U.S. v. Pena, 64 M.J. 259

First Principles: Constitutional Matters: Cruel and Unusual Punishment

1. the Eighth Amendment prohibits cruel and unusual punishments; similarly, Article 55, UCMJ, prohibits cruel or unusual punishment; Article 55, UCMJ, also prohibits specified punishments, such as use of irons except for the purpose of safe custody
2. in an appellate court’s evaluation of both constitutional and statutory allegations of cruel or unusual punishment, it applies the Supreme Court’s Eighth Amendment jurisprudence in the absence of legislative intent to create greater protections in the UCMJ
3. the Eighth Amendment prohibits punishments that are incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the unnecessary and wanton infliction of pain
4. the conditions of mandatory supervised release that required appellant to participate in a sex offender treatment program, to have no contact with the victims without the prior approval of his probation officer, to abstain from the use and possession of pornography, to consent to periodic examinations of his computer, to abstain from locations that act as a sexual stimulus, to register as a sex offender, to participate in alcohol and narcotics abstention meetings, to waive confidentiality in his relations with the sponsor of the treatment program, and to abstain from consuming alcohol did not constitute cruel or unusual punishment within the Eighth Amendment standards articulated by the Supreme Court

Military Justice Personnel: Defense Function: Generally

1. chief reliance must be placed on the defense counsel to inform an accused about the collateral consequences of a court-martial conviction and to ascertain his willingness to accept those consequences

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. as a general matter, the military judge does not have an affirmative obligation to initiate an inquiry into early release programs as part of the plea inquiry

Trial Stages: Merits: Guilty Pleas

1. as a general matter, the military judge does not have an affirmative obligation to initiate an inquiry into early release programs as part of the plea inquiry
2. chief reliance must be placed on the defense counsel to inform an accused about the collateral consequences of a court-martial conviction and to ascertain his willingness to accept those consequences
3. in the present case, appellant failed to establish that the conditions imposed during his mandatory supervised release rendered his guilty pleas improvident where he did not demonstrate that the collateral consequences actually imposed increased his punishment and where neither the text of the plea agreement nor the record of the military judge’s plea inquiry contained any language that would have placed an obligation on the military judge to address the mandatory supervised release program at that time

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. parole is a form of conditional release from confinement under the guidance and supervision of a United States probation officer; in addition, parole is a voluntary program, in which the inmate applies to participate during the balance of his or her period of approved confinement; the decision as to whether parole should be granted is vested in the Clemency and Parole Boards of the military departments; the decision is highly discretionary; prior to release on parole, the inmate must have an approved parole supervision plan, and agree in writing to abide by the plan and conditions of supervision; violation of the terms and conditions may result in revocation of parole; in general, the supervision of persons on parole is designed to enhance the person’s reintegration into civilian society
2. the mandatory supervised release program is a DoD early release mechanism; mandatory supervised release covers specified classes of prisoners who have served sufficient time in confinement to be considered for parole, but who are not granted parole; as with parole, mandatory supervised release applies from the time of release from prison until the end of the prisoner’s approved sentence, and it may be revoked for violation of the terms and conditions of the program; in contrast to parole, which is a voluntary program, a prisoner may be placed involuntarily on mandatory supervised release; in addition to the conditions that may be imposed during parole, the Clemency and Parole Board may use the mandatory supervised release program to impose any additional reasonable supervision conditions that would further an orderly and successful transition to civilian life for released prisoners, and which would better protect the communities into which prisoners are released; a prisoner who refuses to accept mandatory supervised release or the conditions imposed by the Clemency and Parole Board is subject to discipline, including trial by court-martial
3. mandatory supervised release differs in significant respects from the authority of the federal civilian courts to include in a sentence a term of supervised release after imprisonment; unlike the federal civilian program, which is based on express statutory authority and involves terms that are adjudged as part of the sentence, the military’s mandatory supervised release program is based on executive authority, and involves terms that are imposed by executive branch officials well after completion of trial
4. the military sentencing process provides notice of the punishments at issue, an adversarial proceeding, and formal announcement of the sentence
5. a servicemember cannot be subjected to a sentence greater than that adjudged by the court-martial
6. as a general matter, the collateral administrative consequences of a sentence, such as early release programs, do not constitute punishment for purposes of the criminal law
7. in the context of an issue that requires a showing of increased punishment, it is not sufficient to show that the conditions of mandatory release imposed some burdens on a released prisoner; all conditions of release impose burdens to some degree; those burdens, however, must be assessed in the context of release from a sentence to confinement; the question in each case is whether the burdens are such that they result in an increase in the punishment of confinement adjudged by the court-martial; such an assessment requires a case-specific analysis
8. appellant failed to demonstrate that his participation in the mandatory supervised release program produced an impermissible increase in the punishment adjudged by the court-martial; appellant’s declaration, which covered only a portion of the time he was in the mandatory supervised release program, did not provide a clear record upon which an appellate court could evaluate whether the conditions of his mandatory supervised release produced an increase in his sentence
9. appellant failed to establish that it was improper to place him on involuntary appellate leave and deny him pay and allowances following his release from confinement under the mandatory supervised release program where he did not demonstrate that the conditions of his supervised release were so restrictive in nature or duration that they had the claimed effect of retaining him on active duty without pay
10. appellant’s contention that he was improperly placed on involuntary appellate leave following his release from confinement under the mandatory supervised release program, because under an Air Force Regulation he had not technically completed his period of confinement where he was under a continuing threat of return to prison if he violated the terms of his release, did not fall within the CAAF’s scope of review under Article 67, UCMJ; the relationship between completion of confinement and commencement of leave is a matter governed by administrative regulations and service practices and appellant failed to demonstrate that the applicable regulations, either on their face or as applied, violated Article 76a, UCMJ, or any other provision of the UCMJ

