United States v. Chin

75 M.J. 220, 2016 CAAF LEXIS 312, 2016 WL 1659976
CourtCourt of Appeals for the Armed Forces
DecidedApril 26, 2016
Docket15-0749/AF
StatusPublished
Cited by154 cases

This text of 75 M.J. 220 (United States v. Chin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chin, 75 M.J. 220, 2016 CAAF LEXIS 312, 2016 WL 1659976 (Ark. 2016).

Opinions

Judge RYAN

delivered the opinion of the Court.1

The Government appeals the United States Air Force Court of Criminal Appeals’ (AFCCA) decision, pursuant to its review under Article- 66(e), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2012), not to approve certain specifications because they constituted an unreasonable multiplication of charges, despite Appellee’s pretrial agreement (PTA), which waived all waivable motions. United States v. Chin, No. ACM 38462 (recon), 2016 CCA LEXIS 241, 2015 WL 4039695 (A.F.Ct.Crim.App. June 12, 2015) (unpublished). Because we conclude that a ease is subject to a complete appellate review by a Court of Criminal Appeals under Article 66(c), UCMJ, unless, after trial and sentencing, an accused waives appellate review altogether pursuant to Article 61, UCMJ, 10 U.S.C. § 861 (2012), we affirm the decision of the AFCCA.

I. BACKGROUND

The Government and Appellee signed a PTA that included a “waive all waivable motions” provision and limited Appellee’s punishment to a maximum of twenty-four months of confinement and a bad-conduct discharge. At trial, the military judge specifically addressed the “waive all waivable motions” provision. Defense counsel stated that they “would have raised a multiplicity motion.” After determining that “multiplicity motions” were waived as part of the PTA, the military judge approved the PTA and convicted Appellee, consistent with his pleas, of six specifications of failure to obey a lawful general order or regulation, seven specifications of dereliction of duty for failing to store and protect classified information and unauthorized disclosure of that information, one specification of larceny of military property, and five specifications of unauthorized retention and failure to deliver documents relating to the national defense in violation of Articles 92, 121, 134, UCMJ, 10 U.S.C. §§ 892, 921, 934 (2012), Appellee was sentenced to twelve months of confinement, forfeiture of all pay and allowances, reduction to pay grade E-2, and a bad-conduct discharge. The convening authority approved only ten [222]*222months of confinement but otherwise approved the sentence as adjudged.

On April 7, 2015, the AFCCA dismissed and merged various charges and specifications, citing the doctrine of unreasonable multiplication of charges. United States v. Chin, No. ACM 38452, 2015 CCA LEXIS 140, at *2, 2015 WL 2064411, at *1 (A.F.Ct.Crim.App. Apr. 7, 2015) (unpublished). The AFCCA reassessed Appellee’s sentence and approved the same sentence as originally adjudged by the convening authority. 2015 CCA LEXIS 140, at *33, 2015 WL 2064411, at *11. After granting the Government’s motion for reconsideration, on June 12, 2015, the AFCCA reaffirmed its decision. Chin, 2015 CCA LEXIS 241, at *7 n. 2, *10-11, 2015 WL 4039595, at *2 n. 2, *3. The AFCCA noted that while, “[ojrdinarily, an affirmative waiver of a claim of multiplicity and unreasonable multiplication of charges would end [the] inquiry,” it declined to apply waiver in this case because “Article 66(c) empowers the service courts to consider claims of multiplicity or unreasonable multiplication of charges even when those claims have been waived.” Chin, 2015 CCA LEXIS 241, at *9-11, 2015 WL 4039595, at *3. Furthermore, the AFC-CA observed that “[tjhis deviation from our past treatment and application of waiver is warranted by the facts of this case .... in that ,.. the charging scheme grossly exaggerates the appellant’s criminality,” 2015 CCA LEXIS 241, at *12, 2015 WL 4039595, at *4. The AFCCA then dismissed three specifications as being an unreasonable multiplication of charges for findings and merged five specifications for sentencing. 2015 CCA LEXIS 241, at *19-31, *35, 2015 WL 4039695, at *6-9, *11. In its reassessment of Appellee’s sentence, the AFCCA approved the adjudged sentence. 2015 CCA LEXIS 241, at *31-35, 2015 WL 4039595, at *10-11.

II. DISCUSSION

A.

