United States v. Miller , 2006 CAAF LEXIS 290 ( 2006 )

UNITED STATES, Appellant
v.
Jeffrey M. MILLER, Seaman
U.S. Coast Guard, Appellee
No. 06-5002
Crim. App. No. 005-69-01
United States Court of Appeals for the Armed Forces
Argued February 8, 2006
Decided March 14, 2006
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Commander John S. Luce Jr. (argued);
Commander Jeffrey C. Good (on brief).
For Appellee: Lieutenant Commander Nancy J. Truax (argued).
Amicus Curiae: Lieutenant Commander Jason S. Grover, JAGC, USN
(argued); Captain Pamela A. Holden, JAGC, USN, for the United
States Navy-Marine Corps Appellate Defense Division (on brief).
Amicus Curiae: Kathleen A. Duignan, Esq. (argued); Eugene R.
Fidell, Esq., and Stephen A. Saltzburg, Esq., for the National
Institute of Military Justice (on brief).
Military Judge: Michael E. Tousley
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Miller, No. 06-5002/CG
Judge EFFRON delivered the opinion of the Court.
On November 21, 2003, at a special court-martial composed of
a military judge sitting alone, Appellee was convicted, pursuant
to his pleas, of various controlled substances offenses, in
violation of Articles 112(a) and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 912(a), 934 (2000). He was
sentenced to a bad-conduct discharge and reduction to E-1.
As we describe in more detail below, this case involves
Appellee’s interest in waiving appellate review of his case. We
briefly describe the procedures for review of a court-martial in
which the sentence includes a punitive discharge and then turn
to the specific circumstances of the present appeal.
I. WAIVER AND WITHDRAWAL OF APPELLATE REVIEW
Under Article 60(c), UCMJ, 10 U.S.C. § 860(c) (2000), the
sentence in every court-martial case is submitted to the
convening authority for approval. If the sentence approved by
the convening authority includes capital punishment, a punitive
discharge, or confinement for one year or more, the UCMJ
provides for mandatory review in the Court of Criminal Appeals.
Article 66(b), UCMJ, 10 U.S.C. § 866(b) (2000). The court has
an affirmative obligation to ensure that the findings and
sentence in each such case are “correct in law and fact . . .
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and should be approved.” Article 66(c), UCMJ, 10 U.S.C. §
866(c) (2000).
Congress has provided a narrow window in which an accused
may waive appellate review in non-capital cases. Under Article
61(a), UCMJ, 10 U.S.C. § 861(a) (2000):
the accused may file with the convening
authority a statement expressly waiving the
right of the accused to such review. Such
waiver shall be signed by the accused and
defense counsel and must be filed within 10
days after the action [on the sentence] is
served on the accused or on defense counsel.
The convening authority or other person
taking such action may extend the period for
such filing by not more than 30 days.
Because a waiver may not be filed prior to the convening
authority’s action, a premature filing is invalid, and appellate
review will proceed. See United States v. Hernandez, 33 M.J.
145 (C.M.A. 1991).
If the accused has waived review by the Court of Criminal
Appeals, the convening authority must refer the case for review
by a judge advocate under Article 64, UCMJ, 10 U.S.C. § 864(2000), and Rule for Courts-Martial (R.C.M.) 1112. In specified
circumstances, including a case in which a punitive discharge
has been adjudged, the case is then submitted for further action
by an officer exercising general court-martial authority under
Article 64(b) and R.C.M. 1112(e). See Article 71(c)(2), UCMJ,
10 U.S.C. § 871(c)(2) (2000). Such cases also may be reviewed
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by the Office of the Judge Advocate General under Article 69(b),
UCMJ, 10 U.S.C. § 869(b) (2000).
If review by the Court of Criminal Appeals has not been
waived, “the accused may withdraw an appeal at any time” in a
non-capital case. Article 61(b), UCMJ, 10 U.S.C. § 861(b)
(2000). The discretion to grant or deny a motion to withdraw an
appeal is vested in the appellate courts. See Hernandez, 33
M.J. at 149.
II. APPELLEE’S WAIVER
On November 21, 2003, the day that the court-martial
adjudged his sentence, Appellee advised his defense counsel that
he wanted to waive his appellate rights, and the defense counsel
provided him with a standard waiver form. Several months later,
on February 23, 2004, Appellee signed the waiver form and mailed
it to his defense counsel. See R.C.M. 1110(f). Defense counsel
added his signature and submitted the form to the convening
authority on March 5, 2004, prior to the convening authority’s
action on the case. Because a waiver may not be filed prior to
the convening authority’s action, the filing was treated as
premature.
