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Power of Courts of Criminal Appeals (CCAs) UCMJ, Article 66(c)

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“It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.”

United States v. Cole , 31 M.J. 270 (C.M.A. 1990). “Article 66(c)[‘s] . . . awesome,plenary, de novo power of review” grants CCAs the authority to substitute their judgment for that of the military judge. It also allows a “substitution of judgment” for that of the court members.

United States v. Claxton , 32 M.J. 159 (C.M.A. 1991). A “ carte blanche ” to dojustice. J. Sullivan in dissent notes CCAs are still bound by the law.

United States v. Keith , 36 M.J. 518 (A.C.M.R. 1992). In appropriate case, theACMR may fashion equitable and meaningful remedy regarding sentence.

United States v. Smith , 39 M.J. 448 (C.M.A. 1994). Plenary, de novo power of CCA does not include finding facts regarding allegations of which fact finder has found accused not guilty.

United States v. Lewis , 38 M.J. 501 (A.C.M.R. 1993), aff’d , 42 M.J. 1 (C.A.A.F.2005). Appellate court has authority to investigate allegations of IAC, including authority to order submission of affidavits and a hearing before a MJ.

United States v. Joyner , 39 M.J. 965 (A.F.C.M.R. 1994). In reviewing severity of sentence, appellate court’s duty is to determine whether accused’s approved sentence is correct in law and fact based on individualized consideration of nature and seriousness of offense and character of accused. United States v. Smith , 56 M.J. 653 (A. Ct. Crim. App. 2001) (holding that nine-year sentence for escape from Disciplinary

Barracks and related offenses not inappropriately severe even though co-accused and individual who initiated the scheme to escape only received three years). See also United States v. Hundley , 56 M.J. 858 (N-M. Ct. Crim. App. 2002); United States v. Ransom , 56 M.J. 861 (A. Ct. Crim. App. 2002).

United States v. Ragard , 56 M.J. 852 (A. Ct. Crim. App. 2002). Clemency power is not within the powers granted to appellate courts by Article 66, UCMJ. Appellant argued that his medical condition (having AIDS) made his dismissal an inappropriately severe sentence because his dismissal would limit his access to medical care. The Army court disagreed, noting that sentence appropriateness involves a judicial function of ensuring that the accused gets the punishment deserved while clemency involves “bestowing mercy.”

United States v. Sales , 22 M.J. 305 (C.M.A. 1986). Appellate court may reassess a sentence if it is convinced that the sentence would have been of at least a certain magnitude, even if there is no error. If there is an error, such a reassessment must purge the prejudicial impact of the error. If the error was of constitutional magnitude, the court must be persuaded beyond a reasonable doubt that its reassessment has rendered any error harmless. If the appellate court cannot be certain that the prejudicial impact can be eliminated by reassessment and that the sentence would have been of a certain magnitude, it must order a rehearing on sentence. See also United States v. Harris , 53 M.J. 86 (C.A.A.F. 2000) (noting that appellate courts must also make the same determination if a sentence has been reassessed by a convening authority).

United States v. Doss , 57 M.J. 182 (C.A.A.F. 2002). Appellant convicted of assault consummated by a battery, assault with a dangerous weapon, and soliciting another to murder his wife. At trial, the DC presented no evidence on appellant’s mental condition other than his unsworn statement. On appeal, the NMCCA found appellant’s defense counsel ineffective during the sentencing portion of the trial by failing to present evidence of appellant’s mental condition. The court reassessed the appellant’s sentence and reduced the period of confinement from eight to seven years. On appeal, the CAAF found that the DC’s omissions could not be cured (i.e., rendered harmless beyond a reasonable doubt) by reassessing the sentence because it was impossible to determine what evidence a competent defense counsel would have presented. The court, therefore, held that the lower court abused its discretion in reassessing the sentence instead of ordering a rehearing.

