Hernandez is ACCA' s refresher on challenges to a member, especially when it involves implied bias. He gets a new trial because the MJ declined to excuse a panel member who “expressed a strongly held belief that consent to sexual intercourse required verbal consent.” (The member's wife was a SARC which was part of the basis for challenge.) Two prospective members held the same opinion, but one was peremptorily challenged by the defense. (Keep in mind that a peremptory challenge waives the issue, and failure to peremptorily challenge, if there is only one member affected, waives the issue.) Sergeant First Class@expressed a strongly held belief that consent to sexual intercourse must be expressed verbally. When asked by the defense counsel, "[d]o you think consent to sexual intercourse has to be verbal?" SFC responded, "[y]es." Defense counsel then quoted the definition of consent that the military judge would later use in instructions. and then asked: "[s]o if you saw the words 'consent is a freely given agreement,'you would think that agreement has to be a verbal agreement?" SFC responded with: "(i]t has to be verbal without intoxication." In denying the challenge the MJ mentioned the liberal grant mandate but found the standard for either an actual or implied bias was not met.
The ACCA focuses on the implied bias issue and notes that
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In Harris, the appellant pled guilty to a larceny and a robbery and was sentenced to sixteen months, RiR, and a BCD. The issue, a common one, is whether the MJ should have recused. Appellant was initially charged with, among other things, robbing another Soldier of $55,000. He negotiated a plea agreement, which included his promise to request trial by military judge alone. Appellant tried to plead guilty in accordance with the agreement, but he was not provident to all aspects of the robbery charge. The convening authority withdrew from the agreement, and the military judge said of future proceedings: The Appellant got himself a new deal and appeared before the same judge for the GP. The MJ said that he'd still be the judge and the defense challenged for implied bias based on the prior attempted guilty plea and associated providence inquiry. The MJ later asked the Appellant specifically if he was voluntarily proceeding MJA and with him still the MJ--to which the Appellant said yes. The court looks at three points to affirm.
1. An MJ has the discretion and often uses it to stay on a MJA case when she has previously rejected the providence of a guilty plea. "United States v. Winter, 35 M.J. 93 (C.M.A. 1992), is instructive on this point, for our superior court concluded that a military judge did not err in presiding over a contested bench trial after rejecting an improvident plea in the case." 2. There is no evidence of record that the forum choice was involuntary. "[H]is decision to enter a plea agreement, or his decision to remain bound by the plea agreement. These decisions are reserved to an accused at a court-martial; they cannot be outsourced to defense counsel. Florida v. Nixon, 543 U.S. 175, 187 (2004). The military judge specifically asked appellant whether his forum choice was voluntary, and he responded that it was. The military judge also asked appellant, Did you enter the agreement of your own free will?" Appellant responded, "Yes, Your Honor." Based on the circumstances, we do not doubt the voluntariness of any of appellant's decisions." While not stated, the sentence seems reasonable for robbing another Soldier of $55,000.00, so arguably the MJ was not affected by the prior failed GP. United States v. Cooper becomes something of a Pyrrhic victory. The Appellant pled guilty to violating a general regulation and a sexual assault. He was sentenced, on 28 October 2020, to one year, RiR, and a DD.
On 7 November 2020, the Appellant requested speedy appellate review. On 2 December 2020, the MJ entered the judgement. On 14 May 2021, the TC completed a precertification review of the ROT--a total of only 453 pages in a guilty plea case. On 30 May 2021 the MJ authenticated the ROT. On 28 June 2021, the ROT was received at ACCA--242 days (a little more than eight months) after the sentence was announced. There were no explanations for any of the delays. Specifically, "There is no explanation in the record, or appellee's brief, as to why it took 163 days after the entry of judgment for trial counsel to complete his review, which ultimately led to a 182-day delay between the entry of judgment and the final certification." On 7 July 2022, ACCA affirmed the findings but found unreasonable post-trial delay. The court then affirmed only 11 months and 15 days confinement. Assuming the Appellant received the regular five days a month good time credit, his MRD would be at ten months (he might have received several extra days for work abatement or such). Thus, the "unexplained" delays post-trial created the cognizable delay but also made the resulting credit Pyrrhic. In Heng, the Appellant pled guilty to two domestice violence assaults and abuse of an animal. He was sentenced to "14" months, RiR, and a BCD.
