CAAF’s case law establishes that a waiver of appellate counsel isn’t effective unless it’s filed after the CA acts. United States v. Smith, 34 M.J. 247, 249 (C.M.A.1992). In United States v. Xu (pronounced “Shoe”), a waiver of appellate counsel, but not appellate review, was filed long before the CA acted. The Air Force Court nevertheless gave it legal effect and proceeded to affirm the findings and sentence in the absence of any legal representation for Xu. United States v. Xu, No. ACM 37722 (A.F. Ct. Crim. App. Dec. 7, 2010) (per curiam).
After AFCCA affirmed his conviction and sentence, Xu obtained an appellate defense counsel, who filed a CAAF petition and supplement on his behalf. CAAF granted Xu’s petition today and summarily reversed. United States v. Xu, __ M.J. __, No. 11-0320/AF (C.A.A.F. May 25, 2011). CAAF held that “Appellant’s waiver of appellate counsel prior to the convening authority’s action was premature.”
Demonstrating the value of having counsel, CAAF also agreed with Xu’s counsel that “the convening authority failed to appropriately credit Appellant for prior punishment under Article 15, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 815 (2006), for an offense also charged as part of Additional Charge II.” AFCCA didn’t notice that error when it reviewed the case without the benefit of counsel. CAAF set aside the CA’s action and remanded the case for a new post-trial review and action, followed by a new Article 66 appeal to AFCCA.
This outcome confirms CAAF’s wisdom in holding that Article 66 review is no substitute for repreentation by an appellate defense counsel. As CAAF observed in United States v. May:
Although Courts of Criminal Appeals have a broad mandate to review the record unconstrained by an appellant’s assignments of error, that broad mandate does not reduce the importance of adequate representation. As we said in United States v. Ortiz, 24 MJ 323, 325 (CMA 1987), independent review is not the same as competent appellate representation. An appellant who is denied counsel is forced to proceed “without a champion on appeal.” Douglas v. California, 372 U.S. 353, 356 (1963). Denial of appellate counsel is presumptively prejudicial. Penson v. Ohio, 488 U.S. 75, 88 (1988).
47 M.J. 478, 481 (C.A.A.F. 1998).