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United States v. Winckelmann, C.A.A.F. (2013)
United States v. Winckelmann, C.A.A.F. (2013)
v.
Douglas K. WINCKELMANN, Lieutenant Colonel
U.S. Army, Appellant
No. 11-0280
Crim. App. No. 20070243
United States Court of Appeals for the Armed Forces
Argued September 17, 2013
Decided December 18, 2013
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, J., and EFFRON, S.J., joined. STUCKY and RYAN, JJ.,
each filed separate opinions concurring in the result.
Counsel
For Appellant: Frank J. Spinner, Esq. (argued); Captain John L.
Schriver (on brief); Captain Brian D. Andes and Captain Kristin
McGrory.
For Appellee: Captain Jessica J. Morales (argued); Major
Catherine L. Brantley and Major Robert A. Rodrigues (on brief);
Major Elizabeth A. Claus and Captain Edward J. Whitford.
Military Judge:
David L. Conn
United States
Winckelmann II,
During its
The
Id.
This
70 M.J. at 409.
Id.
We affirmed the
Id.
WL 3860024 at *3.
United States v.
Sales, 22 M.J. 305 (C.M.A. 1986), set the standard for sentence
reassessment by the lower appellate courts intended to cure
prejudicial error within a framework of broad discretion.
Finally, Moffeit reaffirmed Sales, but a separate concurrence in
6
Moffeit, 63
Moreover,
CCA LEXIS 807, at *35, 2013 WL 5460154, at *11 (A.F. Ct. Crim.
App. Sept. 5, 2013) (unpublished); United States v. Gorski, 71
M.J. 729, 738 (A. Ct. Crim. App. 2012).
Id.
Id. at 572.
In response to this
Id. at 574.
Citing Article
Id. at 576.
Id. at
Id.
Id.
to observe that:
Congress thought the board of review could modify
sentences when appropriate more expeditiously, more
intelligently, and more fairly. Acting on a national
basis the board of review can correct disparities in
sentences and through its legally-trained personnel
determine more appropriately the proper disposition to
be made of the cases. Congress must have known of the
problems inherent in rehearing and review proceedings
. . . .
Id.
Although
This consistent
22 M.J.
discharge.
Id.
Id.
It affirmed the
10 U.S.C. 925.
9
Id.
Id. at 308.
63 M.J. at 41.
In members cases it
A court-martial
has neither continuity nor situs and often sits to hear only a
single case.
Jackson, 353
Id. at 580.
Id.
It is hoped that
These include:
12
(4)
Going forward,
As a result, and in
This also
14
375 (per curiam), rehg denied, 455 U.S. 1038 (1982); see United
States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996) (holding
that a lower court does not have the discretion to overrule the
precedent of a superior court).
The Supreme
Court refused:
We find no authority in the Uniform Code for such a
procedure and the petitioner points to none. The
reason is, of course, that the Congress intended that
the board of review should exercise this power. This
is true because the nature of a court-martial
proceeding makes it impractical and unfeasible to
remand for the purpose of sentencing alone. See
United States v. Keith, 1 C.M.A. 442, 451, 4 C.M.R.
34, 43 (1952). Even petitioner admits that it would
now, six years after the trial, be impractical to
attempt to reconvene the court-martial that decided
the case originally. A court-martial has neither
continuity nor situs and often sits to hear only a
single case. Because of the nature of military
service, the members of a court-martial may be
scattered throughout the world within a short time
after a trial is concluded. Recognizing the
impossibility of remand to the same court-martial,
petitioner suggests as an alternative that the case
Instead, we have
The statement
is required to follow.
The majority also affirms a standard for the Courts of
Criminal Appeals to follow in reassessing a sentence:
The court
can only affirm a sentence that did not exceed that which would
have been adjudged by the court-martial, absent the error.
Winckelmann, __ M.J. at __ (10) (citing United States v.
Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006); Sales, 22 M.J. at 308).
But the Supreme Court rejected a similar argument in Jackson as
based on pure conjecture.
Therefore, this
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.
569, 579-80 (1957).
353 U.S.
See, e.g.,
Flood v. Kuhn, 407 U.S. 258, 282 (1972) ([Our past decision
produced] an aberration that has been with us now for half a
century, one heretofore deemed fully entitled to the benefit of
stare decisis . . . .); see also Hilton v. South Carolina Pub.
Rys. Commn, 502 U.S. 197, 202 (1991) (Considerations of stare
decisis have special force in the area of statutory
interpretation, for here, unlike in the context of
constitutional interpretation, the legislative power is
implicated, and Congress remains free to alter what we have
done. (citation and quotation marks omitted)).
Regardless, I disagree with the majority that the CCA is
required to explain its reasoning on the record in order to be
afforded greater deference in its decision to reassess the
sentence rather than order a rehearing on sentence.
Winckelmann, __ M.J. at __ (13).
United States v.
Given that