United States v. Mitchell , 58 M.J. 446 (C.A.A.F. 2003). Appellant convicted of, among other offenses, five drug distribution specifications and sentenced to a BCD, ten years confinement, total forfeitures, and reduction to E-1. On appeal, the ACCA set aside two distribution specifications and ordered a rehearing on sentence. On rehearing, the appellant was sentenced to a DD, six years confinement, and reduction to E-1. The ACCA affirmed the sentence finding that under an objective standard, a reasonable person would not view the rehearing sentence as “in excess of 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 affirmed only so much of the sentence as provided for a BCD, six years confinement, and reduction to E-1. 10. United States v. Commander , 39 M.J. 972 (A.F.C.M.R. 1994). Appellate courts may examine disparate sentences when there is direct correlation between each accused and their respective offenses, sentences are highly disparate, and there are no good and cogent reasons for differences in punishment. See also United States v. Kelly , 40 M.J. 558 (N.M.C.M.R. 1994).

United States v. Pingree , 39 M.J. 884 (A.C.M.R. 1994) (inappropriately severe sentence reassessed, dismissal disapproved). See also United States v. Hudson , 39 M.J. 958 (N.M.C.M.R. 1994) (court disapproved BCD); United States v. Triplett , 56 M.J. 875 (A. Ct. Crim. App. 2002) (court reduced accused period of confinement from fifteen years to ten years based on the five- and six-year sentences two co-accused received). 12. United States v. Dykes , 38 M.J. 270 (C.M.A. 1993). Standard for ordering post-trial hearing on issue presented to appellate court:

Not required where no reasonable person could view opposing affidavits, in light of record of trial, and find the facts alleged by accused to support claim.

Required where substantial unresolved questions concerning accused’s claim.

United States v. Fagan , 58 M.J. 534 (A. Ct. Crim. App. 2003), rev’d , 59 M.J. 238 (C.A.A.F. 2004). The lower court was correct in holding that United States v. Ginn , 47 M.J. 236 (C.A.A.F. 1997)1 provides the proper analytical framework for dealing with a post-trial affidavit raising a claim of cruel and unusual punishment. The lower court, however, erred in holding that it could grant relief at its level “in lieu of ordering a DuBay hearing ( United States v. DuBay , 37 C.M.R. 411 (C.M.A. 1967)), to resolve the disputed factual issues raised by the appellant’s affidavit. “The linchpin of the Ginn framework is the recognition that a Court of Criminal Appeals’ fact-finding authority under Article 66(c) does not extend to deciding disputed questions of fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties.” 59 M.J. 238, 242 (C.A.A.F. 2004).

Finally, the lower court erred in finding a conflict, “where none exists” between Ginn and United States v. Wheelus , 49 M.J. 283 (C.A.A.F. 1998). 59 M.J. at 243. “The exercise of the ‘broad power’ referred to in Wheelus flowed from the existence of an acknowledged legal error or deficiency in the post-trial review process. It is not a ‘broad power to moot claims of prejudice’ in the absence of acknowledged legal error or deficiency, nor is it a mechanism to ‘moot claims’ as an alternative to ascertaining whether a legal error or deficiency exists in the first place.” 59 M.J. at 244. 14. United States v. Campbell , 57 M.J. 134 (C.A.A.F. 2002). Standard for handling post- trial discovery issues:

Has appellant met his threshold burden of demonstrating that some measure of appellate inquiry is warranted?

If no – stop. If yes, then –

What method of review should be used (e.g., affidavits, interrogatories, fact- finding hearing, etc.)? United States v. Hutchison , 57 M.J. 231 (C.A.A.F. 2002). Sentence review limited to determining appropriateness of sentence. Consideration of whether civilian criminal prosecution was “appropriate” is an improper consideration for the CCA.

In United States v. Ginn , the CAAF established six principles for dealing with allegations of error raised for the first time on appeal in a post-trial affidavit: First, if the facts alleged in the affidavit allege an error that would not result in relief even if any factual dispute were resolved in the appellant’s favor, the claim may be rejected on that basis. Second, if the affidavit does not set forth specific facts but consists instead of speculative or conclusory observations, the claim may be rejected on that basis.

Third, if the affidavit is factually adequate on its face to state a claim of legal error and the Government either does not contest the relevant facts or offers and affidavit that expressly agrees with those facts, the Court can proceed to decide the legal issues on the basis of those uncontroverted facts. Fourth, if the affidavit is factually adequate on its face but the appellate filings and the record as a whole “compellingly demonstrate” the improbability of those facts, the Court may discount those factual assertions and decide the legal issue.

