United States v. Willman

In Willman, CAAF holds that a CCA does not "have authority to consider outside-the-record evidence submitted in support of an appellant’s Eighth Amendment or Article 55, UCMJ, claims when performing sentence appropriateness review under Article 66(c), UCMJ." The court concludes that the plain language of Article 66, UCMJ, and the decision in United States v. Jessie, 79 M.J. 437 (C.A.A.F. 2020) require this conclusion. AFCCA's Willman decision is affirmed. (Judges Sparks and Ohlson dissented.) At AFCCA, Willman complained that he,

suffered cruel and unusual punishment in violation of the Eighth Amendment and Article 55, UCMJ, 10 U.S.C. § 855, when he was not given proper medical treatment while in confinement. Alternatively, Appellant contends that the conditions of his post-trial confinement render his sentence inappropriately severe, warranting relief under Article 66(c), UCMJ, 10 U.S.C. § 866(c).

In Jessie, the ACCA, sitting en banc, concluded they had no authority to consider the appellant's First, Fifth, Eighth Amendment claims about conditions of post-trial confinement, and that to do so would be "inappropriate." (Four of ten judges dissented.) Jessie was one of the cases complaining about being deprived of contact with his minor children while confined at the USDB. CAAF affirmed the ACCA. In Jessie, CAAF made several points about a CCA's "broad discretionary power" of review as to sentence.

• The CCA may not approve a sentence that is unlawful, e.g., violates the Eighth.
• The CCA may not approve a sentence that is "excessive."
• The CCA is limited to considering only the "entire" record. The entire record,

[I]nclude[s] the "record of trial" and "allied papers." Under the Rules for Courts-Martial (R.C.M.) applicable to this case, the "record of trial" contains all of the items listed in R.C.M. 1103(b)(2), and the "allied papers" are items now identified as "matters attached to the record" in accordance with R.C.M. 1103(b)(3). In addition, the "entire record" also includes briefs and arguments that government and defense counsel (and the appellant personally) might present regarding matters in the record of trial and "allied papers."

79 M.J. at 440-41 (emphasis added).

We can, again, glean several points from Willman, Jessie, United States v. Healy, 26 M.J. 394 (C.M.A. 1988), and United States v. Fagnan, 12 C.M.A. 192, 30 C.M.R. 192 (1961).

• A CCA does not give clemency, partly because they are not "probation and parole boards."  Fagnan, 12 C.M.A. at 195.
• A CCA does not give sentence appropriateness relief for confinement facility rules and regulations affecting the usual conditions and management of the facility or prisoners.
• Fagnan "established a clear rule that the CCAs may not consider anything outside the "entire record" when reviewing a sentence." Jessie, 79 M.J. at 441, citing Edward S. Adamkewicz Jr., Appellate Consideration of Matters Outside the Record of Trial, 32 Mil. L. Rev. 1, 16 (1966).

The dissent of course recognizes that when an Appellant attaches documents or declarations to the record--through Grostefon perhaps, do they not become part of the entire record?

Cheers, Phil Cave.