U.S. v. Cook, 86 M.J. 104

First Principles: Constitutional Matters: Generally

1. in general, a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution
2. while the general rule presuming the availability of waiver is broad, it is not without limitations; but these limits are narrow and relate to situations in which, on its face, the prosecution may not constitutionally be maintained, thereby leaving a court with no power to enter the conviction or impose the sentence in the first place

First Principles: Constitutional Matters: Due Process

1. appellant's claim on appeal that the military judge incorrectly calculated the maximum punishment for the offense of illegally transporting aliens within the United States does not implicate his fundamental due process rights and did not warrant heightened scrutiny in determining whether his claim was waived; the correctness of the military judge's maximum punishment calculation did not inherently undermine the fairness of the sentencing process because rather than directly affecting how a military judge settles upon an appropriate penalty to impose, the statutory maximum authorized punishment instead serves only to delineate the outer bounds of the judge's discretion in imposing a penalty

Trial Stages: Sentence and Punishment: Generally

1. a maximum punishment calculation error claim is waivable
2. a court-martial shall impose punishment that is sufficient, but not greater than, to promote justice and to maintain good order and discipline in the armed forces
3. rather than directly affecting how a military judge settles upon an appropriate penalty to impose, the statutory maximum authorized punishment instead serves to delineate the outer bounds of the judge's discretion in imposing a penalty

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

1. in this case, there is nothing to indicate an abuse of discretion by the CCA in determining what deference to give to the court-martial with respect to any of the evidence where the CCA explained that it would adhere to the new factual sufficiency standard

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

1. the CAAF does not have the statutory authority to review the factual sufficiency of the evidence to support a conviction

Trial Stages: Appeals: Preservation of Error / Plain Error

1. while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge
2. an appellate court reviews forfeited issues for plain error, but it cannot review waived issues at all because a valid waiver leaves no error for it to correct on appeal

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

1. an appellate court considers the issue of waiver as a question of law under a de novo standard of review
2. an appellate court reviews forfeited issues for plain error, but it cannot review waived issues at all because a valid waiver leaves no error for it to correct on appeal

Trial Stages: Appeals: Waiver

1. an appellate court considers the issue of waiver as a question of law under a de novo standard of review
2. waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; put differently, a forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law; while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge
3. an appellate court reviews forfeited issues for plain error, but it cannot review waived issues at all because a valid waiver leaves no error for it to correct on appeal
4. a maximum punishment calculation error claim is waivable
5. in general, a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution
6. while the general rule presuming the availability of waiver is broad, it is not without limitations; but these limits are narrow and relate to situations in which, on its face, the prosecution may not constitutionally be maintained, thereby leaving a court with no power to enter the conviction or impose the sentence in the first place
7. an appellant cannot waive his right to appeal a sentence that is unlawful because it exceeds the statutory maximum
8. in this case, there was an insufficient basis to exclude from the general waiver rule appellant's claim that the military judge incorrectly calculated the maximum authorized punishment; even if the military judge erred in his maximum punishment calculation, appellant still received a sentence within the statutorily authorized limits, and considering that appellants can waive challenges to issues as significant as a military judge's failure to include key elements in his panel instructions, there is not an adequate reason to handle appellant's claim differently
9. appellant's claim on appeal that the military judge incorrectly calculated the maximum punishment for the offense of illegally transporting aliens within the United States does not implicate his fundamental due process rights and did not warrant heightened scrutiny in determining whether his claim was waived; the correctness of the military judge's maximum punishment calculation did not inherently undermine the fairness of the sentencing process because rather than directly affecting how a military judge settles upon an appropriate penalty to impose, the statutory maximum authorized punishment instead serves only to delineate the outer bounds of the judge's discretion in imposing a penalty
10. in this case, appellant's claim that a military judge incorrectly calculated the maximum authorized punishment for an offense and thereby deprived him of a fair sentencing proceeding was subject to general waiver principles, and appellant waived such a claim at trial when his defense counsel not only failed to object to the maximum punishment calculation, at multiple points he affirmatively agreed with the proposed calculation adopted by the military judge; a trial defense counsel's agreement is akin to a statement of no objection, which is sufficient to constitute affirmative waiver
11. the focus of waiver is on the nature of the right relinquished and not the merits of the underlying claim based on the state of the law