the risk of undermining the public’s confidence
in the
military justice system where a judicial officer interfered into
matters
entirely within the discretion of the convening authority and gave the
appearance that he was aligned with the government).
2007
(the CCA did not provide
appellant with meaningful sentence relief under Tardif for unreasonable post-trial
delay in the form of the return of automatic forfeitures when it
disapproved the adjudged bad-conduct discharge that had previously been
remitted
by the convening authority, where that remission action already
satisfied the Article 58b statutory requirement for the return of the
forfeitures).
United States v. Wise, 64 M.J. 468 (where, on the
present record, appellant’s confinement in irons following his
conviction implicated his right to be free from cruel or unusual
punishment and CAAF lacks the necessary facts to determine whether the
use of irons was necessary for safe custody and thus nonpunitive given
the combat context presented, the record of trial must be returned to
the JAG for remand to the court of criminal appeals to resolve the
factual issue of why appellant was confined with irons; if necessary,
that court may order a DuBay hearing; if the court of
criminal appeals orders further fact-finding and the convening
authority determines that such fact-finding is impracticable, the
convening authority may resolve the matter and moot the necessity for
further fact-finding by awarding appellant confinement credit for the
period of time he was confined in irons).
United States v. Beatty, 64 M.J. 456 (remand to the
court of criminal appeals for a proper factual and legal sufficiency
review of the findings of guilty of indecent liberties with a child and
indecent acts with a child was the appropriate remedy, where the
assessment of the alleged victim’s credibility by the court of criminal
appeals was at best ambiguous; from the record, the Court of Appeals
for the Armed Forces could not determine whether the court of criminal
appeals in fact considered evidence from outside the record – that is,
whether it considered the alleged victim’s testimony in pretrial motion
practice or in presentencing on the issue of her credibility).
(in a case where the
underlying validity of the Article 66(c), UCMJ, review is in question,
the Court of Appeals for the Armed Forces does not test for prejudice;
rather, the remedy is to remand the case for a proper factual and legal
sufficiency review of the findings of guilty).
United States v. Tate, 64 M.J. 269 (by its terms, RCM
705(c)(1)(B) provides that an impermissible term or condition in a
pretrial agreement shall not be enforced; in some cases, the presence
of an impermissible term requires an appellate court to void the entire
agreement and authorize a rehearing; in other cases, an impermissible
term may be treated as null without impairing the remainder of the
agreement; in the present case, in view of the agreement of both
parties on this matter, the terms and conditions that would deprive
appellant of parole and clemency consideration under generally
applicable procedures may be stricken without impairing the balance of
the agreement and the plea).
2006
United
States
v. Rodriguez-Rivera, 63 M.J. 372 (even assuming that the delay of
over six
years to complete appellant’s appeal of right denied him his right to
speedy
review and appeal, no additional relief is appropriate or warranted
where
appellant had served his full term of confinement and reduction of
adjudged
forfeitures would have no meaningful effect in light of the provisions
for
automatic forfeitures; in addition, reducing the period of confinement
enough
to have a significant impact upon collected forfeitures would also
require a
dramatic reduction in the period of confinement that is unwarranted
under the
circumstances of this case; to fashion relief that would be actual and
meaningful in this case would be disproportionate to the possible harm
generated
from the delay).
United
States v. Harvey, 64 M.J. 13 (dismissal is a drastic remedy and
courts must
look to see whether alternative remedies are available).
(dismissal of charges is
permissible when
necessary to avoid prejudice against the accused and the findings of
fact of
the military judge document the prejudice to the accused from the
egregious
error in the case).
(the appropriate remedy for
the failure
of a military judge to shift the burden to the government after the
issue of
unlawful command influence was raised by the presence of the convening
authority in the courtroom during closing arguments on findings was to
set
aside the findings and sentence without prejudice, thereby permitting a
rehearing, rather than remand the case for a DuBay hearing,
where the
error involved the fundamental fairness of the court-martial and where
almost
seven years had elapsed since the court-martial panel’s deliberations
due to
excessive and unreasonable post-trial delay).
