United States v. Miller

61 M.J. 827, 2005 CCA LEXIS 316, 2005 WL 2667194

Opinions

ORDER AND OPINION

OPINION AND ORDER OF THE COURT RESPONDING TO APPELLANT’S MOTIONS

BAUM, Chief Judge:

Background

Appellant was tried by special court-martial military judge alone on 21 November 2003. After conviction of various drug offenses pursuant to pleas of guilty, entered in accordance with a pretrial agreement, Appellant was sentenced by the judge to a bad-conduct discharge and reduction to E~l, which the Convening Authority approved on 18 June 2004. Approximately four months prior to the Convening Authority’s action, Appellant and his defense counsel signed a waiver of appellate review, which counsel filed with the Convening Authority on 5 March 2004. Such a filing before the Convening Authority acted had no effect according to United States v. Hernandez, 33 M.J. 145 (C.M.A.1991); accord United States v. Smith, 34 M.J. 247 (C.M.A.1992); United States v. Walker, 34 M.J. 317 (C.M.A.1992); United States v. Smith, 44 M.J. 387 (C.A.A.F.1996). However, after the Convening Authority approved the sentence on 18 June 2004, trial defense counsel filed the waiver of appellate review again on 9 July-2004, resubmitting the waiver previously signed by Appellant with a statement that Appellant had been advised of his appellate rights and the effect of a waiver, but persisted in his desire to not have his case reviewed on appeal. Under the terms of Article 61, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 861, as interpreted by United States v. Hernandez, 33 M.J. 145 (C.M.A.1991), a waiver is supposed to be filed within 10 days after action by the convening authority is served on the accused or defense counsel. Article 61, UCMJ, states that such a waiver must be signed by both the accused and defense counsel, but does not state explicitly when signing is permitted or when signing is unacceptable. Rule for Courts-Martial (R.C.M.) 1110(f), Manual for Courts-Martial (MCM), United States, (2002 ed.), the rule implementing Article 61, UCMJ, initially did not say anything about the time of signing. However, in 1991, the President amended that rule so that it now states: “The accused may sign a waiver of appellate review at any time after the sentence is announced.” R.C.M. 1110(f)(1).

The Convening Authority treated counsel’s submission as an effective waiver of appellate review, causing the record to be reviewed by a judge advocate under the terms of R.C.M. 1112(a) and (d), pursuant to R.C.M. 1110. Thereafter, the record was forwarded to the Judge Advocate General’s Military Justice Office in accordance with COMDTINST M5810.1D, Military Justice Manual, dated 17 August 2000. Because of the purported waiver, the record was deemed to be barred from review by this Court under Article 66, UCMJ, 10 U.S.C. § 866, and, instead, was sent to the Chief Judge, in accordance with standing practice for cases not renewable by the Court, for a gratuitous review by the Chief Judge under Article 69(b) to assist the Judge Advocate General in determining whether action under that Article might be warranted. Without performing that review, the record was returned to the Chief of the Office of Military Justice for reevaluation of the viability of Appellant’s purported waiver, since it was not signed by Appellant within the time that Article 61, UCMJ, and Hernandez, 33 M.J. at 148, require for filing of waivers.

Upon reevaluation, the Judge Advocate General presumed the waiver of Article 66, UCMJ, review to be valid. However, he decided to exercise his authority under Article 69(d) by referring the record to this Court in order to resolve the open question whether R.C.M. 1110(f) is a correct interpretation of Article 61, UCMJ. Put another way, we must decide now whether, notwithstanding the amended R.C.M. 1110(f), the law requires an accused to sign a waiver of appellate review during the time mandated for filing of that waiver in order for it to be valid. Appellant has moved that we return the record to the Judge Advocate General for further disposition, arguing that he has substantially complied with all pertinent procedural means to waive Article 66, UCMJ, review of his court-martial. That motion is denied, because, even assuming the waiver to be effective, only review under Articles 66 and 69(a), UCMJ, are barred by a valid waiver of appellate review, according to the terms of Article 61(c), UCMJ. Accordingly, we will perform the review assigned to this Court under Article 69(d), UCMJ, 10 U.S.C. § 869(d), by the Judge Advocate General.

