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Sentence Reassessment on Appeal

Military defense counsel who do appellate work are often asked to help get a sentence reduced. What follows applies equally to the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals.

This article showed that the vast majority of court-martial sentences are affirmed by AFCCA. On the rare occasion when sentence relief was granted, it was usually not based on factual sufficiency or sentence appropriateness. While there has been some fluctuation in how often AFCCA grants sentence relief, it is minimal and to some extent explained by the influence CAAF has on it.

So concludes Maj. Kevin Gotfredson and Capt. Micah Smith,Sentence Relief: At the Air Force Court of Criminal Appeals During the Last 10 Years. 43(3) THE REPORTER 21 (2016). Their research was motivated by public discussion of an "epidemic" number of valid convictions being reversed because of "factual sufficiency." The authors:

  • Discuss the scope of authority granted to the military courts of criminal appeals, specifically AFCCA.
  • Give a framework to analyze the frequency where AFCCA granted some sentence relief.
  • Looked at what influence, if any, the Court of Appeals for the Armed Forces (CAAF) may have had on the sentence review by AFCCA.
  • Looked at the confinement relief granted by AFCCA as a quantifiable measure of sentence relief.
  • Analyzed cases where sentence relief was granted on the basis of factual sufficiency of the evidence or the appropriateness of the sentence.
  • Looked at whether sentence relief shares any connection to the rank of the appellant.

My conclusion based on their review (as a military appellate lawyer)--the sky is not falling, and it continues to be difficult to get any relief, let alone sentence relief on appeal--you must "win" at trial. There are any number of cases where one of several convictions is set-aside for factual sufficiency. However, the court then does a sentence reassessment review. In doing so, the court follows the direction from two significant military cases: United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Winckelmann. Essentially, the court looks at:

  1. Dramatic changes in the penalty landscape and exposure.
  2. Whether an appellant chose sentencing by members or a military judge alone. Appellate judges are more likely to be certain of what a military judge would have done as opposed to members.
  3. Whether the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses.
  4. Whether the remaining offenses are of the type that judges of the courts of criminal appeals should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial.

United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013).

In the rare case there will be a remand for a re-sentencing hearing.

In most cases, the appellate panel makes their own reassessment. When this happens, most frequently the panel finds the same sentence to be appropriate and affirms it. Here are several examples of from opinions.

The normal decision says:

"Upon such review, the findings and sentence are determined to be correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as approved below, are affirmed." United States v. Collon, Coast Guard.

The occasional decision says:

"Specification 4 of Charge VII is set aside and DISMISSED. The remaining findings of guilty are AFFIRMED. We are able to reassess the sentence on the basis of the error noted and do so after conducting a thorough analysis of the totality of circumstances presented by appellant’s case and in accordance with the principles articulated by our superior court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on the entire record and appellant’s course of conduct, the military judge would have imposed a sentence of at least that which was adjudged, and accordingly we AFFIRM the sentence. We find this reassessed sentence is not only purged of any error but is also appropriate. United States v. Narewski, Army.

Many times when the appellant gets relief it is what we call Pyrrhic relief. For example, some months cut from the confinement sentence, but the appellant has already served to their MRD and has been released from confinement. Your military defense counsel should advise of these actions and opportunities at the time of your trial.

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