(the appropriate remedy for a
denial of
speedy appellate review where a rehearing was authorized and there was
presently no direct meaningful sentence relief that could be provided
appellant
was to afford appellant relief by limiting the sentence that may be
approved by
the convening authority should a rehearing result in a conviction and a
new
sentence).
United
States v. Shelton, 64 M.J. 32 (the only appropriate remedy
available to
address the military judge’s erroneous evidentiary ruling in the
context of a
conditional guilty plea that reserved to appellant the right to appeal
his
pretrial motion to suppress and to withdraw his guilty plea if
successful on
appeal was to allow appellant to withdraw his guilty plea).
United
States v. Lewis, 63 M.J. 405 (dismissal is a drastic remedy and
courts must
look to see whether alternative remedies are available; dismissal of
charges
with prejudice, however, is an appropriate remedy where the error
cannot be
rendered harmless).
(the appropriate remedy to
cure the
actual and apparent unlawful command influence arising from the
orchestrated
efforts of the trial counsel and the staff judge advocate to force the
recusal
of the military judge is the drastic one of reversing the decision of
the lower
court, setting aside the findings and sentence, and dismissing the
charges with
prejudice; this is the only remedy to cure the unlawful command
influence and
ensure the public perception of fairness in the military justice
system).
United
States v. Quintanilla, 63 M.J. 29 (the improper exclusion of a
member for
being opposed to capital punishment does not result in an
unrepresentative
panel on the issue of guilt or substantially increase the risk of
conviction;
consequently, in this case, where the military judge erroneously
granted a
government challenge for cause because of the judge’s concerns
regarding the
member’s ability to impose the death penalty, the appropriate remedy
was an
affirmance of the findings but a reversal of the sentence; here, the
military judge’s
erroneous ruling had no impact on the defense’s right to exercise its
single
peremptory challenge, and there was no allegation that any of the
members who
sat on the panel held a bias against appellant or otherwise should have
been
disqualified).
2005
United
States v. Jones, 61 M.J. 80 (where a case involves a finding of
legal error
accompanied by Article 59(a) prejudice, this Court may order a remedy
ourselves
rather than remanding the case for that purpose; formulating such a
remedy is
an exercise of authority under Article 59(a) to eliminate material
prejudice to
appellant’s due process rights; it is entirely distinct from the lower
court’s
Article 66(c) sentence appropriateness powers).
(denial of the right to speedy trial results in dismissal of the
charges only
if reversible trial errors occurred and it is impossible to cure those
errors
at a rehearing because of the excessive post-trial delay).
(appellate courts are not limited to either tolerating the intolerable
or
giving an appellant a windfall; rather, in cases involving unreasonable
post-trial delay, courts should tailor an appropriate remedy, if any is
warranted, to the circumstances of the case).
(in this case, an appropriate remedy is to disapprove the bad-conduct
discharge, where appellant pleaded guilty, and nothing that has
occurred since
trial has suggested that the findings were not accurate; setting aside
the
findings would be a windfall for appellant; setting aside the
bad-conduct
discharge is a remedy more proportionate to the prejudice that the
unreasonable
post-trial delay has caused; the post-trial delay has had an adverse
effect on
appellant’s ability to find employment; removing the bad-conduct
discharge’s
adverse effect on appellant’s employment opportunities may help to
restore him
to the position he would have been in had the post-trial review been
accomplished with reasonable speed).
United
States v. Scheurer, 62 M.J. 100 (because double jeopardy principles
would
bar any rehearing on incidents of which appellant was found not guilty,
and
because ambiguous findings preclude distinguishing incidents that
resulted in
acquittal from the single incident that resulted in a conviction, the
remedy
for a Walters [58 M.J. 391 (C.A.A.F. 2003)] violation is to set
aside
the finding of guilty to the affected specification and dismiss it with
prejudice).
