U.S. v. Folts, 86 M.J. 84

First Principles: Jurisdiction: Generally

1. the scope of an appellate court's authority, like other questions of jurisdiction, is a legal question reviewed de novo; the burden to establish jurisdiction rests with the party invoking the court's jurisdiction

First Principles: Jurisdiction: Of Courts of Criminal Appeals

1. the courts of criminal appeals are courts of limited jurisdiction, defined entirely by statute
2. Article 66(b)(3), UCMJ, 10 USC § 866(b)(3) (2018), provided that a CCA shall have jurisdiction over a court-martial in which the judgment entered includes death, a punitive discharge, or confinement for two years or more, a provision known as "automatic review" by the CCA; and prior to December 23, 2022, Article 66(b)(1)(A), UCMJ, 10 U.S.C. § 866(b)(1)(A) (2018), provided that a servicemember convicted by a court-martial whose sentence included confinement for more than six months and less than two years, with no punitive discharge, had the right to apply for review by the CCA within a certain period of time, a provision known as a "direct appeal" by the CCA; cases in which the sentence did not qualify for either automatic review or a direct appeal, or in which a convicted servicemember elected not to exercise the right to a direct appeal or withdrew from appellate review, were reviewed by a designated attorney pursuant to Article 65(d)(2), UCMJ, 10 U.S.C. § 865(d)(2) (2018)
3. a servicemember whose case was reviewed by an attorney pursuant to Article 65(d)(2), UCMJ, had a potential route for review by the CCA, as Article 69, UCMJ, 10 U.S.C. § 869 (2018), provided that such a servicemember could apply for review by the Judge Advocate General; such an application would be timely if submitted within one year after completion of Article 65(d)(2), UCMJ, review; after the Judge Advocate General completed the Article 69(c), UCMJ, review, the servicemember could then apply to the CCA for review, and the CCA had the discretion to grant such review only if (1) the application demonstrated a substantial basis for concluding that the action on review under Article 69(c), UCMJ, constituted prejudicial error, and (2) the servicemember filed the application within sixty days of notification of the Judge Advocate General's decision or sixty days after notification was deposited in the United States mail, whichever was earlier
4. on December 23, 2022, Congress passed the FY23 NDAA; the FY23 NDAA, while retaining the same criteria for automatic CCA review, significantly expanded eligibility for direct appeals of general and special court martial convictions under Article 66, UCMJ; in its new form, Article 66(b)(1)(A), UCMJ (Supp. IV 2019-2023), provides that a lower court has jurisdiction over a timely appeal from the judgment of a court-martial, entered into the record under Article 60c(a), UCMJ, 10 U.S.C. § 860c(a) (2018), that includes a finding of guilty; in effect, the FY23 NDAA made every general or special court-martial conviction reviewable by the lower court, regardless of sentence
5. although Congress could have chosen to remain silent on the effective date of the FY23 NDAA which would have meant that it took effect on the date of enactment, instead Congress gave clear direction to what cases could not take advantage of the FY23 NDAA by providing that the changes to Articles 66 and 69, UCMJ, shall not apply to: (1) any matter that was submitted before the date of enactment of this Act to a Court of Criminal Appeals, or (2) any matter that was submitted before the date of the enactment of this Act to a Judge Advocate General under Article 69, UCMJ; an appellant can only submit matters to the CCA or the Judge Advocate General in a case where a court martial judgment has already occurred, so this provision gives clear direction by Congress that it foresaw applicability over judgments that occurred prior to its enactment
6. the FY23 NDAA is clear and unambiguous in its application; to qualify for review under the new Article 66, UCMJ, there must be a court-martial conviction that has not already been appealed through Article 66 or 69, UCMJ, as of the effective date of the amendment
7. in this case, at the time of appellant's conviction, his case was ineligible for direct appeal under the applicable version of Article 66(b)(1), UCMJ, because he had not received a sentence of confinement exceeding six months and he was not entitled to an automatic review under the applicable version of Article 66(b)(3), UCMJ, because his sentence did not include a punitive discharge; however, five months after appellant's conviction, in the FY23 NDAA, Congress amended Article 66, UCMJ, to afford direct appellate review by a CCA to all servicemembers who were convicted at a general or special court-martial, regardless of the sentence received; in addition, appellant's judgment did not fall into either of the two categories that Congress excepted in the FY23 NDAA from the application of the expanded direct appeal rights under Article 66, UCMJ; in this regard, as of the date of the FY23 NDAA, appellant had not submitted an Article 66, UCMJ, appeal to the CCA nor had he submitted his case for review by the Judge Advocate General pursuant to Article 69, UCMJ; however, appellant was still within the one-year period following completion of his Article 65, UCMJ, review in which to apply for review under Article 69, UCMJ; and the FY23 NDAA is clear and unambiguous in its application; to qualify for review under the new Article 66, UCMJ, there must be a court-martial conviction that has not already been appealed through Article 66 or 69, UCMJ, as of the effective date of the amendment; because appellant's case did not meet the disqualifying criteria, the CCA had jurisdiction over appellant's Article 66(b)(1)(A), UCMJ (Supp. IV 2019-2023), appeal
8. in this case, appellant's direct appellate appeal process did not become final when the Article 65, UCMJ, review was completed despite the fact that Article 57(c)(1)(A), UCMJ, provides that in those cases that are reviewed by a designated attorney pursuant to Article 65, UCMJ, appellate review is complete "under this section" when the Article 65, UCMJ, review is complete; the purpose of Article 57(c)(1)(A), UCMJ, is to define the term completion of appellate review "under this section;" that is, the definition specifically applies to how that term is used in Article 57(a)(5), UCMJ, to explain when the government may proceed with executing a punitive discharge or sentence of death; taken together, Article 57(a)(5) and (c)(1)(A), UCMJ, explain that the government may proceed with executing, for example, a bad-conduct or dishonorable discharge once Article 65, UCMJ, review is complete, when such review is necessitated after an appellant withdraws from automatic review by a CCA under Article 66, UCMJ; while the completion of Article 65(d), UCMJ, judge advocate review carries significance in some cases for implementing the sentence of a court-martial, the completion of such review does not make appellate review final
9. in this case, appellant's direct appellate appeal process did not become final when the Article 65, UCMJ, review was completed despite the fact that final judgment as to the legality of the proceedings for the purposes of Article 76, UCMJ, occurs after the Article 65(d), UCMJ, review is completed; after Article 65(d), UCMJ, review, further review by the Judge Advocate General under Article 69, UCMJ, is optional and the CCA has potential discretionary review over certain aspects of appellant's case under Article 69, UCMJ; this pathway for appellant to obtain additional review of his court-martial was expressly provided to him by Congress, and it had not expired at the time the FY23 NDAA went into effect; accordingly, the CCA still had potential jurisdiction over the case, and appellant's case was not final under Article 76, UCMJ

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the courts of criminal appeals are courts of limited jurisdiction, defined entirely by statute

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

1. the scope of an appellate court's authority, like other questions of jurisdiction, is a legal question reviewed de novo; the burden to establish jurisdiction rests with the party invoking the court's jurisdiction

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. when a statute has no specified effective date, absent clear direction by Congress to the contrary, it takes effect on the date of its enactment