FIRST PRINCIPLESJurisdiction: Of Courts of Criminal Appeals

2020 (October Term)

United States v. Brown, 81 M.J. 1 (Congress created a bifurcated statutory scheme for the appellate review of completed courts-martial, depending upon the sentence approved by the convening authority; a court of criminal appeals exercises jurisdiction over a broad range of cases under Article 66(b), UCMJ, including every case in which the approved sentence extends to a punitive separation or confinement for a year or more unless mandatory review is waived; in this case, because the accused’s sentence was below the Article 66(b), UCMJ, threshold for mandatory review at the lower court, the Article 66(b), UCMJ, pathway to appellate review was unavailable to him; however, Article 69, UCMJ, provided a second pathway to review before a court of criminal Appeals for an accused convicted and sentenced at a special court-martial; cases not reviewed by the lower court pursuant to Article 66(b), UCMJ, such as the instant case tried at a special court-martial, can still be reviewed by the Judge Advocate General upon application of the accused for, inter alia, error prejudicial to the substantial rights of the accused, and the Judge Advocate General can then choose whether to send the case to the lower court for review under Article 66, UCMJ).

(in this case, the CCA had statutory jurisdiction to entertain a writ petition where although appellee’s sentence was not reviewable under Article 66, UCMJ, because he was not sentenced to one year or more of confinement and did not receive a punitive discharge, the TJAG could potentially refer the case for review pursuant to Article 69(d), UCMJ, and thus potential jurisdiction existed for the CCA, even though there were still several conditions precedent to its ultimate review). 

(for courts-martial referred on or after January 1, 2019, pursuant to Article 66(b)(1)(D), an accused is entitled to have the courts of criminal appeals review his case with respect to matters of law if the accused applies for review from a decision of TJAG under Article 69(d)(1)(B) and the application has been granted by the court; thus, it is no longer the case that only those cases that the Judge Advocate General elects to refer to the court of criminal appeals under Article 69(d), UCMJ, may be heard by the lower court).

2017 (October Term)

United States v. Jacobsen, 77 M.J. 81 (military courts, as Article I courts, are courts of special jurisdiction and their authority to act is conferred and strictly confined by statute). 

2014 (September Term)

United States v. Arness, 74 M.J. 441 (the CCAs are courts of limited jurisdiction, defined entirely by statute). 

(the limited jurisdiction of the CCAs is spelled out in two statutes, Articles 66 and 69, UCMJ). 

(under Article 66, UCMJ, the CCA is required to review the record in each trial by court-martial in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more; general court-martial cases not meeting the minimum requirements of Article 66 must be reviewed in the office of the JAG, absent an accused’s waiving or withdrawing from appellate review; if any part of the findings or sentence is found to be unsupported in law or if reassessment of the sentence is appropriate, the JAG may modify or set aside the findings or sentence or both; under limited circumstances, the JAG may also modify or set aside the findings or sentence of cases not reviewed under Article 66 or Article 69). 

(under Article 69, UCMJ, the CCA may review any court-martial case which is subject to action by the JAG under Article 69 and is sent to the CCA by order of the JAG and it may review any action taken by the JAG         under this Article 69 in such case; however, review in such cases is limited to matters of law, unlike the CCA’s normal review under Article 66(c)). 

(where appellant’s approved general court-martial sentence was less than the statutory minimum required to trigger direct review by the CCA and after the JAG determined under Article 69(a), UCMJ, that the findings and sentence were supported in law, and elected not to send the case to the CCA for review under Article 69(d), the CCA concluded that it had jurisdiction to consider appellant’s petition for a writ of error coram nobis; this was error, even though it denied appellant relief; consideration of extraordinary relief is not in aid of the CCA’s jurisdiction, where the CCA had none in the first place; Article 69 does not authorize the CCA to review every case which is subject to action by the JAG pursuant to Article 69; instead, it grants the CCA authority to review any action taken by the JAG under Article 69 in any case that the JAG elects to refer to the CCA; because in this case, the JAG did not refer appellant’s case to the CCA - a statutory prerequisite for its review - the CCA was without jurisdiction to review it; to the extent that McPhail v. US, 1 MJ 457 (CMA 1976) and Unger v. Ziemniak, 27 M.J. 349 (CMA 1989), Dew v. US, 48 MJ 639 (A Ct Crim App 1998), are inconsistent with the opinion in this case, they are overruled). 

2010 (September Term)


United States v. Daly, 69 M.J. 485 (where the governmentís notice of appeal under Article 62 was not timely filed, the CCA was without jurisdiction to consider the governmentís appeal).

2008 (Transition)

Denedo v. United States, 66 M.J. 114 (although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction). 

 

(on direct appeal in courts-martial in which the sentence extends to a punitive discharge, the CCA conducts a de novo review of the findings and sentence approved by the convening authority; any request for coram nobis relief is limited to the findings and sentence of the court-martial reviewed by the CCA; where, as in this case, appellant has raised a claim of ineffective assistance of counsel that goes directly to the validity and integrity of the judgment rendered and affirmed, a petition for writ of error coram nobis was in aid of the existing jurisdiction of the CCA). 

 

(when court-martial jurisdiction has been invoked properly at the time of trial, the jurisdiction of the court of criminal appeals to review the case does not depend on whether a person remains in the armed forces at the time of such review). 


2006


United States v. Politte, 63 M.J. 24 (a Court of Criminal Appeals can only review cases within its statutory jurisdiction; under Article 66, UCMJ, the Courts of Criminal Appeals may hear a case on the merits where:  (1) a Judge Advocate General refers courts-martial records to the court; (2) a convening authority has approved the findings and sentence; and (3) the sentence as approved extends to death, a dismissal, a punitive discharge or confinement for one year or more).

 

(regarding post-trial matters, Courts of Criminal Appeals have jurisdiction to refrain from addressing the merits of a case, and instead return an action to the convening authority if further clarification of the meaning of the action is necessary). 


2003

 

United States v. Riley, 58 MJ 305 (a lower courtís authority on remand is limited by the limitations and conditions prescribed by the remand).

2001

United States v. Erby, 54 MJ 476 (the Courts of Criminal Appeals have authority under Article 66(c), UCMJ, to determine whether a sentence is correct in law, and that authority includes determining on direct appeal if the adjudged and approved sentence is being executed in a manner that offends the Eighth Amendment or Article 55, UCMJ).

1999

Steele v. Van Riper, 50 MJ 89 (issuance of an administrative discharge after trial does not negate the power of the Courts of Criminal Appeals to act on the findings and sentence).


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