2004
United
States v. Gore, 60 MJ 178 (we have long held that
dismissal is
a drastic remedy and courts must look to see whether alternative
remedies are
available; when an error can be rendered harmless, dismissal is not an
appropriate remedy; dismissal of charges is appropriate when an accused
would
be prejudiced or no useful purpose would be served by continuing the
proceedings).
2003
United
States v. Holt, 58 MJ 227 (where appellant did not
receive
a proper legal review under Article 66(c), UCMJ, the remedy is a remand
to the
Court of Criminal Appeals for a proper review).
2002
United
States v. Quintanilla, 56 MJ 37 (there is a
three-part
test for determining whether reversal of a conviction or decision
should be
granted as a remedy when a judge has failed to recognize that his or
her
disqualification was required because the judge’s impartiality might
reasonably
be questioned: the reviewing court will consider (1) the risk of
injustice to
the parties in the particular case, (2) the risk that denial of relief
will
produce injustice in other cases, and (3) the risk of undermining the
public’s
confidence in the judicial process).
United
States v. Butcher, 56 MJ 87 (there is no mandated
particular remedy for situations in which an appellate court determines
that
the military judge should have removed himself or herself from a case).
(there is a three-part test for determining whether reversal of a
conviction
or decision is warranted as a remedy when a judge has erred in failing
to
recognize that disqualification was required because the judge’s
impartiality
might be questioned: the reviewing court will consider (1) the
risk of
injustice to the parties in the particular case, (2) the risk that
denial of
relief will produce injustice in other cases, and (3) the risk of
undermining
the public’s confidence in the judicial process).
United
States v. Sills, 56 MJ 239 (the intermediate
appellate
courts are authorized to order sentence-only rehearings; Jackson v.
Taylor,
353 U.S. 569 (1957), is not to the contrary. See United
States
v. Miller, 10 USCMA 296, 27 CMR 370 (1959)).
United
States v. Pinson, 56 MJ 489 (interference with the
attorney-client privilege does not per se require the drastic
remedy of
reversal).
(interference with the attorney-client privilege may warrant
reversal where
the invasion impacted on the attorney’s performance or resulted in the
disclosure of privileged information at the time of trial; factors to
consider
include: (1) whether an informant testified at the accused’s
trial as to
the conversation between the accused and his attorney; (2) whether the
prosecution’s evidence originated in these conversations; (3) whether
the
overheard conversations were used in any other way to the substantial
detriment
of the accused; or (4) whether the prosecution learned from the
informant the
details of the conversations about trial preparations).
(Even where there is an unjustified invasion into the
attorney-client
relationship, such as where agents meet with a defendant who is known
to be
represented by an attorney, without defense counsel’s knowledge or
permission,
remedial action must be tailored to the injury suffered; where there is
no
prejudice of any kind, either transitory or permanent, to the ability
of
counsel to provide adequate representation in these criminal
proceedings, there
was no justification for such drastic relief as a dismissal with
prejudice).
(The remedy for an unjustified invasion into the attorney-client
relationship in the criminal proceeding is limited to denying the
prosecution
the fruits of its transgression).
(reversal is not required for alleged unjustified invasion into the
attorney-client relationship where: (1) there was a legitimate search
of
appellant’s quarters; (2) there was no direct interference with the
attorney-client relationship; (3) no direct evidence was used at trial;
(4)
even though two privileged documents were used to analyze appellant’s
handwriting, an individual has no expectation of privacy in his
handwriting;
and (5) the government’s case was based on independent evidence).
2000
United
States v. Harris, 53 MJ 86 (where disapproval of
certain
offenses reduced the maximum period of confinement from life to 18
months, such
a vast disparity between the maximum punishments for the offenses
dismissed and
those affirmed made it impossible for a court to ascertain that
appellant’s
sentence would have been no greater than a bad-conduct discharge and
ten months
confinement absent the dismissed offenses; this case presents one of
those
occasions when the only fair course of action is to have an accused
resentenced
at the trial level).
