After CAAF hears oral argument in United States v. Tearman, No. 12-0313/MC, on Tuesday, October 23, 2012, it will hear oral argument in United States v. Garner, No. 12-0282/AR. The Appellant was convicted in 2008 by a general court-martial composed of officer and enlisted members, contrary to his pleas, of desertion, disobeying a lawful order, rape, sodomy, possession of child pornography, and indecent assault in violation of Articles 85, 90, 120, 125, and 134. He was sentenced to confinement for life (with the possibility of parole), total forfeitures, reduction to E-1, and a dishonorable discharge. However, during the sentencing phase of the court-martial the members returned a sentencing worksheet on which they had written: “35 years no parole.” The panel was given additional instruction by the military judge, and returned with the sentence of life. The Appellant claims that the instructions were erroneous, and that the procedures for reconsideration of a sentence set forth in Rule for Courts-Martial 1109 were improperly disregarded.
The Army CCA affirmed the findings (limiting the child pornography finding to images of a single child: the Appellant’s daughter), and affirmed the sentence, in late-2011. CAAF subsequently granted review of two issues:
I. Whether the military judge erred when she failed to give the necessary instructions on sentence reconsideration.
II. Whether the Army Court of Criminal Appeals erred when it held that Specification 1 of Charge II states an offense even though the Government did not allege the terminal element, either expressly or by necessary implication, as required by United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).
R.C.M. 1109 provides procedures for reconsideration of a sentence, with a view to increasing or decreasing the severity. However, the Rule also contemplates the possibility of “clarification” of an “ambiguous” sentence adjudged by members without following the procedural requirements for full “reconsideration.” At trial, after the members returned the sentence of “35 years no parole,” the Defense argued that panel had already returned a sentence that included a term of years, making it a valid sentence, but the Judge disagreed. She stated: “I believe it’s completely ambiguous as to what the panel members meant, and it is up to them to clarify for the Court what it is that they meant, and I will be returning them back to their deliberations with a clean sentencing worksheet in order to clarify in proper form what their sentence is.” Appellant’s Br. at 6. She then told the members that the sentencing worksheet was “ambiguous,” and told them that they could not “do both a quantified term of years and a life without eligibility for parole. You cannot have those two sentences coexist.” Appellant’s Br. at 7. The members returned to the deliberation room for about an hour, after which they announced the sentence of life.
The Appellant’s brief ultimately sets out the argument that the panel’s original sentence as contained on the worksheet was illegal, “because it contained an unauthorized punishment,” but that it was not ambiguous, because “the panel intended the Appellant to serve a full thirty-five year sentence to confinement.” Appellant’s Br. at 15. Because the original sentence “contained an illegal element . . . reconsideration was the only correct procedure.” Id. However, because the Judge did not instruct the members on the procedures for reconsideration, “it is unknown whether a required majority of the panel voted to increase the sentence to confinement.” Appellant’s Br. at 18. Accordingly, the Appellant requests a rehearing on sentence.
Predictably, the Government’s response argues the opposite: That “the initial sentencing worksheet returned by the panel in this case was ambiguous as to the sentence to confinement,” creating an issue of clarification, not reconsideration. Gov’t Br. at 8. The Government predicates its argument on the view that “there is a difference between ‘reconsideration’ of an ambiguous sentence that is a legal nullity, and reconsideration with a view towards either increasing or decreasing an otherwise lawfully adjudged sentence.” Gov’t Br. at 13. But the Government’s brief also outlines two incredibly-sensible arguments. First:
It is illogical to require that the procedures of R.C.M. 1009(e) be utilized when the military judge orders clarification of an illegal sentence because those procedures could lead to absurd results. For example, if a panel returns an illegal sentence, and the military judge was required to instruct regarding the procedures of R.C.M. 1009(e), the panel, in following those procedures, could potentially vote to choose not to modify their illegal sentence. The court would then be left with the unique circumstance of a partially ambiguous and illegal sentence. The purpose of R.C.M. 1009(e) cannot be such that it allows a panel the discretion to choose not to correct an illegal sentence before announcement.
Government Br. at 14 (parenthetical omitted). And second:
. . . any error in appellant’s case for failing to follow those procedures would be harmless. Because the threshold for reconsideration requires at most only the concurrence of a simple majority of the panel members, and a sentence to confinement for life with the possibility of parole (as was adjudged in appellant’s case) requires the concurrence of at least three-fourths of the panel, this Court can be satisfied that had the panel here been first required to vote whether to reconsider appellant’s illegal sentence, they would have voted to do so.
Gov’t Br. at 16-17. Indeed, it’s hard to imagine that CAAF will order a rehearing on sentence on the basis that “it is unknown whether a required majority of the panel voted to increase the sentence to confinement” of “35 years no parole,” when it is known that at least three-fourths of the members ultimately voted for a sentence of confinement for life. Of course, this assumes that the members followed the procedures for determining a sentence in the first place, but it is well-settled (as a matter of law, but not necessarily as a matter of common sense) that the members are presumed to follow the military judge’s instructions.
However, the Court would have known about this mathematical reality before it granted review, meaning that there might be a broader question on the Court’s mind. The procedures for members’ determination of sentence are fairly complex, and the unique circumstances of this case provide an opportunity for the Court to address any gripes. Accordingly, I suspect that the oral argument will inspire at least one research project for The Joint Service Committee and the drafters of the Military Judges’ Benchbook.