At trial, the defense, accused, trial counsel, and MJ agreed the max per assault was two years. On appeal the argument is that the max is six months. The President had not issued the maximum punishments for the assault offenses so all relied on R.C.M. 1003(c)(3)(B) to find the closely related offense of assault on a spouse. Delving into the choronology of the statutory changes and Congressional intent, the court concludes that the parties at trial were right. United States v. Gene WilliamsIn 2013, in Williams Appellant was convicted by an "enlisted" panel of rape, four forcible sodomies, and five assaults. He was sentenced to 20 years, TF, RiR, and a DD. Allegations of aggravated sexual contact with a child and child sodomy were dismissed. He got a Hills remand from CAAF. After a second ACCA affirmance, CAAF set aside the rape conviction, three of the sodomies, and the sentence. One of the sodomies was affirmed as were the five A&B. In 2019, appellant was tried at a combined rehearing before a military judge at a general court-martial. The rehearing offenses consisted of the three specifications of forcible sodomy set aside by the CAAF, and two additional charges: one specification of aggravated sexual contact with a child and one specification of sodomy of a child under twelve. These two charges were the same charges dismissed without prejudice in appellant's first trial. One specification of rape, for which appellant was found guilty at his original trial, and which was set aside by the CAAF and authorized for rehearing, was dismissed by the government without prejudice. The two additional charges were preferred on 30 August 2018, and were received by the summary court-martial convening authority (SCMCA) on 12 September 2018. Contrary to his pleas, appellant was found guilty of the three specifications of forcible sodomy and one specification of child sodomy.' His sentence for these offenses, along with the resentencing for the five specifications of assault consummated by battery, was a dishonorable discharge, confinement for thirty-five years, total forfeitures of pay and allowances and reduction to E-1. We are getting to the issue now. Of the "multiple assignments of error," the court finds that "the statute of limitations had expired for the child sodomy offense in the Specification of Additional Charge 11." On sentence reassessment, the court affirmed 19 years confinement. On the issue. It was not raised at trial and the MJ "did not instruct Appellant of it as a possible defense." The court applies plain error and finds it to be "plain and obvious error not to apply [the SoL defense]." Working through the different statutes and rules applicable, the court concludes that First, to understand how McPherson applies to the child sodomy offense under Article 125, UCMJ, of which appellant was convicted, we must determine the statute of limitations for this particular offense in this case. For this, we look to the version of Article 43, UCMJ, that was in effect at the time charges were received by the SCMCA. The Specification of Additional Charge II alleges the child sodomy of[ occurred between on or about 1 April 2009 and on or about 30 April 2009, in violation of Article 125, UCMJ. While appellant was initially charged at his first trial in 2011 with this offense, the prosecution dismissed this charge without prejudice. Appellant was again charged at his rehearing with this offense when the government re-preferred the child sodomy on 30 August 2018. The SCMCA received this charge on 12 September 2018. On 12 September 2018, X was approximately 17 years old. The Article 43(b), UCMJ, in effect at this time was codified at 10 U.S.C. $ 843() (Supp. IV 2016). Steele presents an interesting issue of new claims on or after remand. In addition to this initial plenary appellate review under Article 66, a non trivial number of appeals return to this court following either a remand to the trial level for a rehearing on findings and/ or sentence (like this case), or following remand from the Court of Appeals for the Armed Forces [CAAF] for additional proceedings in our court. See, e.g., United States v. Sanchez, ARMY 20140735, 2019 CCA LEXIS 164 (Army Ct. Crim. App. 10 Apr. 2019) (summ. disp). When cases come back in these ways, sometimes appellants press new claims of error that they did not raise in their first appeal. In some instances, we have reached the merits of the new claim or claims. See, e.g., United States v. Hemmingsen, ARMY 20180611, 2021 CCA LEXIS 180, at *3 (Army Ct. Crim. App. 15 Apr. 2021) (mem. op.) (concluding that considering the new issues was within the scope of the CAAF's remand order). In other appeals we have held that the newly-raised claim is not properly before us. See, e.g., United States v. Navarette, ARMY 20160786, 2022 CCA LEXIS 255, at *11 (Army Ct. Crim. App. 29 Apr. 2022) (citing United States v. Smith, 41 M.J. 385,386 (C.A.A.F. 1995), for the proposition that "[w]hile [an] appellant is entitled to plenary review under Article 66 ... he is only entitled to one such review."). Basically, if you can't clear the test above, the issue is procedurally forfeited. The court does not that the newly alleged constitutional error was, to say the least, novel. Cheers, Phil Cave.Opinion in Dial. However, we are ultimately more persuaded by the second basis which contends Congress