Time Requirement for Signing Waiver of Appellate Review

In the record before us, although a waiver of appellate review pursuant to Article 61, UCMJ, was submitted to the Convening Authority twice, once before the time mandated for filing by Article 61, UCMJ, and Hernandez, 33 M.J. at 148, and again at the proper time within 10 days after service of the Convening Authority’s action, Appellant signed the waiver only once, when the waiver was filed improperly before action by the Convening Authority. Granted, the second filing was at the proper time, but Appellant did not sign it again at that time. The question to be answered is whether the signing by Appellant before the Convening Authority’s action was valid in light of the 1991 amendment to R.C.M. 1110(f). We think this question is answered by a rereading of United States v. Hernandez, 33 M.J. 145 (C.M.A.1991); United States v. Smith, 34 M.J. 247 (C.M.A.1992); United States v. Walker, 34 (C.M.A.1992); and United States v. Smith, 44 M.J. 387 (C.A.A.F.1996).

We discern language in those eases that strongly suggests that signing is limited to the time for filing. First, in Hernandez, the Court of Military Appeals granted review of the following issue:

WHETHER A WAIVER OF APPELLATE REVIEW EXECUTED BEFORE THE CONVENING AUTHORITY TAKES ACTION ON A CASE DEPRIVES THIS HONORABLE COURT OF JURISDICTION.

Hernandez, 33 M.J. at 147 (emphasis added). The Court responded that, “Clearly, the answer must be in the negative.” Id. at 147.

While the Court went on to discuss the time-of-fihng requirement and seemed to hold the waiver ineffective because of its filing at the wrong time, saying nothing more about the time of signing or executing, the fact remains that the granted issue relates to the time of execution, which is a term that includes the act of signing¹. Subsequent to Hernandez, the President amended R.C.M. 1110(f) to allow for signing of waivers any time after sentence is announced. The Court of Military Appeals’ view on this subject was reiterated the next year, however, in United States v. Smith, when it stated that the Court in Hernandez “held that the statute [Article 61, UCMJ] required that a waiver of appellate review shall be signed by the accused and defense counsel within 10 days after the action of the convening authority had been served upon the accused or his defense counsel.” United States v. Smith, 34 M.J. 247, 249 (C.M.A.1992) (emphasis added). Also, that same year, the Court of Military Appeals, in United States v. Walker, stated, “[In United States v. Hernandez], this Court held that a waiver of appeal executed prior to a convening authority’s action was ineffective.” United States v. Walker, 34 M.J. 317, 318 (C.M.A.1992) (emphasis added). Subsequently, the Court of Appeals for the Armed Forces held, in the later Smith case, that the amended R.C.M. 1110(f) did not affect the ruling in Hernandez. United States v. Smith, 44 M.J. 387, 392 (C.A.A.F.1996).

Strictly speaking, the holdings of these cases may be seen as relating solely to the time of filing rather than signing, since the waivers at issue were filed too early at a time clearly not allowed by the statute. However, the waivers were signed at an earlier time as well, and given the rationale in Hernandez for its interpretation of Article 61, UCMJ, it seems clear that the Court saw that Article as covering both signing and filing. The Court’s language in all four cases includes signing along with filing, and the language in the later Smith case is especially clear, stopping just short of explicitly invalidating the amendment to R.C.M. 1110(f) in the following comments on the lower court’s dissent: “The dissenting judge below, recognizing our 1991 decision in Hernandez, suggests that Change 5 to RCM 1110(f) ... somehow superseded it.” Smith, 44 M.J. at 391; “It is beyond cavil that the President cannot abrogate a statute passed by Congress in matters related to military justice.” 44 M.J. at 392.

From our perspective, it seems unquestionably to be the view of our higher Court that Article 61, UCMJ, requires, for a waiver of appellate review to be valid, both signing and filing thereof within the 10 day period after service of the convening authority’s action on an accused or his defense counsel. We would need unusual facts to diverge from our higher Court’s stated view in that regard, even if that view was not deemed to be the strict holding in those cases. Indeed, the facts in this case are different from those in the four precedents: the prematurely signed waiver was resubmitted to the Convening Authority within the proper time frame, with the following statement by trial defense counsel: “As provided by [R.C.M. 1110 and 1203], I have advised SR Miller of his appellate rights, and he has reiterated his desire to waive his appellate rights.”

