U.S. v. Gonzalez, 79 M.J. 466

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the CCA prejudicially erred when after setting aside one of appellant’s convictions and the sentence, it remanded the case to the convening authority with instructions to take one of three possible actions on remand, one of which included dismissing the specification at issue and reassessing the sentence with a sentence cap of a DD and confinement for six years; it also prejudicially erred in conducting a sentence reassessment in a footnote wherein it concluded that the sentence adjudged, absent the one conviction, would have been at least a DD and confinement for 6 years
2. the right to a proper and complete Article 66, UCMJ, review is a substantial right of an accused
3. in this case, where the CCA did not conduct a proper Article 66, UCMJ, review because the CCA’s sentence reassessment and sentence cap went beyond its statutory authority after setting aside one of the convictions and the sentence, appellant suffered material prejudice to a substantial right; furthermore, the CCA’s ultra vires action posed a substantial risk of interfering with the convening authority’s independent decision-making authority on remand by improperly influencing what the convening authority deemed to be an appropriate sentence; indeed, the record in this case squarely raised the specter of this improper influence because the convening authority was aware of the CCA’s putative sentence cap, and then approved that exact same sentence

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. the CCA prejudicially erred when after setting aside one of appellant’s convictions and the sentence, it remanded the case to the convening authority with instructions to take one of three possible actions on remand, one of which included dismissing the specification at issue and reassessing the sentence with a sentence cap of a DD and confinement for six years; it also prejudicially erred in conducting a sentence reassessment in a footnote wherein it concluded that the sentence adjudged, absent the one conviction, would have been at least a DD and confinement for 6 years
2. in this case, where the CCA did not conduct a proper Article 66, UCMJ, review because the CCA’s sentence reassessment and sentence cap went beyond its statutory authority after setting aside one of the convictions and the sentence, appellant suffered material prejudice to a substantial right; furthermore, the CCA’s ultra vires action posed a substantial risk of interfering with the convening authority’s independent decision-making authority on remand by improperly influencing what the convening authority deemed to be an appropriate sentence; indeed, the record in this case squarely raised the specter of this improper influence because the convening authority was aware of the CCA’s putative sentence cap, and then approved that exact same sentence

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, where the CCA did not conduct a proper Article 66, UCMJ, review because the CCA’s sentence reassessment and sentence cap went beyond its statutory authority after setting aside one of the convictions and the sentence, appellant suffered material prejudice to a substantial right; furthermore, the CCA’s ultra vires action posed a substantial risk of interfering with the convening authority’s independent decision-making authority on remand by improperly influencing what the convening authority deemed to be an appropriate sentence; indeed, the record in this case squarely raised the specter of this improper influence because the convening authority was aware of the CCA’s putative sentence cap, and then approved that exact same sentence

Trial Stages: Appeals: Waiver

1. in this case, appellant did not waive or forfeit his right to challenge the CCA’s authority to conduct a sentence reassessment or to impose a sentence cap after setting aside one of appellant’s convictions and the sentence where (1) there was no waiver by operation of law, (2) appellant had no basis to challenge the CCA’s authority in the remand proceedings before the convening authority because the convening authority clearly lacked the power to ignore or correct the CCA’s remand instructions, and (3) at the time appellant’s case was before the convening authority and the CCA, the CAAF had never addressed the CCA’s innovation of conducting a sentence reassessment and imposing a sentence cap when providing remand instructions to the convening authority
2. waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right