determined that unanimous verdicts would unduly impede the efficiency of military operations. That is to say, deliberations towards unanimous verdicts are likely to take longer to achieve, thereby keeping participants from their military duties for reater periods of time. See Revision of the Articles of War, United States Senate, Subcommittee on Military Affairs, Statement of Brig. Gen. Enoch H. Crowder, United States Army, Judge Advocate General of the Army (1916), p. 27 [1916 Hearing]. Most importantly, when a unanimous verdict cannot be reached and a hung jury results, the command is faced with the prospect of either engineering a retrial or returning a service member with unresolved charges to its ranks. A verified commenter says, The fear of a hung jury, as an impediment to military efficiency, is wrong. The issue is a unanimous verdict to convict, not a unanimous verdict to acquit. The court footnotes the issue and says they are unaware of any other court in the country where a single vote for acquittal results in an acquittal. Perhaps, but there is no other court that convicts on a non-unanimous vote. The equal protection analysis is a different ballgame for the accused who are convicted under Art. 134, Clause 3 offenses. That is not the issue here but it's the issue in other pending cases. The military efficiency rationale won't hold up in these cases. Cheers, Phil Cave.United States v. Wilkinson. Appellant was convicted, by a military judge, in absentia of indecent viewing, attempted indecent viewing, two sexual abuses of a child, and indecent exposure. The MJ sentenced him to three years and a dismissal. ACCA had to decide whether the Appellant was voluntarily absent and burdens of proof. The court was satisfied trial could proceed in the Appellant's absence. On a different note. It is not clear from the opinion when, if ever, the Appellant elected MJA. We know that forum is one of the four or five decisions only the accused can make. The R.C.M. 804 in effect says the accused "shall" be present and that the trial is his "place of duty." Once arraigned, trial may proceed if the accused's absence is voluntary. R.C.M. 903 regulates forum selection. The Discussion to Rule 903(a) says that "If an accused makes no forum selection, the accused will be tried by a court-martial composed of a military judge and members, as specified in the convening order." This is what we old folks called the default. But see, as did ACCA, United States v. Chandler, 80 M.J. 425, 429, n.2 (C.A.A.F. 2021) ("The provisions of a discussion section to the R.C.M. are not binding but instead serve as guidance."). R.C.M. 903(b) requires a written election or one made on the record. See also UCMJ art. 16(b)(3). R.C.M. 903(c)(2) requires affirmative action by the MJ to ensure an election for MJA is voluntary. United States v. Amos, 26 M.J. 806 (A.C.M.R. June 24, 1988); United States v. Jungbluth, 48 M.J. 953 (N-M. Ct. Crim. App. 1998) are of some help with my question. I acknowledge it's entirely possible that the Appellant had elected forum on the record before he went UA to some other place. It would seem proper then, if that's the case for a MJA trial to proceed. Cf. United States v. Stiner, 30 M.J. 860, 861 (N.M.C.M.R. 1990). Does anyone know when and how forum was selected in this case? If no written request or oral request on the record, perhaps United States v. Turner, 45 M.J. 531 (N-M. Ct. Crim. App. 1996) might be helpful in finding that the trial could not proceed MJA. See also, United States v. Mozie, No. 20130065, 2016 CCA LEXIS 273 *1 n.1 (A. Ct. Crim. App. Apr. 28, 2016). In United States v. Sharp, 38 M.J. 33 (C.M.A. 1993), cited by ACCA, the accused was tried by members. The court concludes that, In sum, the question before us is not whether we think it is more likely that appellant perished in the mountains or voluntarily absented himself from his trial. Rather, we can only provide relief if we find that the military judge's ruling constitutes an abuse of discretion. See Gore, 60 M.J. at 187 ("[T]he abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.") (citation omitted). As such, based on our review of the entire record and for all of the reasons stated above, we conclude that the military judge did not abuse his discretion in: (1) finding that the government met its burden to prove by a In United States v. Pietr Lewis, the court agreed that it was error to admit a company grade UCMJ art. 15 punishment in sentencing, over defense objection. The 15 was from a prior duty station when he was a PFC. It appears Army Regulation 27-10 para. 3-37b(1) (their JAGMAN) required destruction of the 15 once he PCS'd. However, the TC relied on the 15 being maintained in a Military Justice Online database for up to two years, IAW 27-10 para. 3-37h. Appellant pled guilty to involuntary manslaughter and was sentenced to 42-months, RiR, and a DD. On 11 June 2020, appellant and a group of fellow soldiers went out to a few bars to socialize. Appellant, being under 21, was one of the designated drivers. By the end of the evening, only appellant and the victim remained at the bar. Despite being under the legal drinking age of 21, and a designated driver, appellant consumed "about five to seven drinks" that evening. The court having found error, found prejudice and reassessed the sentence to 36-months, RiR. and a DD.
