United States v. Specialist TALAN S. GARNER ( 2018 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
WOLFE, SALUSSOLIA, and ALDYKIEWICZ
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist TALAN S. GARNER
United States Army, Appellant
ARMY 20180135
Headquarters, United States Army Alaska
Scott A. Oravec, Military Judge
Colonel Roseanne M. Bennett, Staff Judge Advocate
For Appellant: Major Todd W. Simpson, JA; Major William M. Grady, JA.
For Appellee: Lieutenant Colonel Eric K. Stafford, JA.
19 December 2018
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SUMMARY DISPOSITION
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Per Curiam:
This case is at this court for review under Article 66(c), Uniform Code of
Military Justice [UCMJ]. Appellant submitted the case for our consideration
without any assignments of error. With regard to certain specifications and
specified legal issues, appellant (both personally and through counsel) stated that he
waived certain legal errors. 1 However, appellant has not waived or withdrawn our
appellate review. See UCMJ arts. 61, 66.
A knowing and voluntary waiver extinguishes any legal error. See, e.g.,
United States v. Gladue, 67 M.J. 311, 313-14 (C.A.A.F. 2009). Thus, a record
containing a legal error will nonetheless be “correct in law” if the error was properly
waived. Thus, for all issues for which appellant’s waiver is applicable, the record is
correct in law.
1
The government does not oppose the error.
GARNER—ARMY 20180135
But, just because an appellant has waived an issue, does not mean that the
duty of this court is at an end. This court must still conduct a review of the entire
record under Article 66(c), UCMJ. Our duty to determine whether a finding “should
be approved” includes a determination as to whether we should grant relief for
waived legal errors. When a legal error has been waived, our review under Article
66(c), UCMJ, includes a determination as to whether we should “notice” (i.e. set
aside) the waiver.
Having completed our review of the entire record under Article 66(c), UCMJ,
we accept appellant’s waiver. The waiver in this case was tailored and given with
the advice of appellate counsel. Were we to notice the waiver we would be granting
appellant “relief” that he has not requested and has specifically disclaimed. While
appellant did not (and in this case need not) explain the basis of the waiver, nothing
in the record gives us pause as to why we should not let the waiver stand. 2
Appellant’s waiver in this case is atypical, but we see nothing that prohibits
it. The waiver was not made as part of a pretrial agreement under Rule for Courts-
Martial [R.C.M.] 705(c)(1)(B), nor has appellant received any inducement for the
waiver. See R.C.M. 1110(c). Indeed, a knowing and voluntary waiver on appeal,
especially when done in concert with the advice of appellate counsel, will often
serve the purposes of judicial economy.
CONCLUSION
On consideration of the entire record, the findings and sentence are
AFFIRMED.
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk
Clerkof
ofCourt
Court
2
It is enough for us to determine that there are objectively reasonable reasons why
an appellant may elect to waive certain issues on appeal. For example, an appellant
may desire a quick end to the appellate proceedings in order to receive a discharge,
or to terminate the Army’s personal jurisdiction over him. Or, an appellant on
excess leave, and who has moved on to the next stage of his life, may not want to
risk the chance of a rehearing where he will be required to report back to the Army.
2