On June 18, 2004, the convening authority approved the
sentence as adjudged, and this action was served on defense
counsel on July 8, 2004. The next day, defense counsel
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resubmitted the previously signed waiver of appellate rights.
The waiver was accompanied by a statement from defense counsel
noting that Appellee had been advised of his appellate rights as
well as the effect of a waiver and that Appellee “has reiterated
his desire to waive his appellate rights.”
The convening authority accepted the waiver. In view of the
waiver, the convening authority transmitted the record of trial
for review by a judge advocate under Article 64(a). The judge
advocate recommended that the general court-martial convening
authority approve the findings and sentence. On November 4,
2004, the general court-martial convening authority approved the
findings and the sentence that the special court-martial
convening authority had approved. See R.C.M. 1112(e), (f);
R.C.M. 1113(b).
Pursuant to applicable Coast Guard practice, the record was
forwarded to the Commandant for final action. See Dep’t of
Transportation, Coast Guard Military Justice Manual, COMDTINST
M5810.1D, para. 5.F.3.b. (Aug. 2000). The Commandant’s office,
in turn, sent the case to the chief judge of the lower court to
conduct a review under Article 69(b) for the Judge Advocate
General. The chief judge, however, noted the issue of the
timeliness of the waiver as a predicate question to be answered
prior to any further review, and he returned the case to the
Judge Advocate General “for resolution of the issue.” On March
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18, 2005, the Judge Advocate General followed the recommendation
of his legal counsel to “[p]resume that the waiver is effective,
but refer [the] case to the Coast Guard Court of Criminal
Appeals pursuant to UCMJ Article 69(d).”
Before the Court of Criminal Appeals, Appellee again sought
to terminate appellate review. He asserted that the waiver
filed after the convening authority’s action was valid, and he
submitted an affidavit setting forth the basis for concluding
that he had exercised an informed waiver of his appellate
rights. Appellee also filed a withdrawal of appellate review in
the event that the court did not accept his waiver.
In a divided opinion, the Court of Criminal Appeals rejected
Appellee’s position on waiver and concluded that the waiver
filed with the convening authority was not valid. United States
v. Miller, 61 M.J. 827 (C.G. Ct. Crim. App. 2005). The court
also determined that the case should then be considered as a
normal, mandatory review of a punitive discharge case by the
Court of Criminal Appeals under Article 66(c) and granted
appellee’s motion to withdraw the appeal pursuant to Article
61(a). The court returned the record of trial to the Judge
Advocate General to finalize action in the case.
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III. THE CERTIFIED ISSUES
On November 17, 2005, the Judge Advocate General of the
United States Coast Guard certified the following issues for
review by our Court under Article 67(a)(2), 10 U.S.C. §
867(a)(2) (2000):
I. DID THE COAST GUARD COURT OF CRIMINAL
APPEALS, AFTER CONCLUDING THAT
[APPELLEE]’S WAIVER OF APPELLATE REVIEW
WAS INVALID, ERR BY CONDUCTING A SUA
SPONTE REVIEW UNDER ARTICLE 66(b),
WHERE THE JUDGE ADVOCATE GENERAL
CERTIFIED THE CASE TO THE COURT
PURSUANT TO UCMJ ARTICLE 69(d).
II. DID THE COAST GUARD COURT OF CRIMINAL
APPEALS ERR BY CONCLUDING THAT RCM
1110(f), WHICH EXPRESSLY PERMITS AN
ACCUSED TO SIGN A WAIVER OF APPELLATE
REVIEW “AT ANY TIME AFTER THE SENTENCE
IS ANNOUNCED,” IS CONTRARY TO UCMJ
ARTICLE 61.
III. TO THE EXTENT THAT UCMJ ARTICLE 61 IS
AMBIGUOUS, AND GIVEN THAT CONGRESS HAS
EXPRESSLY GRANTED THE PRESIDENT RULE-
MAKING AUTHORITY IN THE FIELD OF
MILITARY JUSTICE, MUST AN ARTICLE I
COURT DEFER TO THE PRESIDENT’S
REASONABLE INTERPRETATION OF THAT
ARTICLE.
The judges of the Court of Criminal Appeals issued two
thoughtful opinions in the present case. The majority focused
on the fact that Appellee signed the waiver prior to the
inception of the statutory period in which a waiver may be
filed, even though it was filed subsequently during the
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United States v. Miller, No. 06-5002/CG
appropriate time period. Miller, 61 M.J. at 828. Relying on
our opinions concerning premature filings, the majority
emphasized the importance of ensuring that the decision by an
accused to waive an appeal is made only after being fully
informed of the circumstances and consequences, including the
convening authority’s action. Id. at 829 (citing Hernandez, 33
M.J. at 147); United States v. Smith, 44 M.J. 387, 392 (C.A.A.F.