United
States v. Sapp, 53 MJ 90 (Article 59(a), UCMJ,
provides
for the general power of reviewing authorities to approve or affirm
only so
much of a finding as includes a lesser-included offense).
(an appellate court may affirm a lesser-included offense where a
guilty plea
to an original greater charge cannot be sustained - factors to consider
in
doing so include: (1) whether the appellant had been placed on
notice of
the lesser charge; (2) whether the appellant admitted the elements
necessary to
sustain the lesser offense during the providence inquiry; and (3)
whether the
lesser and greater offenses were closely related to one another).
United
States v. Augustine, 53 MJ 95 (Article 59(a),
UCMJ,
provides for the general power of reviewing authorities to approve or
affirm
only so much of a finding as includes a lesser-included offense).
United
States v. Yunk, 53 MJ 145 (in a “Judgement of the
Court”
(two judges agreeing), the action of the Court of Criminal Appeals,
which
granted appellant relief for 11 days of illegal pretrial confinement by
reducing the adjudged and approved forfeitures, was affirmed despite
the fact
that the reduction in forfeitures provided no “meaningful” relief in
light of
automatic forfeitures; there was no abuse of discretion in declining to
set
aside the punitive discharge or otherwise massively reduce the various
sentencing components).
United
States v. Davis, 53 MJ 202 (failure to instruct on
lesser-included offense of negligent homicide was error that required
setting
aside appellant’s conviction of involuntary manslaughter because the
members
were never instructed to consider two possible causes for infant’s
death, and
thus the members did not address whether appellant’s negligence in any
form –
not attaching the vehicle seatbelt to an infant car seat, not properly
fastening the straps to car seat, or negligently shaking the infant –
was the
cause of the child’s injuries and death).
United
States v. Becker, 53 MJ 229 (dismissal of charges
is not
an appropriate remedy for a speedy trial violation at a sentence-only
rehearing
where an accused’s guilt already has been determined and affirmed on
appeal,
and where the only remaining determination is the sentence).
1999
United
States v. McLaughlin, 50 MJ 217 (1999) (appellant is not
entitled to
relief on appeal from impermissible term of pretrial agreement waiving
speedy
trial issue absent prima facie showing or colorable claim of
entitlement
to relief, such as a showing of prejudice, demand for speedy trial, or
lack of
due diligence).
United
States v. Lee, 50 MJ 296 (1999) (errors in post-trial
processing create
records that are not ready for appellate review and, when called to the
attention of the Court of Criminal Appeals, preferably should be
returned to
the convening authority because it is that official’s duty to consider
what
action is appropriate under the circumstances; otherwise, immediate
corrective
action should be taken at the Court of Criminal Appeals).
United
States v. Abrams, 50 MJ 361 (1999) (where military judge
examined
personal personnel records in camera, but those records were
not sealed
and attached to the record of trial, proper appellate review is
impossible;
case was remanded to the court below with an order to produce the
missing
records).
United
States v. Miley, 51 MJ 232 (1999) (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).
2010 (September Term)
United States v. Hull, 70 M.J. 145 (in the course of considering action under Article 60 in the face of newly discovered evidence, the convening authority has options other than considering a rehearing on the findings and sentence; the convening authority also has the power to address post-trial developments by returning the record for a limited post-trial hearing before the military judge under Article 39(a)).
1999
United States v. Sherman, 51 MJ 73 (where post-trial submissions from appellant, defense counsel, and trial counsel raise factual dispute about (1) whether there was a sub rosa agreement not to raise motions concerning unlawful command influence and illegal pretrial confinement, (2) whether appellant gave untruthful answers to trial judge, (3) whether defense counsel knew that appellant’s answers were untruthful, and (4) whether other matters suggesting unlawful command influence were correct, there were too many unresolved questions in the record for the court to affirm; case remanded for a fact-finding hearing on specified issues).
