6 November 2023, Journal entry.
No. 23-0163/AF. U.S. v. Matthew P. Leipart. CCA 39711. On consideration of a motion by Movant K.C. to compel all counsel of record to comply with C.A.A.F. R. 39 (2023) by serving her counsel with a copy of any pleading or other paper, it is noted: (1) C.A.A.F. R. 39(a) requires service of pleadings and other paper on "all counsel of record, including amicus curiae counsel"; (2) under C.A.A.F. R. 16(a), a counsel becomes a counsel of record by filing a notice of appearance or making another filing "in the representation of a party to an action before the Court"; (3) Movant is not a party to the action before the Court, as the term "party" is used in C.A.A.F. R. 8(b), because when this Court granted Appellant's petition for review under Article 67(a)(3), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(3) (2018), the Court recognized only two parties: Appellant (Technical Sergeant Matthew P. Leipart) and Appellee (the United States); (4) Movant's counsel therefore does not represent Movant as a party to an action before the Court and therefore cannot be a counsel of record; (5) Movant has not filed a brief as amicus curiae under C.A.A.F. R. 26(a), and therefore Movant's counsel is not amicus curiae counsel; and (6) Movant and her counsel are therefore not entitled to service under C.A.A.F. R. 39(a). Accordingly, it is ordered that said motion is denied. The Joint Service Committee on Military Justice (JSC) will have a remote attendance option for its public meeting about proposed changes to the Manual for Courts-Martial on Nov. 14, 2023.
Instructions for the remote option (via Zoom) are now posted on the JSC website. You must register to attend. A direct registration link is here. Written comments may be submitted per the instructions on the Federal Register. Thursday, November 2, 2023
Order Granting Petition for Review No. 23-0224/AF. U.S. v. Charles S. Nestor. CCA 40250. On consideration of the petition for grant of review of the decisions of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: WHETHER UNITED STATES v. PHILLIPS, 70 M.J. 161 (C.A.A.F. 2011) WAS WRONGLY DECIDED, AND UNDER A STARE DECISIS ANALYSIS, SHOULD BE OVERRULED. IF SO, SHOULD APPELLANT'S REMAINING CONVICTION BE SET ASIDE AND DISMISSED BECAUSE THE GOVERNMENT PROVIDED INSUFFICIENT EVIDENCE AS TO THE TERMINAL ELEMENT? In Griffin, the Appellant agreed to a GP and that a Dishonorable Discharge was required to be adjudged. He challenged that on appeal. This case was decided under the 2016 MCM. The court finds error in the required DD as part of the PTA under the old rules. However, the court finds there is no evidence of prejudice. Appellant and the convening authority reached a pretrial agreement, and the offer portion required the military judge to sentence appellant to a dishonorable discharge. The military judge discussed this provision in detail with appellant at the guilty plea inquiry, and he ultimately indicated it was his "expressed desire" to receive a dishonorable discharge. The military judge sentenced him to that punishment, and confinement. In Baylor, the court addressed post-trial delay and the failure of the MJ to make a "meaningful" inquiry into the PTA. Finding no harm, the court affirms the findings and sentence. As to the delay, the court set-aside the 307 days of confinement (already served by this time) and affirmed only the BCD. In Kibler, a GP case with Art. 128b allegations, there are complications. 1. A specification is set aside. Applied here, the military judge erred in failing to resolve the substantial conflict and inconsistencies between: (1) whether the Article 128b offense as amended in Specification 2 of Charge V alleged a violation of Article 128b(5) (suffocation) or Article 128b(1) (violent offense); (2) the fact that the amended allegation, asserting that appellant covered his wife's chest and neck with a pillow, failed to meet the legal definition of "suffocation" (which again requires a covering of the nose or mouth); and (3) the fact that the parties amended the specification to expressly delete any reference to the face, yet appellant contended that he suffocated his wife by placing the pillow over her face. Given these contradictions, appellant was not provident to Specification 2 of Charge V, and it must be set aside for legal insufficiency. See United States v. Kim, 83 M.J. 235, 238 (C.A.A.F. 2023) ("[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.") (citations omitted). 2. Now for something different. Paragraph 5(e) of the Plea Agreement provides that the Convening Authority may withdraw from the plea agreement "if findings are set aside because my plea of guilty pursuant to the agreement was held improvident on appellate review." |
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