Action on sentence after a court-martial

Overview of what action on sentence must do

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Explicitly state approval or disapproval.

In the case of the United States v. Wilson, 65 MJ 140 (CAAF 2007). The court will not look for ambiguity where there is none. Action said: “In the case of . . . that part of the sentence extending to confinement in excess of 3 years and three months is disapproved. Except for the Dishonorable Discharge, the remainder of the sentence is approved and will be executed.” SJAR and addendum recommended approval of the adjudged DD, and that is what the CA intended to do. Still, CAAF found the language of the action unambiguous in its disapproval of the DD. The court refused to look at surrounding documents to find an ambiguity where the action appeared clear on its face.

In the case of the United States v. Schiaffo , 43 M.J. 835 (A. Ct. Crim. App. 1996). The action did not expressly approve the BCD, though it referred to it in “except for” executing language. Sent back to CA for new action. Action said: “In the case of . . . only so much of the sentence as provides for a reduction to Private E1, forfeiture of $569.00 pay per month for six months, and confinement for four months is approved and, except for the part of the sentencing extending to a bad-conduct discharge, will be executed.” See also In the case of the United States v. Reilly, No. 9701756 (A. Ct. Crim. App. June 12, 1998) (unpublished); In the case of the United States v. Scott, No. 9601465 (A. Ct. Crim. App. June 12, 1998) (unpublished); In the case of the United States v. Politte, 63 MJ 24 (CAAF 2006); and, In the case of the United States v. Gosser, 64 MJ 93 (CAAF 2006).

In the United States v. Klein case, 55 MJ 752 (N-M. Ct. Crim. App. 2001). Action by CA stated: “In the case of . . . the sentence is approved, but the execution of that part of the sentence extending to confinement in excess of 28 days was suspended for four months from the date of trial . . . Likewise, the part of the sentence extending to the bad conduct (sic) discharge will be suspended for 12 months from the date of trial. At that time, unless the suspension is sooner vacated, it will be remitted without further action.” After the appellate court acquired jurisdiction, CA attempted to withdraw the first action and replace a second wherein the punitive discharge was not suspended, stating he never intended to stop the discharge. Held: “administrative oversight” as opposed to “clerical error” in CA’s action does not warrant a return to the CA for a corrected action.

Additionally, any purported action by the CA after an appellate court acquires jurisdiction is a nullity. The NMCCA distinguishes this case from In the case of the United States v. Smith, 44 MJ 788 (N-M. Ct. Crim. App. 1996), stating “[u]nlike Smith, and there is nothing ‘illegal, erroneous, incomplete or ambiguous in the original action.” Id . at 756.

In the case of the United States v. Mendoza , 67 M.J. 53 (C.A.A.F. 2008). The lower court (NMCCA) had sent the case back for a new Action because the language was ambiguous and not susceptible to interpretation. First Action stated: “only such part of the sentence as provides for a reduction to the grade of pay E-1, confinement for 90 days, is approved and except for the part of the sentence extending to a bad conduct [sic] will be executed.” CA, who signed the original action, had moved on. His successor in command took a new action that approved the BCD. No new SJAR was prepared, and there was no evidence the CA consulted with the original CA before action. The CAAF holds that a “new, as opposed to a corrected” action requires a new SJAR and the opportunity for the accused to submit additional matters under RCM 1105.

Cannot increase the adjudged sentence.

In the United States v. Jennings, 44 MJ 658 (CG Ct. Crim. App. 1996). MJ announced a five-month sentence but did not expressly include pretrial confinement (PTC) credit. After the issue was raised, MJ said on record that he had “considered” the eight days PTC before announcing the sentence, and the SJA recommended that the CA approve the sentence as adjudged (he did). “Further clarification by the judge was needed to dispel the ambiguity . . . created by his remarks.” Thus, SJA “should have returned the record to the judge for clarification under RCM 1009(d), rather than attempt to dispel the ambiguity of intent himself.” “In any event, there is no authority whatsoever for a staff judge advocate to make an upward interpretation of the sentence, as was done in this case.” Id . at 662.

Return the case to the CA for a new SJAR and action to clarify the ambiguity, or (2) to construe the ambiguity itself and resolve any inconsistencies in favor of the appellant. The court chose the latter and affirmed only so much of the sentence as provided for a BCD, three-month confinement, and reduction to E-1.

In the United States v. Kolbjornsen, 56 MJ 805 (CG Ct. Crim. App. 2002). Appellant was sentenced to a DD, twelve months confinement, and reduction to E-1. The pretrial agreement required the CA to suspend any confinement over ten months. At the action, the CA approved “only so much of the sentence as provides for a BCD, confinement for three months, and reduction to E-1.” On appeal, the court noted the ambiguity of the action and stated it had two options:

In the United States v. Shoemaker case, 58 MJ 789 (AF Ct. Crim. App. 2003). At action the first time, the CA approved only thirty days confinement of a three-month sentence. As a result, the action was set aside on appeal, and the case was returned for a new SJAR and action. In the subsequent action, the CA approved a sentence of one month. Unfortunately, seven months out of the year contain thirty-one days resulting in a potential sentence greater than originally approved, in violation of RCM 810(d). Therefore, the court only approved thirty days confinement rather than return the case for a third SJAR and action.

