Opinion Analysis: CAAF remands for further consideration of the appellant’s competency to participate in the appellate process, in United States v. Navarette
CAAF decided the Army case of United States v. Navarette, 79 M.J. 123, No. 19-0066/AR (CAAFlog case page) (link to slip op.), on August 1, 2019. Without explicitly holding that the Army CCA was wrong to deny the appellant’s request for an examination to determine his mental capacity to participate in the appellate process, a majority of CAAF remands the case to the Army court for further review of the request.
Judge Sparks writes for the court, joined by all but Chief Judge Stucky, who dissents.
Specialist (E-4) Navarette was convicted of a single specification of wrongful distribution of cocaine and sentenced to confinement for 90 days, reduction to E-1, total forfeitures, and a bad-conduct discharge. His defense at trial was that he was entrapped into selling the drugs to impress a pretty girl, and his mental health played a role in the defense (though he did not claim lack of mental responsibility). On appeal, Navarette’s military appellate defense counsel questioned Navarette’s mental capacity to participate in the appellate process and asked for an inquiry into Navarette’s mental health.
A three-judge panel of the Army CCA denied the request for three reasons: first, documents showed that the appellant responded well to mental health treatment; second, Navarette’s counsel had not actually asserted that he is unable to participate in the appeal; and third, Navarette had personally submitted matters to the CCA pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (holding that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous). CAAF then granted review of two issues:
I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).
II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.
Judge Sparks and the majority, however, “opt not to directly answer the granted issues,” slip op. at 2, because of “two concerns surrounding Appellant’s medical condition that we feel should be more thoroughly addressed to ensure a proper Article 66, UCMJ, review,” slip op. at 6. Chief Judge Stucky dissents, observing that:
the majority instead remands to the lower court without deciding that it abused its discretion and without telling it what standard it should apply. As the issue was granted, briefed, and argued, I see no reason not to provide that guidance, lest we need to return to this issue in this case again, further elongating these proceedings.
Diss. op. at 7.