Trial Stages: Sentence and Punishment: Cruel and Unusual Punishment

1. the Eighth Amendment prohibits cruel and unusual punishments; similarly, Article 55, UCMJ, prohibits cruel or unusual punishment; Article 55, UCMJ, also prohibits specified punishments, such as use of irons except for the purpose of safe custody
2. the Eighth Amendment prohibits punishments that are incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the unnecessary and wanton infliction of pain
3. the conditions of mandatory supervised release that required appellant to participate in a sex offender treatment program, to have no contact with the victims without the prior approval of his probation officer, to abstain from the use and possession of pornography, to consent to periodic examinations of his computer, to abstain from locations that act as a sexual stimulus, to register as a sex offender, to participate in alcohol and narcotics abstention meetings, to waive confidentiality in his relations with the sponsor of the treatment program, and to abstain from consuming alcohol did not constitute cruel or unusual punishment within the Eighth Amendment standards articulated by the Supreme Court

Trial Stages: Appeals: Scope of Review

1. on direct appeal, the scope of CAAF’s review does not extend to supervision of all aspects of the confinement and release process; rather, its review of post-trial confinement and release conditions on direct appeal is limited to the impact of such conditions on the findings and the sentence
2. appellant’s contention that he was improperly placed on involuntary appellate leave following his release from confinement under the mandatory supervised release program, because under an Air Force Regulation he had not technically completed his period of confinement where he was under a continuing threat of return to prison if he violated the terms of his release, did not fall within the CAAF’s scope of review under Article 67, UCMJ; the relationship between completion of confinement and commencement of leave is a matter governed by administrative regulations and service practices and appellant failed to demonstrate that the applicable regulations, either on their face or as applied, violated Article 76a, UCMJ, or any other provision of the UCMJ

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

1. an appellate court reviews allegations of cruel or unusual punishment under a de novo standard
2. in an appellate court’s evaluation of both constitutional and statutory allegations of cruel or unusual punishment, it applies the Supreme Court’s Eighth Amendment jurisprudence in the absence of legislative intent to create greater protections in the UCMJ
3. an appellate court reviews de novo claims that punishment was increased without providing the requisite constitutional, statutory, and regulatory components of notice and an opportunity to respond
4. although reviewing authorities have the power to commute a sentence to a different form of punishment, this authority may not be exercised in a manner that increases the severity of the punishment; the question of whether a change in the form of punishment increases the severity of the punishment is contextual, requiring consideration of all the circumstances in a particular case
5. the burden is on the party challenging the conditions of mandatory supervised release program to demonstrate that there has been an increase above the punishment of confinement imposed at trial
6. when an appellant asks an appellate court to review the post-trial administration of a sentence, that court is typically confronted by issues in which the pertinent facts are not in the record of trial; in such a case, it is particularly important that the appellant provide the court with a clear record of the facts and circumstances relevant to the claim of legal error; the information about the personal, psychological, economic, and family impact of such measures is primarily in the control of the party appealing the sentence, and that party bears the responsibility of submitting detailed documentation
7. an appellate court reviews claims as to the providence of a plea under a de novo standard
8. an appellant who challenges the providence of a guilty plea must demonstrate a substantial basis in law and fact for questioning the guilty plea
9. when the challenge to the providence of a guilty plea concerns an appellant’s claimed misunderstanding of the collateral consequences of a court-martial, such as an early release program, appellant must demonstrate that the collateral consequences are major and appellant’s misunderstanding of the consequences (1) results foreseeably and almost inexorably from the language of a pretrial agreement; (2) is induced by the trial judge’s comments during the providence inquiry; or (3) is made readily apparent to the judge, who nonetheless fails to correct that misunderstanding; in short, chief reliance must be placed on defense counsel to inform an accused about the collateral consequences of a court-martial conviction and to ascertain his willingness to accept those consequences