In the case of the United States v. Mitchell, 58 MJ 446 (CAAF 2003). Appellant was sentenced to a BCD, ten years confinement, total forfeitures, and reduction to E-

On appeal, the ACCA ordered a rehearing of the sentence. On rehearing, the appellant was sentenced to a DD, six years confinement, and reduction to E-1. The ACCA affirmed the rehearing sentence finding that under an objective standard, a reasonable person would not view the rehearing sentence as “over or more severe than” the original sentence; therefore, Article 63, UCMJ, and RCM 810(d)(1) were not violated. The CAAF reversed as to sentence, finding that a DD is more severe than a BCD and no objective equivalence is available when comparing a punitive discharge with confinement. The CAAF reduced the sentence to a bad-conduct discharge, six years confinement, and a reduction to E-1.

In the case of the United States v. Burch, 67 MJ 32 (CAAF 2008). Appellant was sentenced to confinement for one year, reduction to E-1, and a bad-conduct discharge. The CA suspended all confinement in excess of 45 days. After his release, but before the suspension period or the CA took action, the appellant committed additional misconduct. His suspension was properly vacated, and he was returned to confinement. The CA took action, which stated: “execution of that part of the sentence adjudging confinement in excess of 45 days is suspended for 12 months.” Appellant served approximately 223 days of confinement before being released. The CAAF held that this was illegal confinement. “If the CA’s action is to be given effect, as required by RCM 1107, attendant circumstances preceding the action may not be utilized to undermine it.” The vacation of the suspension should have been noted in action.

RCM 1107(d)(1). May disapprove all or any part of a sentence for any or no reason.

In the case of the United States v. Bono, 26 MJ 240 (CMA 1988). Reduction in sentence saved the case when DC was found to be ineffective during sentencing.

In the United States v. Smith case, 47 MJ 630 (A. Ct. Crim. App. 1997). At a GCM, the accused was sentenced to total forfeitures (TF) but no confinement. Neither the DC nor the accused submitted a request for waiver or deferment nor complained about the sentence. The accused did not go on voluntary excess leave. Fourteen days after the sentence, TF went into effect. At the action, the CA tried to suspend all forfeitures beyond 2/3 until the accused was placed on involuntary excess leave. Held: CA’s attempt to suspend was invalid because the TF was executed (at 14 days) before the attempted suspension. The ACCA found that the time the accused spent in the unit (July 5 to August 19) without pay was cruel and unusual punishment and directed the accused to restore 1/3 of her pay. See also In the case of the United States v. Warner, 25 MJ 64 (CMA 1987).

RCM 1107(d)(2). May reduce a mandatory sentence adjudged.

May change a punishment to one of a different nature if less severe in the United States v. Carter, 45 MJ 168 (CAAF 1996). CA lawfully converted panel’s BCD and twelve-month sentence to twenty-four additional months’ confinement and no BCD, acting in response to request that accused be permitted to retire. Commutation must be clemency, “not ‘merely a substitution’” of sentences, but was proper here; BCD was disapproved and accused got his wish to retire, and where, importantly, he neither set any conditions on the commutation ( e.g ., setting a cap on confinement he was willing to endure) nor protested the commutation in his submission to the CA. But consider the discussion to RCM 1107(d)(1) that a BCD could be converted to confinement for up to one year at a special court-martial.

May suspend a punishment in the case of the United States v. Barraza, 44 MJ 622 (N-M. Ct. Crim. App. 1996). The court approved CA’s reduction of confinement time from PTA-required forty-six months (suspended for twelve months) to fourteen months, six days (suspended for thirty-six months). The sentence was for ten years. Court emphasized the “sole discretionary power” of CA to approve or change punishments “as long as the severity of the punishment is not increased” ( citing RCM 1107(d)(1)). Also significant is that approved confinement was twenty-two months less than the accused sought in his clemency petition.

In the case of the United States v. Emminizer, 56 MJ 441 (CAAF 2002). Error for SJAR to advise that to waive automatic forfeitures at the action. He would have to disapprove of the adjudged forfeitures. CA could have modified the monetary amount of adjudged forfeitures and/or suspended the forfeitures for the waiver period. The case was returned to the CA for a new SJAR and action.

