Judge Stucky wrote a separate concurrence that might as well have been labeled a "dubitante." He wrote that the lower court acted properly under the existing case law, but suggested that the existing case law is wrong.
The majority holds flatly that "[t]he action taken on appellate review in this case was within the power granted to the Court of Criminal Appeals by Article 66(c), UCMJ." Id., slip op. at 3. To understand what is really going on, one must read the Air Force Court's unpublished opinion in the case, which is available here.
We previously provided this synopsis of the Air Force Court's Perez opinion:
Senior Airman Perez was found guilty of rape, disobeying an order, and assault consummated by a battery. The military judge sentenced him to confinement for 18 months, a BCD, and reduction to E-1. After trial, the SJA's office discovered that the alleged rape victim had recanted. The CA ordered a post-trial Article 39(a) session. The military judge then found that credible evidence existed that the alleged victim had recanted and that that new evidence warranted a new trial. He also stated that had he been aware of the new evidence, he would not have convicted Perez of rape and that he would have imposed a sentence of only confinement for six months, reduction in grade, and total forfeitures for the remaining offenses.
Rather than order a new trial, the convening authority disapproved the finding of guilty to the rape offense. At the SJA's advice, the CA approved a sentence of a BCD, confinement for 206 days, and reduction to E-1. (Note that the MJ had said his sentence for the remaining offenses would not have included a punitive discharge.)
The issue before the Air Force Court was whether this action by the convening authority was an unreviewable exercise of clemency or a legal matter that could be subjected to the equivalent of a Sales/Peoples analysis. The Air Force Court concluded that it was the latter. The court reasoned:
In this case, although there was no error at the time of trial, thereafter new evidence was discovered. This evidence met the criteria, under R.C.M. 1210, for a new trial. Rather than ordering a rehearing on findings and sentencing or sentencing only, the convening authority decided to take other corrective action designed solely to provide an expeditious means to correct the error. See R.C.M. 1107(c)(2)(A), Discussion. In the case sub judice, the actions of the convening authority amount to corrective action based upon errors (new evidence) rather than action in the form of clemency.
The court then ruled that the CA erred in his reassessment when he approved a sentence greater than that which the MJ would have adjudged. The court reasoned:
The convening authority had the benefit of knowing exactly what the sentencing authority would have done, but he reassessed a sentence greater than that which the sentencing authority would have imposed absent the error (new evidence). Under the unique circumstances of this case, the correct standard would have been to order a sentence rehearing or apply the above referenced standard for sentence reassessment.
That was the opinion that CAAF has now held to be "within the power granted to the Court of Criminal Appeals by Article 66(c), UCMJ." Perez, slip op. at 3.
In a separate opinion concurring in the result, Judge Stucky writes that the Air Force Court's action was within the authority recognized by existing CMA/CAAF precedent, but suggests that such precedent improperly constrains what Congress intended to be the CA's unlimited discretion.
Judge Stucky observes:
In United States v. Reed, 33 M.J. 98 (C.M.A. 1991), this Court noted that a convening authority is not required to correct legal errors, but "it is entirely appropriate and certainly commendable for a convening authority in his discretion to undertake curing such an error before the case reaches appellate levels." Id. at 99. But "[w]here he does so, his action must be guided by the same rules applicable to appellate authorities." Id. The accused must be "'placed in the position he would have occupied if an error had not occurred.'" Id. at 99-100 (quoting United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988)). In other words, the convening authority must either approve a sentence no greater than the sentencing authority would have adjudged absent the error or order a sentence rehearing. See id. (citing United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986); United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)).
But Judge Stucky expresses "serious doubt as to whether this holding can be squared with the plain language of Article 60, UCMJ, or the traditional understanding of the convening authority's powers."
Something must have gone horribly wrong. This post now has more than twice as many words as the majority's per curiam opinion.