Judge Stucky objects to two parts of the majority opinion: (1) the assertion that the accused did not know the judge was going to consider matters in the stipulation in determining if the accused was guilty of the greater offense of desertion; and (2) the military judge improperly considered the accused's statements during the providence inquiry to find the accused guilty of desertion.
Judge Stucky points out that the stipulation specifically noted that all matters included in it, and the several other documents attached to the stipulation, were admissible both for the providence inquiry and at trial. During that providence inquiry, the accused raised several matters in extenuation and mitigation of his absence which might militate against finding him guilty of desertion. The trial counsel smelled a rat and sought confirmation that the judge would not use the providence inquiry to determine Appellant's guilt on the greater offense of desertion. Trial counsel noted that the accused had not been subject to cross-examination during the providence inquiry and that it was improper to consider such matters in a trial on the merits. The defense counsel pleaded with the judge to consider it and went so far as to argue that he could even consider it to establish the elements of the offense. The judge overruled the trial counsel's objection and stated he would consider the providence inquiry. That, Judge Stucky argues, is invited error, and we don't reward an accused who convinces a judge to err.
This is clearly invited error. I doubt the defense counsel had any notion that he was convincing the judge to screw up. He or she just wanted to get the defense before the judge without subjecting the client to cross-examination. And the trial counsel understood exactly what was happening. Alas, the appellant's victory is a hollow one. The Court affirmed the sentence.
There is another issue that neither the majority nor the dissent discusses -- confirmation of the sentence. The only mention of the sentence is as follows:
The decision of the United States Army Court of Criminal Appeals as to the findings of guilty of desertion terminating on March 17, 2003 is reversed and that specification and charge are dismissed. A finding of guilty of unauthorized absence in violation of Article 86, UCMJ, terminating on January 22, 2003, and the remaining findings and sentence are affirmed.In order to affirm the sentence after finding error, the CAAF must have reassessed the sentence. Where does the authority to do so come from? What standard does the Court apply?
The CCAs clearly have the authority to reassess a sentence. Article 66(c), UCMJ. But if a CCA had affirmed the sentence in the words used by CAAF in this decision, the CAAF would have set it aside and returned it for compliance with United States v. Suzuki, 20 M.J. 248 (C.M.A. 1985) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In those cases, the Court held that when a court of criminal appeals reassesses a sentence due to prejudicial error, "it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed." Suzuki, 20 M.J. at 249. Evidently, the CAAF doesn't have to do that.
Of course, the Suzuki/Sales rule is one of those rules Chief Judge Everett made up without citation to statute or case law. Instead, he notes that "[o]nly in this way can the requirements of Article 59(a), UCMJ, 10 U.S.C. 859, be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51 and 52, UCMJ, 10 U.S.C. §§ 851 and 852, respectively." Suzuki, 20 M.J. at 249. But that is an argument the Supreme Court specifically rejected almost 30 years earlier.
No one could say what sentence the court-martial would have imposed if it had found petitioner guilty only of attempted rape. But Congress avoided the necessity for conjecture and speculation by placing authority in the board of review to correct not only the findings as to guilt but the sentence as well.Jackson v. Taylor, 353 U.S. 569, 579 (1957).
As has been expressed at CAAFlog, the Suzuki/Sales rule doesn't make a lot of sense. Court members, especially in today's world with so few contested cases, often have little experience in sentencing. Especially under these circumstances, its hard to argue with the Supreme Court -- no one could say what the court martial would have done absent the error. It might be a different story if the CCA was guessing what a judge would have done.
Regardless, it appears that the CAAF is claiming the the authority to reassess a sentence and doesn't have to explicitly state that they have complied with Suzuki/Sales. It is also surprising that CAAF refuses to grant to the judges on the CCAs the same presumption that they give to trial judges -- that they know and apply the law correctly.