U.S. v. Jessie, 79 M.J. 437

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. with respect to the scope of a CCA’s review of sentences under Article 66(c), UCMJ [now Article 66(d), UCMJ], a CCA can affirm only so much of a sentence that it finds correct in law; this provision prevents a CCA from affirming an unlawful sentence, such as one that violates the prohibition against cruel and unusual punishment in the Eighth Amendment and Article 55, UCMJ; in addition, a CCA may affirm only so much of a sentence as it determines should be approved; pursuant to these words, a CCA may not affirm any portion of a sentence that it finds excessive; a CCA has broad discretionary power to review sentence appropriateness; finally, a CCA must review a sentence on the basis of the entire record; the phrase entire record includes the record of trial and allied papers; under the Rules for Courts-Martial applicable to this case, the record of trial contains all of the items listed in RCM 1103(b)(2), and the allied papers are items now identified as matters attached to the record in accordance with RCM 1103(b)(3); additionally, the entire record also includes briefs and arguments that government and defense counsel (and appellant personally) might present regarding matters in the record of trial and allied papers
2. the nature of the appellate issue determines the extent to which a CCA may consider matters attached to the record; for example, a CCA may consider a rejected exhibit (i.e., something that would not be part of the record of trial), in an appeal challenging a ruling that denied admission of the exhibit; in contrast, in reviewing the legal and factual sufficiency of the evidence, a CCA may consider only admitted evidence found in the record of trial
3. a CCA may not consider anything outside of the entire record of trial when reviewing a sentence under Article 66(c), UCMJ [now Article 66(d), UCMJ], because the text of Article 66(c), UCMJ, does not permit a CCA to consider matters that are outside the entire record
4. an exception to the rule restricting a CCA’s review to matters within the entire record allows a CCA to consider affidavits and gather additional facts through a DuBay [17 CMA 147, 37 CMR 411 (1967)] hearing when doing so is necessary for resolving issues raised by materials in the record
5. two CAAF precedents, Erby [54 MJ 476 (CAAF 2001)] and Pena [64 MJ 259 (CAAF 2007)] allow an appellant to raise and present evidence of Eighth Amendment claims of cruel and unusual punishment and violations of Article 55, UCMJ, to a CCA even though there is nothing in the record regarding those claims; today, the instant case cabins but does not overrule Erby or Pena, with respect to Article 55, UCMJ, or Eighth Amendment claims; what is decided today is that the practice of considering material outside the record should not be expanded beyond the context of Article 55, UCMJ, and the Eighth Amendment
6. in this case, where appellant had been convicted of sexually assaulting a child and where for the first time on appeal before the CCA asked that court to reduce his sentence on the grounds that the visitation policy at the confinement facility violated his First and Fifth Amendment rights by depriving him of all direct and indirect contact with his biological children, the CCA did not err by refusing to consider specific evidence of appellant’s confinement conditions because the entire record of trial contained no information about the visitation policy or its application to him; neither the record of trial nor the other matters attached to the record of trial mentioned the policy; instead, appellant first raised his claims regarding the policy in the form of an affidavit, with attachments, submitted to the CCA; in accordance with the text and the CAAF’s interpretation of Article 66(c), UCMJ [now Article 66(d), UCMJ], the CCA could not consider this material

Trial Stages: Appeals: Scope of Review

1. with respect to the scope of a CCA’s review of sentences under Article 66(c), UCMJ [now Article 66(d), UCMJ], a CCA can affirm only so much of a sentence that it finds correct in law; this provision prevents a CCA from affirming an unlawful sentence, such as one that violates the prohibition against cruel and unusual punishment in the Eighth Amendment and Article 55, UCMJ; in addition, a CCA may affirm only so much of a sentence as it determines should be approved; pursuant to these words, a CCA may not affirm any portion of a sentence that it finds excessive; a CCA has broad discretionary power to review sentence appropriateness; finally, a CCA must review a sentence on the basis of the entire record; the phrase entire record includes the record of trial and allied papers; under the Rules for Courts-Martial applicable to this case, the record of trial contains all of the items listed in RCM 1103(b)(2), and the allied papers are items now identified as matters attached to the record in accordance with RCM 1103(b)(3); additionally, the entire record also includes briefs and arguments that government and defense counsel (and appellant personally) might present regarding matters in the record of trial and allied papers
2. the nature of the appellate issue determines the extent to which a CCA may consider matters attached to the record; for example, a CCA may consider a rejected exhibit (i.e., something that would not be part of the record of trial), in an appeal challenging a ruling that denied admission of the exhibit; in contrast, in reviewing the legal and factual sufficiency of the evidence, a CCA may consider only admitted evidence found in the record of trial
3. a CCA may not consider anything outside of the entire record of trial when reviewing a sentence under Article 66(c), UCMJ [now Article 66(d), UCMJ], because the text of Article 66(c), UCMJ, does not permit a CCA to consider matters that are outside the entire record
4. an exception to the rule restricting a CCA’s review to matters within the entire record allows a CCA to consider affidavits and gather additional facts through a DuBay [17 CMA 147, 37 CMR 411 (1967)] hearing when doing so is necessary for resolving issues raised by materials in the record
5. two CAAF precedents, Erby [54 MJ 476 (CAAF 2001)] and Pena [64 MJ 259 (CAAF 2007)] allow an appellant to raise and present evidence of Eighth Amendment claims of cruel and unusual punishment and violations of Article 55, UCMJ, to a CCA even though there is nothing in the record regarding those claims; today, the instant case cabins but does not overrule Erby or Pena, with respect to Article 55, UCMJ, or Eighth Amendment claims; what is decided today is that the practice of considering material outside the record should not be expanded beyond the context of Article 55, UCMJ, and the Eighth Amendment
6. in this case, where appellant had been convicted of sexually assaulting a child and where for the first time on appeal before the CCA asked that court to reduce his sentence on the grounds that the visitation policy at the confinement facility violated his First and Fifth Amendment rights by depriving him of all direct and indirect contact with his biological children, the CCA did not err by refusing to consider specific evidence of appellant’s confinement conditions because the entire record of trial contained no information about the visitation policy or its application to him; neither the record of trial nor the other matters attached to the record of trial mentioned the policy; instead, appellant first raised his claims regarding the policy in the form of an affidavit, with attachments, submitted to the CCA; in accordance with the text and the CAAF’s interpretation of Article 66(c), UCMJ [now Article 66(d), UCMJ], the CCA could not consider this material

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

1. whether a CCA is authorized to consider materials outside the record that appellant submits in support of constitutional claims when assessing his sentence is question of law that an appellate court reviews de novo