United States v. Garner, No. 12-0282/AR, 71 M.J. 430, involves an unusual question about the procedure members use to determine a sentence in a court-martial. The Appellant was ultimately sentenced to confinement for life (with the possibility of parole), but only after the members first returned with a sentencing worksheet that included a term of years and language excluding parole. The judge called the sentence ambiguous and gave the members additional instructions, but did not instruct them on the procedures for reconsideration of a sentence, and CAAF granted review to determine if this resulted in instructional error. Writing for a majority of the court (with Senior Judge Effron and Judge Stucky concurring), Judge Erdmann tests for plain-error and finds that the military judge did err by failing to instruct the members on the procedures for reconsideration after they returned the final sentence of life, but also that the error was not plain and obvious and that it did not prejudice the Appellant.
At the outset, Judge Erdmann’s opinion provides an image of the actual worksheet language at issue, clarifying what the members did (previously described as “35 years no parole”):
Slip op. at 5. Judge Erdmann agrees with the Government “that the confinement portion of the sentence worksheet was clearly ambiguous.” Slip op. at 10. Accordingly,
“[t]he military judge did not err in returning the members to their deliberations to clarify the ambiguity. However, when the members returned from their deliberations with a revised sentence worksheet that did not merely clarify the ambiguity but rather reflected a “new” sentence that included confinement for life, it was obvious that the panel had “reconsidered” the initial sentence and had adopted a sentence that was not reflected on the initial sentence worksheet. Regardless of which of the two initial sentences the members intended, the second sentence either increased or decreased that sentence, and therefore reconsideration occurred.
At that point the military judge erred by not sua sponte providing the members with appropriately tailored instructions for reconsideration and returning them to deliberations to ensure compliance with R.C.M. 1009(e).
Slip op. at 10-11. Judge Erdmann then (somewhat charitably, in my opinion) finds that “considering the circumstances under which this
issue arose and the inconsistencies between this court’s precedent and R.C.M. 1009, we are not convinced that the error was plain or obvious.” Slip op. at 11. A footnote explains that CAAF’s caselaw, and the language of the Manual for Courts-Martial prior to the 1995 revision, blur the difference between “reconsideration” of a sentence (in order to increase or decrease the severity) and “clarification” of an unlawful or ambiguous sentence. Presumably, the court will be less generous in the future. Judge Erdmann also gently notes in a footnote that the Manual could benefit from further clarification: “[C]onfusion in the application of R.C.M. 1009 as evinced by the issue presented in this case and potentially in other similar circumstances, we consider this an area warranting clarification by the President in the MCM.” Slip. op at 9 n.5. With the court’s comment about additional transparency in the sentencing process in United States v. Altier, this is now two cases in a row where CAAF has called for Presidential attention to a procedural matter.
Judge Erdmann also discusses the lack of prejudice, noting that the mathematical realities of the sentencing rules (requiring a majority to reconsider, and three-fourths to return a sentence of life) make a vote for reconsideration before the vote for a sentence of life in this case a mere formality, and “under the unique circumstances of this case [the Appellant] was not prejudiced.”
In a separate concurring opinion, Judge Stucky explains that he would not find any error. Because the sentencing worksheet (pictured above) indicates that the members first returned a sentence of both “35 years” and “life without eligibility for parole,” Judge Stucky notes that any instructions on reconsideration would have to be tailored for reconsideration with an eye towards increasing the sentence (requiring a majority vote) or with an eye towards decreasing the sentence (requiring just more than one-fourth of the members, in this case). But a sentence of “life” is more than ”35 years” and less than “life without eligibility for parole,” so instructing on reconsideration “makes no sense.” Op. at 3.
Senior Judge Effron also writes separately, mainly adding that “In view of the lack of clarity in the current state of the law, I would not reach the issue of prejudice.”