1996); United States v. Walker, 34 M.J. 317, 318 (C.M.A. 1992);
United States v. Smith, 34 M.J. 247, 249 (C.M.A. 1992).
The majority noted that at the time of Hernandez, the
Manual for Courts-Martial did not address the time period in
which the waiver could be signed and that the President
subsequently amended R.C.M. 1110(f)(1) to provide: “The accused
may sign a waiver of appellate review at any time after the
sentence is announced.” Miller, 61 M.J. at 828. In the
majority’s view, the amendment was invalid because it was
inconsistent with the purpose of Article 61, as reflected in
this Court’s decisions. Id. at 830. The majority contrasted
the uncertainty of a document signed prior to the convening
authority’s action with the confidence that they placed in
Appellee’s decision to withdraw the case from review at the
Court of Criminal Appeals. Id.
The minority opinion at the Court of Criminal Appeals
focused on the facts and circumstances concerning the filing of
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the waiver after the convening authority acted. Id. at 836
(Felicetti, J., concurring in part and dissenting in part,
joined by Kantor, J.). The minority agreed with much of the
analysis offered by the majority. In particular, the minority
emphasized the importance of demonstrating that the accused made
a provident decision to waive appellate rights after, not
before, the convening authority’s action. Id. at 835 (citing
Hernandez, 33 M.J. at 148-49). The minority also agreed that
“the preferred way to demonstrate a provident filing decision is
for the accused to sign the waiver form within 10 days of
receipt of the convening authority’s action.” Id. In that
regard, the minority stated that the record must “show that the
accused made an informed and voluntary decision after a ‘cooling
off’ period.” Id. at 835 (citing Hernandez, 33 M.J. at 148).
The narrow point of disagreement between the two opinions
involved the question of providency of the waiver decision. The
minority opinion concluded that the record “may sometimes show
that the accused’s decision to file (execute) a previously
signed waiver form was, in fact, provident.” Id. at 835. In
reaching this conclusion, the minority noted that the text of
the statute addressed both signing and filing but required only
that the filing take place after the convening authority’s
action. The minority provided a detailed description of the
legislative history reflecting the separate treatment of signing
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and filing. Id. at 834. The minority also cited the
legislative history for the proposition that Congress focused
its concern about timing on the filing rather than the signing
of the waiver form. Id. at 834-35.
The minority concluded that a waiver document may be signed
before the convening authority’s action so long as the
providency of the waiver is “demonstrated by a serious,
rational, and informed discussion between the accused and his or
her defense counsel after the [convening authority’s] action,
but before filing the waiver . . . . This informed discussion,
of course, must be documented in the record.” Id. at 836
(citation omitted). The minority also concluded that the record
of the present case demonstrated the requisite showing of
providency. Id.
We agree with the analysis offered in the minority opinion.
The preferred method of demonstrating a provident waiver is a
document signed after the convening authority’s action, but a
document signed beforehand may be used so long as the record
demonstrates a serious, rational, and informed discussion
between the accused and defense counsel after the convening
authority’s action, but before the filing of the waiver. We
also agree that the record in this case provides the requisite
showing of providency. See id. Because Appellee’s original
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waiver was valid, we answer the second certified question in the
affirmative.
Appellate review of the waiver was appropriate to ensure
that the waiver was provident. Now that the issue of providency
has been resolved, no further review is required, and the case
should be finalized. In that regard, the first certified issue,
regarding the appellate relationship between Articles 66(b) and
69(d) is moot, and we decline to address it.
The third certified issue presumes reliance on R.C.M.
1110(f) for the interpretation of Article 61. We have concluded
that the text of Article 61 does not preclude signing a waiver
at any time so long as there is a provident waiver decision
after the convening authority’s action. Because our analysis is
based on the text of Article 61, our conclusion would be the
same even if the President had not expressly authorized an early
signing under R.C.M. 1110(f). Accordingly, we view the third
certified issue as raising a question not pertinent to our
decision, and we decline to address it.
IV. CONCLUSION
The decision of the United States Coast Guard Court of
Criminal Appeals is set aside. The record is returned to the
Judge Advocate General of the Coast Guard for final disposition
of the record under Article 65, UCMJ, 10 U.S.C. § 865 (2000).
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