United States v. Soler. Appellant pled guilty to six instances of obstructing justice condensed into one specification. As part of a PTA, the government dismissed two sexual assaults, one indecent recording (his extramarital sex with a junior Soldier), and a general order violation. Appellant was sentenced to six months, RiR, and a BCD. The CA only approved an RiR to E2, per the PTA. On appeal the Appellant claimed IAC for failing to "present evidence pertaining to his ten years of service in the Army, moving for admission of his enlisted record brief (ERB), or presenting evidence of appellant's combat-related [X] diagnosis." After reviewing the case and affidavits provided by defense counsel, the court finds no error or prejudice. The defense had prepared a sentencing case by interviewing witnesses, getting documents, and getting the Appellant's medical records. But the decision was made to give only an unsworn statement. The TC submitted no documents in sentencing and the defense submitted some personal photographs. Interestingly, the MJ asked the Government if they would provide the ERB, an invitation the TC declined. Slip op. at 2. Query, could the MJ have ordered the TC to produce the ERB as a court exhibit? Can the military judge order the Government to produce the whole official service record, subject to objections from defense? If then introduced, could the TC try to offer aggravation evidence based solely as rebuttal to the ERB? Affidavits from appellant's military and civilian defense counsel outlined their efforts in preparing both character and mitigation evidence for the pre-sentencing hearing and the tactical reasons for ultimately editing the presentation of that evidence. Appellant's military defense counsel submitted an affidavit stating she interviewed several family members, friends, supervisors, and colleagues of appellant and prepared those witnesses to testify at appellant's presentencing hearing. Concerned that good soldier evidence would allow the government to present evidence of appellant's prior misconduct of an unfounded allegation of and obstruction of justice, civilian defense counsel requested this testimony be reduced to written statements. What was the concern? In 2013, appellant was investigated for the offense of [X]. While the [X] was unfounded, there was evidence in the investigation that appellant made efforts to obstruct justice during the investigation by asking a witness not to talk to the military. Appellant's witness production request included ten witnesses, both military and civilian, that appellant asserted would testify as to his rehabilitative potential during the pre-sentencing hearing. Given that appellant plead guilty to obstruction of justice approximately five years after his prior attempt to do so was relevant information as to both appellant's good military service and rehabilitative potential. The government could have utilized appellant's prior efforts to obstruct justice by: (1) cross-examining his character witnesses about this prior misconduct in order to test the strength of their opinion as to his rehabilitative potential, or (2) presented the information as rebuttal evidence concerning appellant's rehabilitative potential or good military service. See Scott, 81 M.J. at 86 (C.A.A.F. 2021) ("[R]ecogniz[ing] that, in some cases, trial defense counsel may not wish to call witnesses on sentencing who, through their testimony, may open the door for the government to present additional adverse evidence."). So, in this case, [The] decision to constrain the presentation of character evidence reasonable under the circumstances. See United States v. Datavs, 71 M.J. 424 (C.A.A.F. 2012) (Defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so."). The court did note that even if there was IAC it would not have been prejudicial. Despite appellant's assertions to the contrary, the conduct to which appellant pied guilty was significant in not only attempting to impede a law enforcement investigation but leveraging his rank and position of authority to influence subordinates to commit a criminal offense for his benefit. Even if defense counsel presented the few pages of medical evidence of appellant's - diagnosis in 2017 and appellant's ERB, there is no "reasonable probability" that the sentence would have been any different given the severity of appellant's misconduct. Cheers, Phil Cave |
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