U.S. v. Parrish, 65 M.J. 361

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. Article 66(c), UCMJ, does not authorize a court of criminal appeals to decide disputed questions of material fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties; rather, the record of trial must be expanded through an evidentiary hearing conducted in accordance with United States v. DuBay, 17 CMA 147, 37 CMR 411 (1967)

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Article 66(c), UCMJ, does not authorize a court of criminal appeals to decide disputed questions of material fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties; rather, the record of trial must be expanded through an evidentiary hearing conducted in accordance with United States v. DuBay, 17 CMA 147, 37 CMR 411 (1967)
2. in United States v. Ginn, 47 MJ 236, a number of factors are set forth under which a post-trial evidentiary hearing is not required to decide disputed questions of material fact pertaining to a post-trial claim resulting from conflicting affidavits submitted by the parties; the fourth Ginn factor precludes the need for a DuBay hearing when the appellate filings and the record as a whole compellingly demonstrate the improbability of appellant’s assertions
3. the court of criminal appeals erred in resolving the issue as to whether a material term of the pretrial agreement included deferral of the adjudged reduction in grade without a post-trial evidentiary hearing; although the appellate filings together with the record as a whole compellingly demonstrated the improbability of a sub rosa agreement to defer reduction in grade, that conclusion did not address the actual allegation in appellant’s affidavit that he and his wife had been misinformed by both defense counsel and trial counsel as to whether the pretrial agreement deferred the reduction and the possibility that appellant and the government shared a mutual misunderstanding as to the terms of the agreement; confusion, inconsistency, and factual gaps pervade the appellate filings and raise questions as to their reliability, accuracy, and completeness; the record does not support a conclusion that the improbability of appellant’s actual assertions was compellingly demonstrated under the fourth Ginn factor; in addition, the other Ginn factors which would allow resolution without a post-trial evidentiary hearing were not applicable here; under these circumstances, resolution of the issue required factfinding: to develop the full factual scenario underlying appellant’s claim that he and his wife were misinformed by both defense counsel and trial counsel as to the effect of the written pretrial agreement on his pay; to consider, if applicable, whether deferment of reduction in grade was material to appellant’s decision to enter a guilty plea; and to uncover whether prejudicial legal errors occurred; in this context, remand to the court of criminal appeals for a DuBay hearing was necessary

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

1. whether the court of criminal appeals correctly resolved appellant’s post-trial claim without a factfinding hearing is a legal issue that CAAF reviews de novo