CAAF has only been holding oral arguments this term for a month and already it has decided two of the argued cases. The first was a summary disposition; today CAAF announced the term’s first opinion of the court, reversing NMCCA in a unanimous opinion written by Judge Ryan. United States v. Burch, __ M.J. ___, No. 08-0092/MC (C.A.A.F. Oct. 16, 2008).
NMCCA’s decision in Burch seemed like an opinion in search of a smack-down. NMCCA held that even though the accused was actually confined for seven months beyond what the plain language of the convening authority’s action allowed, the error was harmless because we all know that the CA meant to order that extra seven months executed. United States v. Burch, No. NMCCA 200700047, 2007 CCA LEXIS 351, 2007 WL 2745706 (N-M. Ct. Crim. App. Sept. 13, 2007). NMCCA’s opinion contained the classic line, “At first blush, our two-part analysis may appear internally inconsistent.” Id., slip op. at 8. But no, argued NMCCA, it isn’t. Yes, held CAAF, it is.
CAAF held: “[W]here a clear and unambiguous action is the convening authority’s last action delimiting the period of confinement to be served, an accused is prejudiced by being confined for a period in excess of the authorized sentence. The United States Navy-Marine Corps Court of Criminal Appeals (CCA) erred in relying on facts and circumstances predating the convening authority’s unambiguous action to find that Appellant was not prejudiced.” Burch, No. 08-0092/MC, slip op. at 2.
CAAF reasoned: “The CCA’s conclusion that Appellant was not prejudiced explicitly rests on facts extrinsic to and predating the convening authority’s action, ignoring the significance and timing of the action itself and our holding in” United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007). Id., slip op. at 4.
CAAF also delivered this rebuke: “The CCA cited no legal authority for the novel precept that confinement not authorized by a convening authority’s action does not prejudice an accused because events preceding the action suggest that at one time the convening authority ‘did not intend to release Appellant from confinement prior to completion of his adjudged sentence.'” Id., slip op. at 5. Contrary to NMCCA’s view, CAAF concluded that “the prejudice in this case is both obvious and apparent and may not be attenuated by facts predating the final action of the convening authority.” Id., slip op. at 6.
As a remedy, CAAF ordered the record returned to NMCCA “to determine and award meaningful sentence relief to Appellant.” Id., slip op. at 7.