U.S. v. Hawes, 51 M.J. 258

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Courts of Criminal Appeals may purge the prejudicial impact of error by reassessing the sentence if that court can confidently discern the extent of the error’s effect on the sentencing authority’s decision and determine that the accused’s sentence would have been at least of a certain magnitude; but, no higher sentence may be affirmed by the appellate court than would have been adjudged at trial absent the error

Trial Stages: Appeals: Remedies › Sentence reassessment

1. Courts of Criminal Appeals may purge the prejudicial impact of error by reassessing the sentence if that court can confidently discern the extent of the error’s effect on the sentencing authority’s decision and determine that the accused’s sentence would have been at least of a certain magnitude; but, no higher sentence may be affirmed by the appellate court than would have been adjudged at trial absent the error
2. Court of Criminal Appeals did not abuse its discretion by reassessing sentence to purge the prejudicial impact of error where that court used its military experience and expertise to determine that a fraternization offense [for permitting a breach of military courtesy], which that court dismissed, was trivial in light of remaining use of marijuana offense, and where that court determined appellant’s sentence would be at least the same as the adjudged sentence

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. lower court’s reassessment of a sentence to purge the prejudicial impact of error is reviewed for abuse of discretion and will only be disturbed to prevent obvious miscarriages of justice or abuses of discretion
2. appellant bears the burden of showing that lower court’s reassessment of a sentence to purge the prejudicial impact of error was an abuse of discretion