U.S. v. Chin, 75 M.J. 220

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. pursuant to its review under Article 66(c), UCMJ, a CCA may decide not to approve certain specifications because they constituted an unreasonable multiplication of charges, despite an accused’s PTA that waived all waivable motions
2. a case is subject to a complete appellate review by a CCA under Article 66(c), UCMJ, unless, after trial and sentencing, an accused waives appellate review altogether pursuant to Article 61, UCMJ
3. in line with the “limited power” language of Federal Rule of Criminal Procedure 52(b) and the CAAF’s more circumscribed statutory authority, an appellant may not raise on appeal, and the CAAF cannot rectify an error that was waived at trial; however, this “ordinary” rule does not apply to a CCA’s wholly dissimilar statutory review where Article 66(c), UCMJ, requires that the CCAs conduct a plenary review and that they affirm only such findings of guilty and the sentence or such part or amount of the sentence, as they find correct in law and fact and determine, on the basis of the entire record, should be approved
4. a complete Article 66, UCMJ, review is a substantial right of an accused, and a CCA may not rely on only selected portions of a record or allegations of error alone
5. if the sentence approved by the convening authority includes capital punishment, a punitive discharge, or confinement for one year or more, Article 66(c), UCMJ, provides for mandatory review, and the CCAs have an affirmative obligation to ensure that the findings and sentence in each such case are correct in law and fact and should be approved; there is no waiver exception in the statute, nor does reading one in make sense given the existence of Article 61, UCMJ, and its associated rules
6. while an accused is prevented from raising an issue by a waive all waivable motions provision, an accused has no authority to waive a CCA’s statutory mandate unless, through Article 61, UCMJ, procedures, the accused waives the right to appellate review altogether — and that election cannot be made until after the trial and sentencing; because Article 61, UCMJ, is the exclusive means by which an accused can waive the right to a complete appellate review, that right cannot be waived in a PTA, even when a “waive all waivable motions” provision is given full effect; it would defy logic to conclude that while an accused may not waive the right to complete appellate review as part of a PTA, she can nonetheless sidestep Article 61, UCMJ, and the temporal protections built into it by virtue of a waive all waivable motions provision in a PTA, permitting an accused to, in effect, waive the right to complete appellate review as part of a PTA; Article 66(c), UCMJ, cannot be construed in such a fashion that the particular and protective waiver procedure provided by Article 61, UCMJ, and its accompanying rules can be circumvented in this way, which would be at odds with the overall structure of the UCMJ; either a case is subject to a complete appellate review under Article 66(c), UCMJ, or it is not because such review was waived — after trial and sentencing — under Article 61, UCMJ
7. if an appellant elects to proceed with Article 66, UCMJ, review, then the CCA is commanded by statute to review the entire record and approve only that which should be approved; a fortiori, the CCAs are required to assess the entire record to determine whether to leave an accused’s waiver intact, or to correct the error
8. waiver at the trial level continues to preclude an appellant from raising the issue before either the CCA or the CAAF; and a waive all waivable motions provision or unconditional guilty plea continues to serve as a factor for a CCA to weigh in determining whether to nonetheless disapprove a finding or sentence; Article 66, UCMJ, is neither limitless nor standardless, and CCAs are presumed to know the law and follow it
9. in this case, where the CCA provided a detailed explanation for disapproving and merging offenses despite the accused’s waiver of all waivable motions, holding that this deviation from its past treatment and application of waiver was warranted by the facts of this case in that the charging scheme grossly exaggerated the accused’s criminality, it disapproved specifications based on a legal standard, citing the fact that the unreasonable multiplication of charges was so plainly presented in this case; that rationale is based on the legal standard the CAAF gave it, and the CCA’s action was well within the limitations of its Article 66(c), UCMJ, review

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. in line with the “limited power” language of Federal Rule of Criminal Procedure 52(b) and the CAAF’s more circumscribed statutory authority, an appellant may not raise on appeal, and the CAAF cannot rectify an error that was waived at trial; however, this “ordinary” rule does not apply to a CCA’s wholly dissimilar statutory review where Article 66(c), UCMJ, requires that the CCAs conduct a plenary review and that they affirm only such findings of guilty and the sentence or such part or amount of the sentence, as they find correct in law and fact and determine, on the basis of the entire record, should be approved

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

1. the scope and meaning of both Article 66(c), UCMJ, and Article 61, UCMJ, are matters of statutory interpretation, questions of law reviewed de novo

Trial Stages: Appeals: Waiver

1. as a general matter, when an error is waived, the result is that there is no error at all and an appellate court is without authority to reverse a conviction on that basis
2. if the sentence approved by the convening authority includes capital punishment, a punitive discharge, or confinement for one year or more, Article 66(c), UCMJ, provides for mandatory review, and the CCAs have an affirmative obligation to ensure that the findings and sentence in each such case are correct in law and fact and should be approved; there is no waiver exception in the statute, nor does reading one in make sense given the existence of Article 61, UCMJ, and its associated rules
3. while an accused is prevented from raising an issue by a waive all waivable motions provision, an accused has no authority to waive a CCA’s statutory mandate unless, through Article 61, UCMJ, procedures, the accused waives the right to appellate review altogether — and that election cannot be made until after the trial and sentencing; because Article 61, UCMJ, is the exclusive means by which an accused can waive the right to a complete appellate review, that right cannot be waived in a PTA, even when a “waive all waivable motions” provision is given full effect; it would defy logic to conclude that while an accused may not waive the right to complete appellate review as part of a PTA, she can nonetheless sidestep Article 61, UCMJ, and the temporal protections built into it by virtue of a waive all waivable motions provision in a PTA, permitting an accused to, in effect, waive the right to complete appellate review as part of a PTA; Article 66(c), UCMJ, cannot be construed in such a fashion that the particular and protective waiver procedure provided by Article 61, UCMJ, and its accompanying rules can be circumvented in this way, which would be at odds with the overall structure of the UCMJ; either a case is subject to a complete appellate review under Article 66(c), UCMJ, or it is not because such review was waived — after trial and sentencing — under Article 61, UCMJ
4. if an appellant elects to proceed with Article 66, UCMJ, review, then the CCA is commanded by statute to review the entire record and approve only that which should be approved; a fortiori, the CCAs are required to assess the entire record to determine whether to leave an accused’s waiver intact, or to correct the error
5. waiver at the trial level continues to preclude an appellant from raising the issue before either the CCA or the CAAF; and a waive all waivable motions provision or unconditional guilty plea continues to serve as a factor for a CCA to weigh in determining whether to nonetheless disapprove a finding or sentence; Article 66, UCMJ, is neither limitless nor standardless, and CCAs are presumed to know the law and follow it
6. in this case, where the CCA provided a detailed explanation for disapproving and merging offenses despite the accused’s waiver of all waivable motions, holding that this deviation from its past treatment and application of waiver was warranted by the facts of this case in that the charging scheme grossly exaggerated the accused’s criminality, it disapproved specifications based on a legal standard, citing the fact that the unreasonable multiplication of charges was so plainly presented in this case; that rationale is based on the legal standard the CAAF gave it, and the CCA’s action was well within the limitations of its Article 66(c), UCMJ, review