Sunday, October 05, 2008

CAAF flips Phillippe -- again

I'm horribly confused. In United States v. Phillippe, 63 M.J. 307 (C.A.A.F. 2006), CAAF knocked down a three-year UA to a 49-day UA. CAAF ordered that the record be "remand[ed] to the United States Army Court of Criminal Appeals for reassessment under Sales, 22 M.J. at 307-08, or a rehearing may be ordered if appropriate." Id. at 312. When the case went back to ACCA, in an opinion available here, it concluded that "we cannot be reasonably certain of what sentence might have been adjudged and approved for a forty-nine day absence." United States v. Phillippe, No. ARMY 20040616, slip op. at 1 (A. Ct. Crim. App. Sept. 11, 2006). ACCA set aside Private Phillipe's sentence and returned the record to the CA for a "rehearing on the remaining period of absence without leave, if practical, and the sentence." Id., slip op. at 2. The case then drops off the radar. I can't find anything on the Web telling me what happened on remand to the CA or what happened at ACCA when the case returned to that court. But last Tuesday, CAAF set aside whatever ACCA did in a summary disposition that granted review of the following issue: "WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION IN REASSESSING APPELLANT'S SENTENCE, HAVING ALREADY CONCEDED THAT IT COULD NOT BE REASONABLY CERTAIN WHAT SENTENCE MIGHT BE IMPOSED AT THE TRIAL LEVEL." United States v. Phillippe, __ M.J. ___, No. 05-0674/AR (C.A.A.F. Sept. 30, 2008). CAAF summarily concluded "that the Court of Criminal Appeals abused its discretion in reassessing Appellant's sentence." Id. CAAF reversed ACCA as to the sentence and kicked the case back to the Army JAG.

What could ACCA possibly have done in its third look at the case that resulted in that outcome? Army Lurker, if you're still out there, could you please explain this one?

1 comment:

Anonymous said...

I think ACCA found an error at the rehearing and then tried to cure the error by doing thier own sentence re-assessment (I believe without changing the new sentence). An on-the-ball appellate counsel caught why ACCA couldn't do that in this case, as explained in the original post.