United States v. Haagenson, 52 MJ 34 (where a claim that unlawful command influence pressured a commander to change his discretionary referral decision was supported by affidavit sufficient to raise such issue, and the claim was neither inadequate on its face nor conclusively refuted by the files and records of the case, a factfinding hearing is necessary).
1999
United States v. Diaz-Duprey, 51 MJ 168 (1999) (where
appellant made a colorable claim of ineffective assistance of counsel,
in light of United
States v. Ginn, 47 MJ
236 (1997), an evidentiary hearing was necessary to resolve the issue).
Rehearing:
2010 (September
Term)
United States v. Hull, 70 M.J. 145 (a convening authority is authorized to modify the findings and sentence of a court-martial as a matter of command prerogative involving the sole discretion of the convening authority; when taking action on the results of trial, the convening authority may order a rehearing as to some or all offenses of which findings of guilty were entered and the sentence, or as to sentence only).
(in practical terms, a rehearing in full ordered by a convening authority under Article 60 involves the same trial-stage procedures as a new trial ordered by the Judge Advocate General or appellate courts under Article 73, UCMJ; the convening authority’s power to order a rehearing under Article 60, however, differs in a number of significant respects from the authority to order a new trial under Article 73 by the Judge Advocate General and appellate courts; a petition under Article 73 may be submitted at any time within two years after approval by the convening authority of a court-martial sentence on the grounds of newly discovered evidence or fraud on the court, and is subject to the standards and criteria set forth in RCM 1210; by contrast, the convening authority, who may order a full or partial rehearing when taking post-trial action on the case as a matter of command prerogative, is not limited by the standards and criteria of Article 73 and RCM 1210).
(in the course of considering action under Article 60 in the face of newly discovered evidence, the convening authority has options other than considering a rehearing on the findings and sentence; the convening authority also has the power to address post-trial developments by returning the record for a limited post-trial hearing before the military judge under Article 39(a)).
(where the defense in this case submitted a post-trial request for a rehearing invoking the new trial criteria of RCM 1210 and the SJA then proceeded to address the defense request on the terms raised by the defense, in that context, it was not inappropriate for the SJA to apply the criteria set forth in RCM 1210 by analogy to the rehearing request; although the SJA might have added further information concerning the distinction between a “new trial” ordered during appellate review under Article 73, and a “rehearing” ordered by a convening authority under Article 60, omission of that information did not constitute error in the context of the defense request).
(requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored, and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence).
(when advising the convening authority on a defense post-trial request for a rehearing based on newly discovered evidence that a witness had been told by the alleged rape victim that her encounter with appellant had been consensual, the SJA was not obligated to inform the convening authority about the possibility of ordering a post-trial Article 39(a) session for the purpose of compelling that witness or any other to appear and give sworn testimony, where there was an absence of a defense request for such a post-trial Article 39(a) session, and in light of the vague nature of the unsworn information provided by the defense).
(in light of the nature of the defense’s request for a rehearing based on newly discovered evidence and the absence of a defense request for a post-trial Article 39(a) session, the SJA did not misadvise the convening authority by noting that the newly discovered evidence fell within the parameters of RCM 1210, but then recommending against granting a rehearing; viewed in its entirety, the SJA’s recommendation did not take the position that a new trial was required under the criteria set forth in RCM 1210; instead, the recommendation made clear that the SJA was advising the convening authority that the defense evidence could be considered under the criteria of RCM 1210, but that the nature of the evidence did not warrant a new trial under those criteria; as such, the convening authority did not abuse her discretion in approving the findings and sentence and not ordering a rehearing).
