CAAFlog
  • Home
  • About
    • CAAFlog 2.0
  • Masthead
  • Contact / Submit Guest Post
  • NIMJ.org

CAAFlog

Post-trial processing

2/28/2021

1 Comment

 
We all are reading  numerous opinions addressing post-trial issues primarily related to the CA action. United States v. Motus presents the issue differently and raises a note of caution for trial defense counsel and inferentially a call for action on their part.

After a contested MJA trial for various sexual offenses the military judge entered mixed findings and imposed a DD and two. On appeal, one AOE asked the court to set-aside the sentence because,
​Appellant asserts his trial defense counsel were ineffective in, inter alia, failing to file a post-trial motion regarding the convening authority not taking action on Appellant’s sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Article 60, UCMJ, 10 U.S.C. § 860.
The government claimed the law was so "unsettled at the time" that there was no IAC, the proper remedy was to remand for corrective action; and based on the offenses and sentence 'so what (no prejudice)?'

The court agreed the CA erred and remanded the case to the CJAFTJ for further action. The court deferred ruling on the IAC claim until Motus makes his return appearance before the court.  In discussing the applicable law the court observed,
The version of Article 60, UCMJ, in effect in 2018—the year in which Appellant’s offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860(c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”). Article 60(c)(2)(B), UCMJ, further stated: “Except as [otherwise] provided . . . the convening authority . . . may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.” 10 U.S.C. § 860(c)(2)(B). The convening authority’s action is required to be “clear and unambiguous.” United States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (citation omitted).
The court does address the various statutory changes and  the recent appellate decisions on what to do with post-trial error cases. I think in doing so the court effectively concedes some confusion in the field and among the appellate courts.

There is a dissent finding no error.
1 Comment
Eyes of Texas
2/28/2021 02:45:32 pm

Some years ago there were so many post-trial issues that the CAAF made a prospective determination that issues had to meet some hurdle before consideration. Early 2000's and I can't remember the case.
There was a dissent, Effron or Sullivan I think. It looked like it was going to turn into one of those Crawford railroads. Then it just kind of faded away.
Here we are, probably close to two decades later. A new group of judges, and the same problem. Now, the CAAF just ducks because of pleadings.
A government operation if there ever was one.

Reply

Your comment will be posted after it is approved.


Leave a Reply.

    RSS Feed

    Subscribe
    Picture
    Home
    About
    Masthead
    Contact/Submit Post
    CAAFlog 1.0 Archive 


    ​Links

    CAAF
    -Daily Journal
    -Current Term Opinions
    ACCA
    AFCCA
    CGCCA
    NMCCA
    Joint R. App. Pro.
    Global MJ Reform
    LOC Mil. Law Resources

    Archives

    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020

The views expressed on this website are expressed in the authors' personal capacities.
Proudly powered by Weebly
  • Home
  • About
    • CAAFlog 2.0
  • Masthead
  • Contact / Submit Guest Post
  • NIMJ.org