NMCCA’s opinion Miller should be read first. Because the NTJAG certified the case to CAAF which decided in favor of the government on April 4, 2022. Judge Sparks writes for a unanimous court addressing three issues—related to post-trial issues, post-trial motions, and record completeness.
I. Did the lower court err in finding the convening authority abused his discretion under R.C.M. 1109 by acting after Appellee submitted R.C.M. 1106 clemency matters but before the military judge issued his written post-trial ruling?
At trial, the Appellant was awarded a total of 239 sentence credit against the 12 months adjudged. The appellant was apparently placed in post-trial “protective custody. When the defense learned of this they asked for a post-trial hearing and moved for an additional 33 days confinement credit based on “illegal post-trial” confinement. The military judge’s ruling did not make it into the record before the CA action.
So, NMCCA set aside the CA action because it was “premature.” They held omission of the military judge’s ruling was “substantial” because the CA could not have fully reviewed the record when deciding on clemency. They also decided that if the MJ ruling was not available the SJA could not have properly reviewed the record and given proper advice.
The CAAF reviews the new post-trial rules.
Given the significant changes in the post-trial processing system that applied to Appellee’s case, we conclude that the convening authority’s action was not premature nor was the staff judge advocate’s recommendation uninformed. The record of trial is not required to be complete at this stage of post-trial processing. Appellee had the right to submit clemency matters, and the convening authority must, and did, consider the clemency matters. If Appellee wanted to ensure that the convening authority considered his post-trial confinement conditions, the appropriate place was to include it in his clemency request or to have filed a post-trial motion within five days of receiving the convening authority’s action. He did not do so. Therefore, there is no error for us to correct.
Reading the NMCCA decision we find this chronology,
8 May 2019 Appellant sentenced.
From this chronology, we can read that the defense was on notice of the potential error regarding post-trial confinement and why the CAAF reached its ultimate conclusion.
Cheers, Phil Cave
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