2006
(the language of the
discussion to RCM
1005(e)(1) appears to limit the sentence at a rehearing to that which
was
adjudged by a prior court-martial or approved on review; however, this
discussion has not been changed since it appeared in the MCM, and does
not
reflect the 1992 amendment to Article 63, UCMJ, and is inconsistent
with the
substance of the 1995 amendment to RCM 810(d); in any event, this
discussion
is non-binding and not controlling over specific provisions of the
UCMJ).
(the authority of a rehearing
to adjudge
a sentence is limited only by the maximum authorized sentence for the
offenses
of which the accused has been found guilty or the jurisdictional
maximum of the
court-martial; at a rehearing, the sentencing body, whether members or
military
judge, should consider the evidence in aggravation, extenuation, and
mitigation
in light of the allowable maximum sentence for the findings of guilty
and
adjudge an appropriate sentence; the burden of protecting an accused
against
higher sentences rests with the convening authority at the time action
is taken
on an adjudged sentence from a rehearing).
United
States v. Buber, 62 M.J. 476 (in this case, the sentencing
landscape
changed dramatically as a result of the CCA’s decision; there were no
longer
findings of murdering and assaulting a child; there was no longer a
maximum sentence
that included confinement for life without eligibility for parole;
instead, the
sentencing body now had before it a single false official statement and
a
maximum sentence that included only five years of confinement; in light
of this
dramatic change in the sentencing landscape, the only fair course of
action was
to order a sentence rehearing).
2003
United
States v. Riley, 58 MJ 305 (the court members
considered a
maximum sentence including life imprisonment but imposed a term of 25
years;
the maximum term of confinement is now three years; the offense has
been
reduced from an intentional killing to an act of simple negligence
resulting in
death; in light of the dramatic change in the penalty landscape in this
case,
we do not believe that an appellate court can reliably determine what
sentence
the members would have imposed; we conclude that the only fair course
of action
is a sentencing rehearing).
2002
United
States v. Doss, 57 MJ 182 (if the court cannot
reliably
determine what sentence would have been imposed at the trial level if
the error
had not occurred, then a sentence rehearing is required).
1999
United
States v. Allen, 50 MJ 84 (1999) (After consolidating three
rape
specifications, rehearing on sentence was not necessary where: (1)
evidence
indicated that intercourse occurred “more than once” rather than on
specific
dates; (2) the multiple findings did not increase the maximum
punishment; (3)
the sentence adjudged included offenses other than rape and was well
below the
maximum; and (4) Court was confident that members sentenced appellant
based on
evidence of the course of conduct reflected in the consolidated
specification).
United
States v. Davis, 50 MJ 426 (1999) (although the remedy for an
illegal
pretrial agreement that violated the prohibitions of United States v.
Bertelson, 3 MJ 314 (CMA 1977), would be to permit this
appellant to
present
evidence at a rehearing, such relief was not warranted where appellant
proffered no evidence that was precluded by the pretrial agreement and
no
evidence of government overreaching).
United States v. Curtis, 52 MJ 166 (1999) (Court of Criminal Appeals is not required to consider a rehearing on sentence unless it determines that it cannot reliably reassess the sentence, i.e., be convinced that appellant’s sentence would have been at least of a certain magnitude).
Remand:
2010 (September Term)
United States v. Lusk, 70 M.J. 278 (in a prosecution for wrongful use of cocaine, remand was necessary to the court of criminal appeals to determine if a military judge’s error was harmless in failing to give a limiting instruction concerning the appropriate use of inadmissible evidence used by an expert witness in formulating his opinion on the reliability of a laboratory test report).
2009 (September Term)
United
States v. Campbell, 68 M.J. 217 (failure of the
court of criminal appeals to
recognize that the military judge had consolidated two specifications
of
violating a general order, rather than two specifications of possessing
child
pornography required remand for sentence reassessment)
2002
United
States v. Washington,
No. 01-0658 (if the decision of the Court of Criminal Appeals raises
substantial questions as to whether there has been an appropriate
allocation of the burden, Court of Appeals for the Armed Forces cannot
rely on the presumption that the court below applied the law correctly,
and a remand is required to ensure that the court below applies a level
playing field).
