There is a conflict of opinion concerning the authority of this Court to reassess sentences. The language of Article 66(c), UCMJ, its legislative history, and the decision of the Supreme Court in Jackson v. Taylor, 353 U.S. 569, 1 L. Ed. 2d 1045, 77 S. Ct. 1027 (1957), give this Court the responsibility and unfettered authority to reassess a sentence, even after modifying the approved findings. On the other hand, our superior court holds that the service courts may only reassess a sentence after a finding of prejudicial error if the court was convinced that the sentence, as reassessed, is not greater than the sentence that the original court-martial would have imposed. United States v. Eversole, 53 M.J. 132 (2000);  United States v. Taylor, 47 M.J. 322, 325 (1997); United States v. Peoples, 29 M.J. 426 (C.M.A. 1990); United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985). In United States v. Sills, 56 M.J. 556, 571 (A.F. Ct. Crim. App. 2001), set aside on other grounds, No. 02-0048/AF (15 Jan 2002), we analyzed these conflicting precedents, and HN8 concluded we are bound by the will of Congress and the decision of the Supreme Court. While the Manual for Courts-Martial gives this Court the authority to order a new hearing on sentence, it does not require us to do so. R.C.M. 810(a)(2) and 1203(c)(2).
United States v. Roper, 2002 CCA LEXIS 24, 10-11, 2002 WL 169256 (A.F.C.C.A. Jan. 24, 2002).
In United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. Oct. 31, 2014), No. 15-0347/MC. CCA 201300341, (C.A.A.F. 30 January 2015), the Judge Advocate General certified the following issue to the Court of Appeals for the Armed Forces (CAAF).
WHETHER PRECEDENT AUTHORIZING COURTS OF CRIMINAL APPEALS TO ORDER SENTENCE-ONLY REHEARINGS SHOULD BE OVERRULED BASED ON (A) JACKSON v. TAYLOR, 353 U.S. 569 (1957), WHICH STATED “NO [SUCH] AUTHORITY” EXISTS; (B) THE PLAIN LANGUAGE OF THE STATUTE INCLUDING THE CONJUNCTIVE “FINDINGS AND SENTENCE” IN ARTICLE 66(d) IN CONTRAST TO AUTHORITY GRANTED THE JUDGE ADVOCATES GENERAL IN ARTICLE 69(a) TO ACT WITH RESPECT TO “FINDINGS AND SENTENCE OR BOTH” AND THE CONVENING AUTHORITY IN ARTICLE 60(f)(3) TO ORDER SENTENCE REHEARINGS; AND (C) JUDICIAL ECONOMY.
In Jackson v. Taylor, 353 U.S. 569 (1957), the appellant sought to require an order for a rehearing on sentence in his case. After a thorough review of the relevant statutes and law, the court held that rehearings on sentence are not authorized.
In United States v. Miller, 10 C.M.A. 296, 27 C.M.R. 370 (1959), the then Court of Military Appeals, determined that a Service appellate court could continue to order rehearings on sentence. This is error in contradiction to the higher court’s holding in Jackson v. Taylor. The Service courts and the CAAF have continued to follow Miller. In trilogy of significant cases the CAAF has sought to set out criteria and the boundaries on how the Service courts exercise their “discretion” to order a rehearing rather than reassess the sentence themselves. The first significant case after Miller is the well-known case of United States v. Sales, 22 M.J. 305 (C.M.A. 1986). The practice has continued uninterrupted since 1958, almost 60 years.
Although Jackson conclusively established the review boards’ authority to reassess sentences in appropriate cases, in light of certain dicta in Jackson, a certain amount of confusion arose as to the authority of the boards of review to order a rehearing on the sentence alone.6Link to the text of the note However, what confusion that might have arisen as a result of the dicta in Jackson was resolved by this Court in United States v. Miller, 10 C.M.A. 296, 27 C.M.R. 370 (1959). The Miller court discussed Jackson and reaffirmed that “a rehearing limited to sentence alone may be an appropriate and permissive remedy for the cure of errors not affecting findings.” 10 C.M.A. at 299, 27 C.M.R. at 373. This consistent practice has stood since 1959 without legislative amendment by Congress.
United States v. Winckelmann, 73 M.J. 11, 14 (C.A.A.F. 2013). But:
The statement in Jackson that there was no authority in the Uniform Code for a rehearing on sentence alone is neither confusing nor a mere dictum. 353 U.S. at 579. It is a core holding that this Court is required to follow.
Id. at 17 (Stucky, J., concurring in the result). And:
I agree with Judge Stucky that the Jackson v. Taylor language about “rehearing on sentence alone is neither confusing nor a mere dictum,” United States v. Winckelmann, M.J. , (3) (C.A.A.F. 2013) (Stucky,  J., concurring in the result), but a binding Supreme Court determination that: (1) the Uniform Code of Military Justice (UCMJ) does not provide for the Court of Criminal Appeals (CCA) to remand for a rehearing on sentence alone; and (2) Congress chose the process of sentence reassessment by the CCA after the CCA disapproves a finding, where a rehearing on that finding was not ordered. 353 U.S. 569, 579-80, 77 S. Ct. 1027, 1 L. Ed. 2d 1045 (1957). But while the Supreme Court in Jackson appeared to hold squarely that rehearing on sentence alone was not a legally available option for the CCA, United States v. Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370, 373 (1959), nonetheless, and inexplicably, held precisely to the contrary (“[T]he literal but entirely unreasonable construction of Article 66(d), supra, can easily be avoided merely by substituting ‘or’ for ‘and,'” to construe the statute as stating “‘findings or sentence.'”), precedent the majority follows in addressing the question before us.
Id. at 17-18 (Ryan, J., concurring in the result).
In the process the CAAF has issued more robust guidance to the Service courts. See United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006); United States v. Winckelmann.
An argument could be made that the failure of Congress to amend the rules is an act of approval of the current practice. However, this conflicts with how the Supreme Court views Congressional silence. See Patterson v. McLean Credit Union, 491 U.S. 164 (1989).
Here is my personal recommendation on how to deal with sentence reassessment on appeal. Amend Article 66(c), to add the following.
- In all cases in which the accused pleads guilty, and the sentence is imposed by a military judge,the court of criminal appeals shall reassess the sentence where sentence reassessment is considered appropriate.
- In all cases which the accused pleads not guilty, and the trial is by a military judge,the court of criminal appeals shall reassess the sentence where sentence reassessment is considered appropriate.
- In all cases in which members have adjudged the sentence, the court of criminal appeals may in its discretion order a sentence rehearing. When considering whether to order a rehearing and in reassessing, the court of criminal appeals shall, at a minimum, consider the criteria already set forth in the Sales-Moffeit-Winckelmann trilogy.