Do these different facts warrant a different result? We think not. Certainly, when signed before action by the convening authority, the accused does not have the understanding required by Article 61, UCMJ, as interpreted by United States v. Hernandez. Appellant needed to know what action the convening authority had taken in order for the waiver to be fully informed. The defense counsel’s statement gives us no confidence that he had given Appellant new advice in light of the new stage of the case, or that Appellant had made a new fully informed decision. It makes no sense then for the waiver signed earlier to be considered valid simply because it is submitted after the convening authority acts.

The provision in R.C.M. 1110(f) allowing signing of a waiver at any time arguably has been declared invalid by our higher Court. At best, it invites practices that flout the spirit of Article 61, UCMJ, as interpreted by our higher Court. It should be removed from the MCM.

Waiver Decision and Conversion to Article 66, UCMJ, Review

In light of the foregoing, we hold that the waiver of appellate review filed with the Convening Authority was not a valid waiver. Accordingly, the record should have been referred to this Court for review pursuant to Article 66, UCMJ. At this point, having completed our Article 69(d) review, we could return the record to the Judge Advocate General for referral back to this Court for a review under Article 66, UCMJ. In the interest of judicial economy, however, we will treat the referral now as one for Article 66, UCMJ, review. In this regard, Appellant has moved for withdrawal of appellate review pursuant to Article 61, UCMJ. He has also moved for attachment of a request for withdrawal of review signed by him and an affidavit. The motion to attach these documents will be granted.

Motion to Withdraw Article 66, UCMJ, Review

In acting on the motion to withdraw, we note the distinct difference between the statutory treatment of withdrawal as opposed to waiver of appellate review. Submission of a waiver is limited to a particular period of time, as we have already discussed, but Article 61, UCMJ, allows a withdrawal to be made at any time. As pointed out in United States v. Rimando, 51 M.J. 553 (C.G.Ct.Crim.App.1999), the Court of Appeals for the Armed Forces, in accounting for the difference between the two, reasoned that “withdrawal of an appeal occurs under judicial supervision, which provides some safeguards against improvident action by an accused.” United States v. Hernandez, 33 M.J. 145, 149 (C.M.A.1991). Those safeguards are normally not present in cases of waiver of appellate review because judicial oversight in those cases is rare, making compliance with the statutory requirements for waiver all the more important to possibly prevent uninformed, involuntary submissions.

In the past, we have taken to heart our judicial review responsibilities with respect to motions to withdraw appellate review, which has resulted in a determination in one case that a withdrawal request had been improperly induced in violation of R.C.M. 1110(c), United States v. Hudson, 58 M.J. 830 (C.G.Ct.Crim.App.2003), rev’d on other grounds, 59 M.J. 357 (C.A.A.F.2005), and various denials of withdrawal in other cases. United States v. Haynes, 53 M.J. 738 (C.G.Ct.Crim.App.2000); United States v. Rimando, 51 M.J. 553 (C.G.Ct.Crim.App.1999); United States v. Ross, 32 M.J. 715 (C.G.C.M.R.1991); United States v. Johnson, 29 M.J. 1065 (C.G.C.M.R.1990). After judicial review of Appellant’s motion for withdrawal in the instant case, we find none of the reasons to deny the motion that were found in previous cases. Moreover, after considering Appellant’s affidavit filed with the Court, we conclude that the withdrawal request was informed and voluntary. Accordingly, it will be granted.

In light of the foregoing, it is by the Court this 19th day of October 2005,

ORDERED:

That Appellant’s motions to file documents and to withdraw the record from appellate review are hereby granted. The record is returned to the Judge Advocate General for whatever action remains to finalize this ease.

McCLELLAND, Judge and TEAL, Judge concur.

Footnotes

1

. The 3rd definition of “execute” in Black’s Law Dictionary is: To make (a legal document) valid by signing; to bring (a legal document) into its final, legally enforceable form. Black’s Law Dictionary 609 (8th ed.2004). The 4th definition of "execute” in The American Heritage Dictionary is: To make valid, as by signing. The American Heritage Dictionary of the English Language 621 (4th ed.2000).