When does one apple equal 30 oranges, 45 bananas, and 3 bunches of 1,500 grapes? When “the specific circumstances of this case” permit such a conclusion. So finds CAAF, in a per curiam opinion that affirms the NMCCA’s decision in United States v. Altier, No. 12-0496/NA, 71 M.J. 427 (C.A.A.F. Dec. 19, 2012) (CAAFlog case page) (link to slip op.).
The Appellant in Altier was convicted in 2010, by a special court-martial composed of members with enlisted representation, of one specification of fraternization and one specification of sexual harassment, both in violation of Article 92. He was sentenced to just a bad-conduct discharge. However, the NMCCA set-aside the sentence and authorized a sentencing rehearing because of improper sentencing instructions. That rehearing occurred in July, 2011, before a military judge alone, and the Appellant was sentenced to confinement for 30 days, reduction to pay grade E-5, restriction to base limits with hard-labor for 45 days, and forfeiture of $1,500.00 pay per month for three months. But no punitive discharge.
The Appellant promptly sought appellate relief to avoid execution of the confinement, and was granted a writ of prohibition by the NMCCA staying execution of the new sentence in order to allow the court to first determine if the new sentence was “in excess of or more severe than” the original sentence. Article 63, UCMJ, states that “upon a rehearing … no sentence in excess of or more severe than the original sentence may be approved…,” and the Appellant argued that the confinement, restriction, hard-labor, and forfeitures in the second sentence were in excess of or more severe than the punitive discharge (with automatic reduction under Article 58a) but no confinement, no restriction, no hard-labor, and no forfeitures in the first sentence.
Crazy talk, right? And a three-judge panel of the NMCCA denied relief (in a 2-1 split), finding that “[u]nder the circumstances of this case” the second sentence was not in excess of or more severe than the first sentence. CAAF granted review, and on December 19, 2012, in a per curiam opinion, it agreed with the NMCCA, and the court lifted the stay of execution of the sentence.
CAAF’s discussion is both short and unenlightening, but there are two lessons that can be drawn from the opinion. The first is that none of the judges at CAAF have any significant interest in establishing a formula for calculating equivalent sentences for rehearings:
Our cases regarding Article 63 reflect both the obligation to give meaning and effect to the statutory limitation against a sentence that is “in excess of or more severe” than the original sentence, and an understanding that the application of the Article 63 limitation in any case cannot be reduced to a specific formula.
Slip op. at 4. Nevermind that the Manual for Courts-Martial used to include a Table of Equivalent Punishments (though it didn’t establish any equivalent for a discharge) and that the NMCCA and CAAF have both used this table in the past (see United States v. Edwards, 54 M.J. 761, 763 (N-M.Ct.Crim.App. 2000) (citing United States v. Gammons, 51 M.J. 169, 183-184 (C.A.A.F. 1999)). When it comes to Article 63, equivalents are out.
The second lesson requires reading between the sparse lines of the court’s opinion:
…Appellant received a sentence containing terms similar in effect, although not identical to, the types of punishment that could be imposed in a non-judicial setting under Article 15, UCMJ. Under the specific circumstances of this case, we conclude that the Court of Criminal Appeals did not err under Article 63 in affirming a sentence adjudged by the court-martial and approved by the convening authority.
Slip op. at 5. Those “specific circumstances” include the fact that during the sentencing rehearing the Appellant’s counsel first asked for a sentence of “no further punishment,” but then argued that if “a ‘message’ was necessary, then [the judge] should impose a sentence no greater than the punishment ‘that could be imposed at NJP.'” Slip op. at 2. CAAF doesn’t explicitly state that this Appellant got what he asked for, but that familiar message is clear. See United States v. Carter, 45 M.J. 168 (C.A.A.F. 1996) (“This case and its outcome can be summarized by the old adage, ‘Watch what you ask for, you may get it.'”)).
The court also dedicates a long footnote to the procedure applicable to sentencing rehearings.
The present case highlights the somewhat unusual situation under current court-martial practice in which the court-martial has the responsibility of adjudicating a sentence upon rehearing, but must do so without transparent knowledge of the lawful maximum punishment. The Discussion accompanying R.C.M. 810(d) states that the members “should not be advised of the sentence limitation under this rule.” The Analysis accompanying the Discussion emphasizes that the suggested restriction on advising the members of the sentence limitation was placed in the non-binding Discussion, and is not phrased in mandatory terms, in order to leave the matter open for further development. Manual for Courts-Martial, United States, Analysis of the Rules for Courts-Martial app. 21 at A21-51 (2012 ed.). Under current procedures, courts-martial are placed in the position of adjudicating sentences without knowledge of the lawful maximum punishments with regard to cases subject to the limitations in Article 63. The President, acting under the rulemaking authority of Article 36, UCMJ, 10 U.S.C. § 836 (2006), may wish to consider whether transparency in the sentencing process could be improved by providing a process in the Rules for the military judge to determine the maximum permissible punishment in light of Article 63 after receiving input from the parties.
Slip op. at 5-6 n.4 (emphasis added). “Transparent knowledge.” Good joke. The military judge at this rehearing undoubtedly had a pretty solid grasp of the original sentence, considering the CCA was involved (necessitating either an approved punitive discharge or the special court-martial maximum of a year of confinement). Also, one specification each of fraternization and sexual harassment are unlikely to result in much of a sentence to begin with, and there was no discussion of credit for time served (there having been none).
Practically speaking, there’s a message from the trial judge in his shotgun-approach to sentencing; adjudging a sentence at the rehearing that included some of every possible alternative to a discharge gives the convening authority maximum possible flexibility (except there was no reprimand; are others familiar with a reprimand being a signal to the SJA that the case was a waste of time?). What isn’t clear is whether the trial judge also realized that the CCA kept jurisdiction based on the original sentence, regardless of the sentence he adjudged at the rehearing, and that by not adjudging a punitive discharge he just made the legal posture of this case more complicated. See Boudreaux v. U.S. Navy-Marine Corps Court of Military Review, 28 M.J. 181 (C.M.A. 1989) (Article 66 review is based on the original sentence).
That said, informing the sentencing authority at a rehearing of the sentence adjudged at the original hearing would only encourage the type of gamesmanship that Article 63 and R.C.M. 810 prohibit (and CAAF should vigorously prevent), and asking “the military judge to determine the maximum permissible punishment in light of Article 63 after receiving input from the parties” does absolutely no good when there is no guidance for how to compare dissimilar sentences (like in this case). The goal of the rehearing is for the sentencing authority to determine an appropriate sentence for the conviction, while the convening authority ensures that “the accused can never be the subject of final action which is more to his detriment than the original action of the court-martial which heard his case.” United States v. Zimmerman, 6 C.M.R. 12, 20 (C.M.A., 1952). That process is tricky enough without resorting to case-by-case comparisons of apples to oranges (or bananas, or grapes).
Rehearings are rare, and opportunities for our appellate courts to establish clear, straightforward, military-proof principles to guide the proceedings are rarer still, making CAAF’s opinion in Altier more of a missed opportunity than anything else.
• NMCCA opinion (Altier I)
• Blog post: NMCCA sets-aside otherwise-lawful sentence…
• NMCCA opinion (Altier II)
• Blog post: Enforcing (or not) the sentence limitation provisions of Article 63
• Appellant’s Brief
• Appellee’s (Government) Brief
• Appellant’s Reply Brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: CAAF affirms in Altier
• Blog post: Opinion analysis