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.
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