U.S. v. St. Blanc, 70 M.J. 424

Military Justice Personnel: Defense Function: Responsibilities

1. appellant should be correctly informed by his defense counsel of the maximum punishment he faces before making fundamental decisions in his case

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. where the accused has been grossly misled by a miscalculation or erroneous sentence estimation by defense counsel, such conduct may constitute ineffective assistance of counsel
2. under the law as it existed when appellant’s counsel calculated the maximum sentence, it was not a gross mischaracterization to state that the maximum sentence for possession of “what appears to be” child pornography could be calculated by reference to the Child Pornography Prevention Act; at the time, Beaty (70 MJ 39), which held that the maximum sentence for a specification of possessing “what appears to be” child pornography could not be determined by reference to the CPPA, had not been decided

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. if the accused requests trial by military judge alone, the military judge must ensure that the accused has: (1) consulted with defense counsel about the choice; (2) been informed of the identity of the military judge; and (3) been informed of the right to trial by members; in this way, RCM 903 ensures that an accused understands the nature of the choice before waiving the right to trial by members

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. appellant was charged with possession of “what appears to be” child pornography, yet his maximum sentence was determined by reference to the Child Pornography Prevention Act; Beaty (70 MJ 39) held that the maximum sentence for a specification of possessing “what appears to be” child pornography cannot be determined by reference to the CPPA; as a result, and in the absence of the President setting a sentence maximum for such an offense, the maximum sentence for that offense is that of a general or simple disorder under Article 134, UCMJ - four months of confinement and forfeiture of two-thirds pay per month for four months

Trial Stages: Merits: Trial Procedures › Forum election

1. within the military justice system, an accused has a right to trial before a panel of military members; an accused also has a choice: prior to trial, an accused has the right to elect to be tried by members or by a military judge alone
2. in the military context, RCM 903 protects the forum selection right codified in Article 16, UCMJ, by ensuring that an accused’s waiver of the right to trial by members is knowing and voluntary; to this end, the request for trial by military judge alone must be made in a signed writing by the accused or made orally on the record; if the accused requests trial by military judge alone, the military judge must further ensure that the accused has: (1) consulted with defense counsel about the choice; (2) been informed of the identity of the military judge; and (3) been informed of the right to trial by members; in this way, RCM 903 ensures that an accused understands the nature of the choice before waiving the right to trial by members
3. appellant should be correctly informed by his defense counsel of the maximum punishment he faces before making fundamental decisions in his case
4. appellant’s decision to seek trial by military judge alone was knowing and voluntary even though his defense counsel misadvised him of the maximum punishment that he faced; the right to be properly informed of the sentence maximum is not encompassed within the right to elect the forum for trial, Article 16, UCMJ; that right is protected and implemented by RCM 903, which requires that the election be knowing and voluntary; nothing in the MCM or UCMJ suggests any reason to part ways with the federal courts, which treat erroneous advice as to sentence in a contested case as potential ineffective assistance of counsel and do not analyze it as potential involuntary waiver of a forum selection right; nor is there any textual or practical reason to do so; while there are myriad reasons an accused may choose one forum over another, RCM 903 does not require that a military judge inquire into any non-enumerated factors or collateral matters that may have influenced the accused’s election; moreover, the difference between an accused’s potential maximum punishment prior to arraignment, when forum selection is made, and the actual maximum sentence after findings - impacted by dismissal of a charge or specification, merger of specifications, findings of guilty only to a lesser included offense, or findings of not guilty - can be significant; thus, it would create an insoluble conundrum if failure of pretrial sentencing advice in this regard in a contested case were assessed under any standard other than ineffective assistance of counsel; in this case, under the terms of RCM 903, appellant made a knowing and voluntary election of trial by military judge alone

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. appellant was charged with possession of “what appears to be” child pornography, yet his maximum sentence was determined by reference to the Child Pornography Prevention Act; Beaty (70 MJ 39) held that the maximum sentence for a specification of possessing “what appears to be” child pornography cannot be determined by reference to the CPPA; as a result, and in the absence of the President setting a sentence maximum for such an offense, the maximum sentence for that offense is that of a general or simple disorder under Article 134, UCMJ - four months of confinement and forfeiture of two-thirds pay per month for four months

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, the military judge calculated an incorrect maximum punishment for a specification of possessing “what appears to be” child pornography in reliance on the CPPA; that error was plain and obvious, and given the disparity between the maximum sentence of twelve years calculated by the military judge and the actual maximum sentence of two years and four months, this error may have substantially influenced the sentence and materially prejudiced appellant’s substantial rights; accordingly, the sentence must be set aside and a rehearing on sentence authorized

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

1. the interpretation of UCMJ and RCM provisions and the military judge’s compliance with them are questions of law, which an appellate court reviews de novo
2. the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo