NMCCA--United States v. Fisk

Fisk pled (sic, and Garner disagrees on the spelling) guilty at a general court-martial to an unauthorized absence (UA) (Article 86) and two specifications of possessing child pornography (Article 134). The misconduct dated to early 2014: he possessed the images in February 2014, learned he was under investigation, and went on the run for a full decade until Washington state police apprehended him in April 2024. He was sentenced to reduction to E-1, seven years' confinement, total forfeitures, and a dishonorable discharge. Under the pretrial agreement, the convening authority suspended confinement above 42 months. Fisk raised three assignments of error, the second relating to clemency. The court rejected the first two on the merits and declined to reach the third as unripe, affirming the findings and sentence. The third issue is of interest and may encourage a CAAF grant, or they may wait until the issue is ripe. If they do decide to wait, then Sailors and Marines will be treated differently on appeal.

Not Ripe Yet: NMCCA Lets the "Findings and Sentence" Plea Term Hang on the Vine.

When a question keeps coming back, you can either pick it or wait for it to fall. The Navy-Marine Corps court has now chosen, again, to wait. In Fisk, the court declined to decide whether a plea-agreement term that conditions dismissal with prejudice on the findings and sentence surviving appeal is contrary to law. The issue, the court held, is not ripe. And so it stays alongside Amos —while the Army court has already picked its answer. The punt is defensible. Courts decide concrete disputes, avoid advisory opinions on contingent future events—tracking the Supreme Court's framework in Texas v. United States, 523 U.S. 296, 300 (1998) (a claim is unfit for review if it "rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all").

The term

The challenged language is now near-boilerplate. A charge gets dismissed at sentencing "without prejudice, to ripen into prejudice upon completion of appellate review in which the findings and sentence have been upheld." The two words doing the damage are "and sentence." Strip them out and the provision is unremarkable: the charge dies for good once the conviction is affirmed. Leave them in, and the dismissed charge can spring back to life if the appellate court grants any sentence relief—which is to say, the accused arguably forfeits the benefit of his bargain precisely by persuading the court that his sentence was too severe.

Fisk: another punt

Having affirmed both findings and sentence, the panel found the triggering condition had not occurred and the issue was not ripe, citing its own decisions in Amos and Rogers and noting the Army court's published contrary view in United States v. Hunter, 84 M.J. 715 (A. Ct. Crim. App. 2024). That is a clean and defensible holding. Why opine on a contingency that has not arrived? If you affirm the sentence, the term never bites, and the accused walks out exactly where the agreement promised he would. Who can quarrel with the result?

Amos: the punt with a sting in the tail

The reason Fisk matters less than it looks is that Amos—an unpublished decision eleven months earlier (cited in Fisk for the ripeness point) did the real work. Amos's charges were more serious (sexual assault and a bludgeoning of a second Sailor) dismissed under the same paragraph. The court gave three reasons to deny relief, and only the first was ripeness.

The second is the stinger. The court reasoned that if the term really offends public policy, then there was no meeting of the minds on a negotiated provision—so the proper remedy would be to set aside the plea and sentence entirely, returning the parties to the status quo ante. Which is the very thing the appellant was trying to avoid. Win the argument, lose the deal. The court's third point was that Amos showed no actual chilling of his appellate rights, an effect "refuted by the very existence of his appeal."

So when Fisk cites Amos for ripeness, it is invoking the narrowest ground of a decision that went further and signaled real hostility to the merits position the Army court had embraced.

Hunter: The Army picks the fruit.

The Army court, on materially identical language in an involuntary-manslaughter case, declined to wait. Reviewing de novo whether a term violates the Rules for Courts-Martial, Hunter held the "and sentence" language unenforceable as contrary to R.C.M. 705(e)(4)(B), reasoning that conditioning the government's performance on the sentence being upheld is an improper extension of the convening authority's reach into the appellate court's domain. ACCA severed the two words and left the rest of the agreement standing. The accused kept his deal and shed the offending term. A defensible result, which may alter the Army's standard PTA language--less appellate work.

The split to watch.

Frame this as a tidy CCA split on the merits and you will get caught. NMCCA has never held the term valid. It has punted repeatedly on ripeness. The honest description is a two-layered disagreement: the courts diverge on whether the question is even justiciable before the condition is triggered, and, in the alternative, on the merits, with the Air Force court (per Rogers) seeing no obvious problem at all.

But perhaps the sharper divide is about the remedy. Hunter severs: keep the bargain, strike the words, and the accused is better off. Amos frames the only available relief as rescission: void the term, and you void the meeting of the minds, unwinding the entire agreement and reopening the dismissed charges. Those are not two roads to the same place. They are opposite incentives. Under Hunter, a represented appellant has every reason to raise the issue. Under Amos, an appellant who struck a good deal has every reason to leave it well alone. That practical split—severance versus rescission—does more to shape the defense bar's behavior than the ripeness question ever will.

Why CAAF should take up the issue.

Thinking forward, it seems better from a judicial efficiency standpoint, as much as deciding whether the clause has a chilling effect on a Navy, Marine, Air Force appellant's decision to litigate sentence issues. Do Navy/Marine/Air Force/Coast Guard appellate defense counsel now have to specifically inform an appellant about the effect of arguing--and succeeding on a factual sufficiency issue--ala Miller and Denedo?

Let's assume an appellant gets sentence relief, the GCMCA or OSTC is unhappy with that and proceeds to go to a "rehearing" because the accused violated the terms of the agreement, and the appellant is convicted and sentenced to more than the original PTA, and the months pass while the appellate process works. . . . . (assuming no intervening writ of habeas or prohibition).
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