U.S. v. Cole, 84 M.J. 398

Military Justice Personnel: Military Judge: Generally

1. in this case, during the providence inquiry into the charged offense of simple assault with an unloaded firearm, the military judge improperly identified the offense for the accused as an assault consummated by battery, and he erroneously listed for the accused the elements for aggravated assault with a dangerous weapon; as such, it was unclear whether the military judge sentenced the accused for aggravated assault with a dangerous weapon or for simple assault with an unloaded firearm, thereby materially prejudicing appellant's substantial right to be sentenced for the correct offense based on a consideration of the nature, circumstances, and seriousness of the offense
2. military judges are presumed to know the law and to follow it absent clear evidence to the contrary

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in imposing a sentence, military judges are required to consider the nature and circumstances of the offense; additionally, they must take into account the need for the sentence to reflect the seriousness of the offense and provide just punishment for the offense; in determining a sentence, the military judge may consider any evidence that the military judge admitted during presentencing and findings

Trial Stages: Sentence and Punishment: Evidence

1. in imposing a sentence, military judges are required to consider the nature and circumstances of the offense; additionally, they must take into account the need for the sentence to reflect the seriousness of the offense and provide just punishment for the offense; in determining a sentence, the military judge may consider any evidence that the military judge admitted during presentencing and findings

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

1. where an issue as to the providence of a plea was not raised at trial and appellant's plea agreement contained a provision waiving all waivable motions, the issue before an appellate court arguably was waived; however, where the CCA specified the issue for review and neither party contends to CAAF that the issue was waived, CAAF will treat the issue as forfeited and review for plain error
2. CAAF will not overturn findings of fact by a CCA unless they are clearly erroneous or unsupported by the record

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when a forfeited error is nonconstitutional, the appellant must show that the error results in material prejudice to the substantial rights of the accused; in the context of a sentencing error, the test for prejudice is whether the error substantially influenced the adjudged sentence; if the forfeited error is constitutional in nature, then material prejudice is assessed using the harmless beyond a reasonable doubt standard; for such errors, the burden is on the government to show that the error was harmless beyond a reasonable doubt; structural constitutional errors generally warrant automatic reversal
2. in this case, during the providence inquiry into the charged offense of simple assault with an unloaded firearm, the military judge improperly identified the offense for the accused as an assault consummated by battery, and he erroneously listed for the accused the elements for aggravated assault with a dangerous weapon; as such, it was unclear whether the military judge sentenced the accused for aggravated assault with a dangerous weapon or for simple assault with an unloaded firearm, thereby materially prejudicing appellant's substantial right to be sentenced for the correct offense based on a consideration of the nature, circumstances, and seriousness of the offense

Trial Stages: Appeals: Preservation of Error / Plain Error

1. issues not raised at trial are reviewed for plain error, so long as they are not waived
2. where an issue as to the providence of a plea was not raised at trial and appellant's plea agreement contained a provision waiving all waivable motions, the issue before an appellate court arguably was waived; however, where the CCA specified the issue for review and neither party contends to CAAF that the issue was waived, CAAF will treat the issue as forfeited and review for plain error
3. to prevail on plain error review, appellant bears the burden of establishing (1) error, (2) that is clear or obvious, and (3) results in material prejudice to a substantial right of the accused

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

1. questions of law arising from a guilty plea are reviewed by an appellate court de novo
2. where an issue as to the providence of a plea was not raised at trial and appellant's plea agreement contained a provision waiving all waivable motions, the issue before an appellate court arguably was waived; however, where the CCA specified the issue for review and neither party contends to CAAF that the issue was waived, CAAF will treat the issue as forfeited and review for plain error
3. when a forfeited error is nonconstitutional, the appellant must show that the error results in material prejudice to the substantial rights of the accused; in the context of a sentencing error, the test for prejudice is whether the error substantially influenced the adjudged sentence; if the forfeited error is constitutional in nature, then material prejudice is assessed using the harmless beyond a reasonable doubt standard; for such errors, the burden is on the government to show that the error was harmless beyond a reasonable doubt; structural constitutional errors generally warrant automatic reversal

Trial Stages: Appeals: Waiver

1. where an issue as to the providence of a plea was not raised at trial and appellant's plea agreement contained a provision waiving all waivable motions, the issue before an appellate court arguably was waived; however, where the CCA specified the issue for review and neither party contends to CAAF that the issue was waived, CAAF will treat the issue as forfeited and review for plain error