May reassess the sentence. If a CA reassesses a sentence after, for example, dismissing guilty findings, the CA must do so in conformity with the requirements of In the case of the United States v. Sales, 22 MJ 305 (CMA 1986). In the case of the United States v. Harris, 53 MJ 86 (CAAF 2000). In addition, the CA may purge any prejudicial effect if it can determine that the sentence would have been of a certain magnitude. Further, the SJAR must guide the CA as the standard to apply in reassessing the sentence. In the case of the United States v. Reed, 33 MJ 98 (CMA 1991).

In the United States v. Bonner, 64 MJ 638 (A. Ct. Crim. App. 2007). The SJAR recommended that the CA disapprove one specification without giving a reason. The CA did so and approved the adjudged sentence. The appellate defense alleged error and pointed to the lack of sales guidance on sentence reassessment in the SJAR or addendum. The ACCA found no reason to believe the specification was disapproved because of a legal error (no such allegation in RCM 1105/1106 submissions) and concluded that the disapproval was an act of compassion not requiring sentence reassessment. See In the case of the United States v. Kerwin, 46 MJ 588 (AF Ct. Crim. App. 1996) (holding that a pure act of clemency does not require sentence reassessment). In a footnote, the ACCA conceded that there might be a “middle ground” between pure sentence clemency and clemency recommended as a form of relief from “possible legal error” and recommended that SJAs advise CAs of the standard for sentence reassessment.

In the United States v. Taylor case, 47 MJ 322 (CAAF 1997), aff’d after remand, 51 MJ 390 (CAAF 1999). Discusses how to reassess a sentence if the CA dismisses some charges. Disregarding the findings is not enough; we must disregard the evidence too. They were remanded to the AFCCA to correctly reassess or order a rehearing.

In the United States v. Griffaw, 46 MJ 791 (AF Ct. Crim. App. 1997). SJA incorrectly stated that the sentence reduction based on the terms of the pretrial agreement was equal to a form of clemency.

In the United States v. Bridges case, 58 MJ 540 (CG Ct. Crim. App. 2003). Appellant was sentenced to reduction to E-1, forfeiture of all pay and allowances, confinement for twenty-two years, and a DD. The CA disapproved two specifications at the action and approved only so much of the sentence as provided for reduction to E-1, forfeiture of all pay and allowances, confinement for twenty years, and a DD.

The CGCCA held that the CA erred in attempting to reassess the sentence after dismissing two very serious specifications (indecent acts and forcible sodomy). Although the maximum punishment for the offenses both before and after action remained the same (i.e., reduction to E-1, forfeiture of all pay and allowances, confinement for life, and a DD), the issue was whether the CA or the court could “accurately determine the sentence which the members would have adjudged for only those charges and specifications approved by the convening authority.” Id . at 545. The court determined that neither the CA nor the court could properly reassess the sentence in light of the modified findings, set aside the sentence, and authorized a rehearing.

In the United States v. Meek, 58 MJ 579 (CG Ct. Crim. App. 2003). Appellant was sentenced to reduction to E-1, seventy-five days confinement, and a BCD. At the action, the SJA recommended disapproval of one charge based upon the PTA. The SJA further recommended, “I do not recommend that you adjust the accused’s sentence as a result of setting aside the military judge’s findings as to Charge I and its specification.

The two remaining charges to which the accused pled guilty adequately support the sentence awarded.” Id . at 580. The CGCCA held that the SJA erred by giving the above guidance and failing to advise the CA that he must reassess the sentence, approving only so much of the sentence as would have been convicted without the dismissed specification. Thus, the CGCCA approved only so much of the sentence as a reduction to E-1, sixty days confinement, and a BCD.

In the case of the United States v. Perez, 66 MJ 164 (CAAF 2008). Shortly after the trial, the rape victim recants. During the post-trial Article 39(a) session, the military judge finds that he would not have found the appellant guilty of rape, nor would he have sentenced him to anything more than six months confinement, reduction, and forfeitures. Nevertheless, CA modified findings and sentences by approving the BCD, reduction to E-1, and confinement for 206 days. The CAAF held that CA did not properly reassess the sentence. Under no circumstances can the CA approve a sentence greater than the sentencing authority would have adjudged absent the error.

 

In the case of the United States v. Rollins, 61 MJ 338 (CAAF 2005). Appellant was sentenced to a BCD, confinement for eight years, and reduction to E-5. The convening authority revised the findings to address issues involving applying the statute of limitations under Article 43, UCMJ. The SJA recommended that the convening authority approved the adjudged sentence, subject to reducing the period of confinement from eight to five years to cure the prejudice of the erroneous findings.

The convening authority revised the findings but only reduced the sentence to seven years. The AFCCA affirmed the findings and sentence as modified by the convening authority. The CAAF held that “[t]he convening authority’s action, in this case, did not cure the prejudice of the military judge’s failure to focus the attention of the members on the appropriate period under the circumstances of this case. See Kotteakos v. In the case of the United States, 328 US 750, 765 (1946). Accordingly, we shall set aside the affected findings and authorize a rehearing.”

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