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).
1999
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
either
bargained in bad faith by misrepresenting his net worth, or that
appellant
failed to take reasonable steps to safeguard his assets and convert
them to
cash after he was convicted and sentenced; either is indicative of bad
faith
and supports vacation of appellant’s suspended sentence).