The scope and meaning of both Article 66(e), UCMJ, and Article 61, UCMJ, are matters of statutory interpretation, questions of law reviewed de novo. United States v. Schloff, 74 M.J. 312, 313 (C.A.A.F.2015), cert. denied, — U.S. -, 136 S.Ct. 915, 193 L.Ed.2d 793 (2016).

We agree that as a general matter “[w]hen an error is waived, ... the result is that there is no error at all and an appellate court is without authority to reverse a conviction on that basis.” United States v. Weathers, 186 F.3d 948, 955 (D.C.Cir.1999); see also United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). This rule is consistent with the “limited power” language of Federal Rule of Criminal Procedure 52(b). Olano, 507 U.S. at 731-33, 113 S.Ct. 1770. In line with this precedent and this Court’s more circumscribed statutory authority, we have held that an appellant may not raise on appeal, and that we cannot rectify, an error that was waived at trial. United States v. Campos, 67 M.J. 330, 332-33 (C.A.A.F.2009); United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F.2009).

However, this “ordinary” rule does not apply to a CCA’s wholly dissimilar statutory review. Article 66(e), UCMJ, requires that the CCAs conduct a plenary review and that they “affirm only such findings of guilty and the sentence or such part or amount of the sentence, as [they] find[ ] correct in law and fact and determine[ ], on the basis of the entire record, should be approved.” Article 66(c), UCMJ; see also United States v. Nerad, 69 M.J. 138, 141-44 (C.A.A.F.2010); United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F.2001); United States v. Claxton, 32 M.J. 159, 162 (C.M.A.1991); United States v. Cole, 31 M.J. 270, 272 (C.M.A.1990); United States v. Evans, 28 M.J. 74, 75-76 (C.M.A.1989); United States v. Britton, 26 M.J. 24, 26-27 (C.M.A.1988). A complete Article 66, UCMJ, review is a “substantial right” of an accused, United States v. Jenkins, 60 M.J. 27, 30 (C.A.A.F.2004), and a CCA may not rely on only selected portions of a record or allegations of error alone. See United States v. Adams, 59 M.J. 367, 372 (C.A.A.F.2004); see also United States v. Roach, 66 M.J. 410, 412 (C.A.A.F.2008) (“[T]he scope of review by the [CCA] differs in significant respect [223]*223from direct review in the civilian federal appellate courts.”).

“If the sentence approved by the convening authority includes capital punishment, a punitive discharge, or confinement for one year or more, [Article 66(c), UCMJ,] provides for mandatory review,” and the CCAs have an “affirmative obligation to ensure that the findings and sentence in each such case are ‘correct in law and fact ... and should be approved.’ ” United States v. Miller, 62 M.J. 471, 472 (C.A.A.F.2006) (alteration in original) (citation omitted).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. HEMRY
Navy-Marine Corps Court of Criminal Appeals, 2024
United States v. Portillos
Air Force Court of Criminal Appeals, 2024
United States v. Blackburn
Air Force Court of Criminal Appeals, 2024
United States v. Flores
Court of Appeals for the Armed Forces, 2024
United States v. Davis
Air Force Court of Criminal Appeals, 2024
United States v. Sergeant JUSTIN DENHAM
Army Court of Criminal Appeals, 2024
United States v. Emerson
Air Force Court of Criminal Appeals, 2024
United States v. TRUSS
Navy-Marine Corps Court of Criminal Appeals, 2023
United States v. Daddario
Air Force Court of Criminal Appeals, 2023
United States v. James D (2023 Wl -------)
U S Coast Guard Court of Criminal Appeals, 2023
United States v. King
Air Force Court of Criminal Appeals, 2023
United States v. Nestor
Air Force Court of Criminal Appeals, 2023
United States v. Paugh
Air Force Court of Criminal Appeals, 2023
United States v. Moss
Air Force Court of Criminal Appeals, 2023
United States v. Kitchen
Air Force Court of Criminal Appeals, 2023
United States v. Berry
Air Force Court of Criminal Appeals, 2022
Chapman v. Warden
E.D. Virginia, 2022
United States v. Flores 2
82 M.J. 737 (U S Coast Guard Court of Criminal Appeals, 2022)
United States v. Mar
Air Force Court of Criminal Appeals, 2022
United States v. White
Air Force Court of Criminal Appeals, 2022

Cite This Page — Counsel Stack

Bluebook (online)
75 M.J. 220, 2016 CAAF LEXIS 312, 2016 WL 1659976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chin-armfor-2016.