On Monday CAAF specified review of the following issue in an Army case:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. 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 granted on the following specified issue:

WHETHER, AFTER SETTING ASIDE THE SENTENCE AND ORDERING A REMAND, A SERVICE COURT OF CRIMINAL APPEALS IS AUTHORIZED TO REASSESS THE SENTENCE AND LIMIT THE LAWFUL SENTENCE THE CONVENING AUTHORITY MAY APPROVE.

Briefs will be filed under C.A.A.F. R. 25.

The Army CCA’s opinion is available here.

Specialist Wall was convicted of the rape of one woman and the sexual assault of another (both fellow enlisted soldiers), by a general court-martial composed of a military judge alone, and sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. But during the trial the military judge allowed the prosecution to use the charged offenses for propensity purposes, a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). Considering that error on appeal, the CCA found that it was prejudicial for only the sexual assault conviction, and the court set aside that finding and the sentence, authorizing a rehearing. But the CCA also expressed, in a footnote, its

satisf[action] that the sentence adjudged, absent Specification 1 of The Charge, would have been at least a dishonorable discharge and confinement of ten years. See United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). The reassessment being both appropriate and purging the record as it stands of error does not otherwise limit the sentence that may be adjudged at a rehearing. See UCMJ, art. 63.

Slip op. at 8 n.4.

Under Article 66(c) (pre-2019) or Article 66(d)(1) (2019) a CCA “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as [it] finds correct in law and fact and determines, on the basis of the entire record, should be approved.” The provision has been the subject of deep analysis in recent cases like United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), and United States v. Nerad, 69 M.J. 138, 144-146 (C.A.A.F. 2010), with CAAF generally upholding its precedent that a CCA has both a duty and the power to conduct a plenary review of a court-martial and may “in the interest of justice, determine that a certain finding or sentence should not be approved.” United States v. Claxton, 32 M.J. 159, 162 (C.A.A.F. 1991). The power is not unlimited, however, and the CCAs sometimes press the limits. One recent example is found in the issue certified by the Judge Advocate General of the Air Force in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page):

Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.

A majority of CAAF did not address that issue when it decided Humphries (though two dissenting judges would have decided it against the CCA). But with the specified issue in Wall, CAAF has presented itself with substantially the same question.

4 Responses to “CAAF specifies an issue about the limits of a CCA’s power to reassess the sentence”

  1. Blutarsky says:

    The problem in Humphries was that the CCA was telling the CA to do something that it couldn’t do – suspend a BCD.  No such problem here.  And doesn’t the CAAF often do exactly what the CCA did here – limit the CA’s approval authority on remand?  See eg Moreno, 63 MJ 129 and Harvey, 64 MJ 13.  And because this case is not final and because the CA may never get to the CCA’s 3d option, isn’t this pretty much a grant that will result in an inappropriate advisory opinion? 

  2. RandomAttorney says:

    If anything, the Army CCA created an advisory opinion, or de facto sentence reassessment, by creating this 10 year limit.  How does the Army CCA review a sentence under Article 66(c) if they were the ones to “advise” it in the first place?
    I disagree that CAAF would generate an advisory opinion when the question is whether the CCA has the authority in the first place.

  3. John O'Connor says:

    To me, the biggest problem with what CCA did here (besides the lack of rule-based authority for limiting reassessment discretion on remand) is that it usurps the role of the CCA panel hearing the next appeal if the CA decides to dismiss Spec 1 and reassess the sentence.  Say the CA reassesses sentence and approves confinement for ten years.  When Wall appeals, the next CCA panel is left with a reassessed sentence that the CCA has already said is okay.  Could the new panel vacate the sentence on sentence appropriateness grounds?  I think it technically could, but the CA did exactly what the first panel said he or she could do.  The CCA should have remanded with instructions to (1) retry Spec 1, or (2) dismiss Spec 1 and order a new sentencing hearing, or (3) dismiss Spec 1 and reassess sentence.  Period.  It’s the next panel’s job to determine sentence appropriateness if the CA decides to dismiss and reassess sentence.

  4. Tami a/k/a Princess Leia says:

    I agree with Random Attorney, the ACCA created an advisory opinion.  If you set aside a specification and the sentence AND authorize a rehearing, then I don’t see how you can “reassess” the sentence.  Also, was this judge alone or panel?