Fifth, when an appellate claim of ineffective representation contradicts a matter that is within the record of a guilty plea, an appellate court may decide the issue on the basis of the appellate file and record (including the admissions made in the plea inquiry at trial and appellant’s expression of satisfaction with counsel at trial) unless the appellant sets forth facts that would rationally explain why he would have made such statements at trial but not upon appeal. Sixth, the Court of Criminal Appeals is required to order a fact finding hearing only when the above- stated circumstances are not met. In such circumstances the court must remand the case to the trial level for a DuBay proceeding. Fagan , 58 M.J. at 537 (emphasis in original). 16. United States v. Perron , 58 M.J. 78 (C.A.A.F. 2003). Appellate courts (i.e., CCAs) cannot impose alternative relief on an unwilling appellant to rectify a mutual misunderstanding of a material term of a PTA.

Appellant must consent to the proposed relief or be afforded the opportunity to withdraw from the prior plea. But see United States v. Lundy , 63 M.J. 299 (C.A.A.F. 2006). 17. United States v. Holt , 58 M.J. 227 (C.A.A.F. 2003). The lower court (AFCCA) erred, depriving the appellant of a proper Article 66(c) review limited to the record of trial, when it considered numerous exhibits for the truth of the matters asserted, “alter[ing] the evidentiary quality of the [exhibits]” when the military judge ruled otherwise and instructed the members that they were not to consider the cited evidence for the truth of the matters asserted. Id . at 233.

“Article 66(c) limits the Courts of Criminal Appeals to a review of the facts, testimony, and evidence presented at trial, and precludes a Court of Criminal Appeals from considering ‘extra-record’ matters when making determinations of guilt, innocence, and sentence appropriateness (citation omitted). Similarly, the Courts of Criminal Appeals are precluded from considering evidence excluded at trial in performing their appellate review function under Article 66(c).” Id . at 232. 18. United States v. Osuna , 58 M.J. 879 (C.G. Ct. Crim. App. 2003). Appellate courts are limited, absent clearly erroneous findings or legal error, to the factual determinations made by prior panels of that court.

In appellant’s first appeal, the court affirmed the findings but remanded for a new review and action because there was no evidence that the CA considered the appellant’s clemency submissions or that he was ever advised to consider the defense’s written submissions. C.J. Baum, in the first appeal, dissented re: findings on several offenses citing to a lack of factual sufficiency. On appeal the second time, the appellant renewed his challenge to the findings. The court, in an opinion authored by C.J. Baum, held “it would be inappropriate for us to readdress our previous factual determination, absent a legal error necessitating such action.” Id . at 880. 19. United States v. Castillo , 59 M.J. 600 (N-M. Ct. Crim. App. 2003).

The appellant was convicted of unauthorized absence terminated by apprehension and sentenced to reduction to E-1, fifty-one days confinement, and a BCD. On appeal [ Castillo I ], the appellant alleged that her sentence was inappropriately severe, an allegation that the court agreed with, setting aside the CA’s action and remanding with the following direction: The record will be returned to The Judge Advocate General for remand to the [CA], who may upon further consideration approve an adjudged sentence no greater than one including a discharge suspended under proper conditions. Id . at 601 ( quoting United States v. Castillo , No. 200101326, 2002 WL 1791911 (N-M. Ct. Crim. App. Jul. 31, 2002).

Upon remand, the SJAR erroneously advised the CA that the appellate court “recommended” that the punitive discharge be set aside. The defense counsel disagreed with the SJAR noting that the guidance from the NMCCA was not a recommendation. The CA, following the SJA’s advice, again approved a punitive discharge.

Held: the CA’s decision to disregard the court’s guidance was “a clear and obvious error,” a decision based on advice that was similarly “clearly erroneous” and “misguided.” Id . Finally, the court advised that “[p]arties practicing before trial and appellate courts have only three options when faced with [their] rulings [: comply with the decision, request reconsideration, or appeal to the next higher authority to include certification of an issue by the Judge Advocate General].” Id . In exercising its sentence appropriateness authority under Article 66(c),  UCMJ,UCMJ (2015) the court approved only so much of the sentence as provided for reduction to E-1 and 51 days confinement, and disapproved the BCD. 20. Extraordinary Writs and Government Appeals.

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