U.S. v. Lee, 73 M.J. 166

Trial Stages: Appeals: Waiver

1. a plea of guilty waives nonjurisdictional errors that occurred in the earlier stages of the trial proceedings; RCM 910(a)(2) does create an exception where an accused enters into a conditional guilty plea; however, because there is no constitutional right to enter such a plea, it follows that compliance with the regulation is the sole means of entering a conditional plea and preserving the issue on appeal
2. while the waiver doctrine, by which a guilty plea waives nonjurisdictional errors that occurred in earlier stages of the trial proceedings, is not without limits, those limits are narrow and relate to situations in which, on their face, the prosecution may not constitutionally be maintained; such limits do not arise where an appellant merely complains of antecedent constitutional violations or a deprivation of constitutional rights that occurred prior to the entry of the guilty plea; rather they apply where on the face of the record the court had no power to enter the conviction or impose the sentence
3. where an Article 10, UCMJ, speedy trial motion is litigated at trial, that issue is preserved for appeal despite an unconditional guilty plea; this narrow exception is based on the unique nature of the protections set forth in Article 10
4. in this case, appellant’s unconditional guilty pleas on rehearing waived review of any speedy appellate review claim relating to the post-trial period preceding the rehearing, including any prejudice from any additional time spent on a state public sex offender registry prior to the waiver; appellant’s guilty pleas occurred immediately after a motion for relief for the same post-trial appellate delay was fully briefed, argued, and denied, and appellant did not claim that the court-martial lacked jurisdiction over the offenses, did not litigate a motion under Article 10, UCMJ, did not challenge the voluntary and intelligent character of his pleas, and did not in any other way attempt to preserve the appellate delay issue for appeal

Miscellaneous Matters: Speedy Trial: Article 10

1. where an Article 10, UCMJ, speedy trial motion is litigated at trial, that issue is preserved for appeal despite an unconditional guilty plea; this narrow exception is based on the unique nature of the protections set forth in Article 10

Miscellaneous Matters: Speedy Trial: Post-Trial

1. in this case, appellant’s unconditional guilty pleas on rehearing waived review of any speedy appellate review claim relating to the post-trial period preceding the rehearing, including any prejudice from any additional time spent on a state public sex offender registry prior to the waiver; appellant’s guilty pleas occurred immediately after a motion for relief for the same post-trial appellate delay was fully briefed, argued, and denied, and appellant did not claim that the court-martial lacked jurisdiction over the offenses, did not litigate a motion under Article 10, UCMJ, did not challenge the voluntary and intelligent character of his pleas, and did not in any other way attempt to preserve the appellate delay issue for appeal
2. applying the four-factor analysis of US v. Moreno, 63 MJ 129 (CAAF 2006) [(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice] to the 141-day period between appellant’s sentencing rehearing and action by the convening authority, the CAAF concluded that the delay did not violate appellant’s due process right to speedy appellate review; although the 141-day was facially unreasonable under Moreno [where the convening authority did not act within 120 days of the completion of trial], 20 of those days were the result of appellant’s request for additional time to submit clemency matters, and clemency was awarded; furthermore, appellant did not demand speedy review during this period; and most importantly, because appellant’s name had already been removed from the state public sex offender registry before this 141-day period, he failed to identify any particularized prejudice resulting from this delay