United
States v. Moffeit, 63 M.J. 40 (a court of criminal appeals, in
dismissing a
charge, may reassess the sentence and that sentence must be equal to or
no
greater than a sentence that would have been imposed if there had been
no
error; thus, if the court can determine to its satisfaction that,
absent any
error, the sentence adjudged would have been of at least a certain
severity,
then a sentence of that severity or less will be free of the
prejudicial
effects of error; however, if the error at trial was of constitutional
magnitude, then the court must be satisfied beyond a reasonable doubt
that its
reassessment cured the error).
(the CCA did not abuse its
discretion in
concluding that it could determine to its satisfaction that, absent any
error,
the adjudged sentence for the remaining offense would have been at
least the
severity of the sentence that the court approved on reassessment where
the CCA
had extensive experience with the level of sentences imposed for such
an
offense, where a substantial maximum was still available, where the
reassessed
sentence was well below that maximum, and where the remaining charge
was the
most serious offense and had a negative impact in the community).
United
States v. Buber, 62 M.J. 476 (a CCA can reassess a sentence to cure
the
effect of prejudicial error where that court can be confident that,
absent any
error, the sentence adjudged would have been of at least a certain
severity;
where the CCA can be so convinced, then that court may reassess and
affirm only
a sentence of that magnitude or less).
(if the CCA can determine to
its
satisfaction that, absent any error, the sentence adjudged would have
been of
at least a certain severity, then a sentence of that severity or less
will be
free of the prejudicial effects of error; and the demands of Article
59(a) will
be met; of course, even within this limit, the CCA will determine that
a
sentence it proposes to affirm will be appropriate, as required by
Article
66(c), UCMJ; in short, a reassessed sentence must be purged of
prejudicial
error and also must be appropriate for the offense involved).
(to validly reassess a
sentence to purge
the effect of error, a CCA must be able to make a number of
determinations; it
must be able to discern the extent of the error’s effect on the
sentence; the
reassessment must be based on a conclusion that the sentence that would
have
been imposed at trial absent the error would have been at least of a
certain
magnitude; this conclusion about the sentence that would have been
imposed must
be made with confidence; no higher sentence than that which would have
been
imposed by the trial forum may be affirmed; and a dramatic change in
the
penalty landscape gravitates away from the ability to reassess).
2002
United
States v. Doss, 57 MJ 182 (Court of Appeals for
the Armed
Forces will overturn the lower court’s sentence reassessment only to
prevent
obvious miscarriages of justice or abuses of discretion).
(a Court of Criminal Appeals may properly reassess a sentence if the
court
can determine that, absent the error, the sentence would have been at
least of
a certain magnitude, then it may cure the error by reassessing the
sentence
instead of ordering a sentence rehearing; a sentence of that magnitude
or less
will be free of the prejudicial effects of error).
(if the error at trial was of constitutional magnitude, then the
court must
be satisfied beyond a reasonable doubt that its sentence reassessment
cured the
error).
(in a situation in which the inadequacy of counsel has resulted in
the
omission of evidence that, under the standards of Strickland v.
Washington, 466
U.S. 668 (1984), could have made a difference in the sentence imposed
if it had
been made a matter of record, the Court of Criminal Appeals cannot
reassess the
sentence accurately because the record is not complete).
(defense counsel’s ineffective representation during sentencing made
it
impossible to reliably reassess the sentence, because: (1) 19
pages of
medical documentation submitted to the convening may be only the tip of
the
iceberg; (2) the significance of those 19 pages cannot be fully
appreciated
without expert testimony; and (3) it is impossible to determine what
evidence a
competent defense counsel would have presented).
(the Court of Criminal Appeals abused its discretion by reassessing
the
sentence instead of ordering a rehearing because it was impossible to
determine
what evidence would have been presented by competent counsel; thus,
civilian
defense counsel’s omissions could not be rendered harmless beyond a
reasonable
doubt by sentence reassessment).
United
States v. Spaustat, 57 MJ 256 (even if appellant
should
have been released from confinement on December 10 instead of December
27, the
additional days of confinement do not warrant granting his request to
set aside
his bad-conduct discharge).
2001
United
States v. Vasquez, 54 MJ 303 (where appellant was
prejudiced by the erroneous introduction of an admission of guilt to
unauthorized absence made in conjunction with a request for
administrative
separation in lieu of court-martial (Mil. R. Evid. 410), it could not
be
reliably determined that the military judge would have imposed a
bad-conduct
discharge in the absence of the evidence of the 212-day unauthorized
absence;
consequently, Court of Criminal Appeals could not reassess and affirm
the bad-conduct
discharge).
United
States v. Riley, 55 MJ 185 (if a Court
of
Criminal Appeals determines that a finding of guilty should not be
affirmed,
for either legal or factual reasons, that determination means that the
appellant has been wrongly convicted and is entitled to sentence
reassessment
or rehearing under the principles announced in United States v.
Sales,
22 MJ 305 (CMA 1986)).
2000
United
States v. Eversole, 53 MJ 132 (when a Court of
Criminal
Appeals reassesses a sentence due to some error in the proceedings,
that court
affirms, if it feels it can, only so much of the sentence as would have
been
imposed at the original trial absent the error; the Court of Appeals
for the
Armed Forces will not disturb that reassessment, except to prevent
obvious
miscarriages of justice or abuses of discretion).
(in light of some unique circumstances, Court of Appeals for the
Armed
Forces set aside Court of Criminal Appeals’ reassessment of a sentence
where
majority was “at a loss to know how any appellate authority could know,
with
any degree of certainty, what a trial court would have done regarding
the
punitive discharge under these circumstances”).
United
States v. Wilson, 54 MJ 57 (because of the highly
discretionary nature of the convening authority’s action on the
sentence, court
will grant relief if an appellant presents some colorable showing of
possible
prejudice as a result of a cognizable error in the SJA’s post-trial
recommendation).
1999
(Court of
Criminal Appeals did not abuse its discretion by reassessing sentence
to purge the prejudicial impact of error where that court used its
military experience and expertise to determine that a fraternization
offense [for permitting a breach of military courtesy], which that
court dismissed, was trivial in light of remaining use of marijuana
offense, and where that court determined appellant’s sentence would be
at least the same as the adjudged sentence).
United States v. Taylor,
51 MJ 390 (Courts of Criminal Appeals may exercise their discretion to
cure the prejudicial impact of error by reassessing the sentence if
that court can say with confidence that the sentence would have been at
least of a certain magnitude even though the sentence reassessing
authority may not be able to determine with precision the exact
sentence that would have been adjudged absent the error).
(based upon the original charges and facts of this case, Court of
Criminal Appeals did not abuse its discretion by reassessing sentence
to cure the prejudicial impact of error and determining that the
minimum sentence would have at least included a punitive discharge).
United States v. Kerr,
51 MJ 401 (Court of Criminal Appeals did not abuse its discretion in
determining that appellant’s sentence would have been the same even if
he had been convicted on only one of two virtually identical,
multiplicious specifications alleging the same act).
United States v. Curtis,
52 MJ 166 (the plain language of Article 66(c), UCMJ, its legislative
history, and the precedents of the Supreme Court and Court of Appeals
for the Armed Forces provide ample authority for the Courts of Criminal
Appeals to cure an error in the imposition of the death sentence by
reassessing the sentence to life imprisonment).
(Court of Criminal Appeals did not abuse its discretion by reassessing sentence to confinement for life rather than authorizing rehearing at which sentence of death would be available since that court could discern that the sentence would have been at least life imprisonment, the statutory minimum for the offenses involved).