Last week, on November 20, CAAF granted review in another trailer to Phillips:
No. 15-0048/AR. U.S. v. Joshua R. Baker. CCA 20120839. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSE AT ISSUE WAS THE MINOR OFFENSE OF RESTRICTION BREAKING DESCRIBED UNDER ARTICLE 134, UCMJ, AND THE RECORD DOES NOT REFLECT APPELLANT’S UNDERSTANDING THAT THE ORDER IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER’S OFFICE TO LIFT THE DUTY “ABOVE THE COMMON RUCK.”
No briefs will be filed under Rule 25.
In the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page), CAAF is considering the ultimate offense doctrine for the first time in almost 20 years, with the following granted issue:
Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”
CAAF heard oral argument in Phillips on October 20, so I don’t expect a decision until next year. Prior to hearing oral argument, the court granted review in three trailer cases: United States v. Nemeth, No. 14-0491/AR, (grant discussed here), United States v. Amaya, No. 14-0558/AR (grant discussed here), and United States v. Twinam, No. 14-0619/AR (grant discussed here). Since hearing oral argument, CAAF has granted review in two additional trailer cases: United States v. Hagstrom, No. 14-0650/AR (grant discussed here), and last week’s grant in Baker.
Whether the court’s continuing grants of trailer cases predicts a major decision in Phillips remains to be seen.