When convicted at court-martial, a defendant becomes the Appellant. The Appellant has rights regarding this outcome in their case. Before addressing appellate rights, appellants should know that there is a new right allowing the government to appeal the Appellant’s sentence if it violates the law or is “plainly unreasonable.”  The military judge cannot increase the Appellant’s ruling. Still, the government may file such an appeal within 60 days of entry of judgment. It may only do so if each offense is charged as occurring after 1 January 2019. The following article should help inform the reader about the Air Force Court-Martial Appeals Process.

What comes first in the Air Force Court-Martial Appeals Process after a Court-Martial?

Many cases may be reviewed by the Air Force Court of Criminal Appeals (AFCCA). The steps for getting a case reviewed on appeal depend on the sentence. Judges may discuss the specific rules for a case after the Appellant is sentenced. ·The Article that applies to this is Article 66(b), UCMJ; R.C.M. 1203.

• Automatic Review: The Air Force Court-Martial Appeals Process means the Appellants  case will be automatically reviewed by the AFCCA if the judgment includes either (1) a bad conduct discharge, dishonorable discharge, or dismissal or (2) confinement for two years or more and the Appellant does not waive or withdraw from appellate review.

• Requests for Review: If the conditions for the above automatic appeals are not met, the Appellant may choose to file an appeal with the AFCCA. Defendants should check with an experienced defense attorney to see if their case meets the qualifications for appeal.

• Waiver, Withdrawal, and Declining to Make a Request: If the Appellant decides to waive or withdraw from appellate review, that decision generally cannot be reversed. Suppose the Appellant chooses not to file a timely appeal when the appeal is not automatic. In that case, that decision cannot generally be reversed.
• What AFCCA looks for in an appeal: The AFCCA looks for depends on the offenses of which the Appellant was convicted. Suppose the Appellant was convicted of any offense before 3 January 2020. In that case, the AFCCA looks at (1) whether there was legal error, which basically asks whether the law was applied correctly to the case, (2) factual sufficiency, which basically asks the AFCCA to review the evidence in the Appellant’s case to see if the AFCCA is convinced of the Appellant’s guilt beyond a reasonable doubt, and (3) sentence appropriateness.

What if a case is not automatically reviewed by AFCCA?

Cases that are not reviewed by the AFCCA will be reviewed by The Judge Advocate General. These circumstances apply as part of the Air Force Court-Martial Appeals Process if:

• Appellant withdrew or waived their right to an automatic appeal by the AFCCA
• Appellant did not qualify for an automatic appeal to the AFCCA
• The judgment includes a sentence of six months or less of confinement and lacks a bad conduct discharge, dishonorable discharge, or dismissal.

There are also issues of timeliness and appellant notification regarding whether a case merits appeal to TJAG. Appellants should discuss their case with an experienced appellate attorney.

• Summary Courts: If the Appellant is convicted at a summary court, they may appeal to the Judge Advocate General. After the TJAG review, the Appellant may apply for review of the TJAG’s decision to the AFCCA.

Can the Appellant ask for relief or for the sentence to be set aside?

Suppose the Appellant’s case is reviewed by The Judge Advocate General. In that case, the Appellant can ask that the findings and sentence be modified or set aside. Relief is granted “on the grounds of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence.” (869. Article 69. Review in the Office of the Judge Advocate General – UCMJ – Uniform Code of Military Justice – Military Law.) The application for the Air Force Court-Martial Appeals Process must be filed within one year of The Judge Advocate General’s review under Article 65, UCMJ. Still, this deadline may be extended to three years from completion for good cause.

What happens if the Appellant’s case is not successful at AFCCA?

United States Court of Appeals for the Armed Forces (Article 67, UCMJ; R.C.M. 1204): If the Appellant’s appeal to the AFCCA is unsuccessful or the Appellant wants additional relief, they can seek to have their case reviewed by the U.S. Court of Appeals for the Armed Forces (CAAF) under Article 67(a), UCMJ, and R.C.M. 1205. The CAAF is the military’s highest appeals court and reviews cases from all service branches. Unlike the AFCCA, however, the CAAF is a discretionary court that does not automatically review cases unless they include a death sentence or The Judge Advocate General certifies the case for review. Appellants have 60 days from the date of the AFCCA’s decision to either file an appeal to the CAAF or have The Judge Advocate General certify their case for review.

What if the Appellant’s case is not successful at CAAF?

The Supreme Court of the United States (SCOTUS) may also review the Appellant’s case under R.C.M. 1205 and Article 67a of the UCMJ. Like the CAAF, the SCOTUS is a discretionary court that does not have to review the Appellant’s case. The Appellant’s appellate attorney can provide them with more information about petitioning the SCOTUS. Article 67a, UCMJ; R.C.M. 1205

What if an Appellant is still on active duty but not in confinement during the appeal?

While the Appellant’s case is being reviewed on appeal, and the Appellant is not in confinement, they will generally be placed on involuntary excess leave pending the outcome of their case on appeal. The Appellant must inform their appellate counsel of their whereabouts and provide up-to-date contact information, including a working telephone number and personal (not military) email address. While on excess leave, the Appellant can keep a military ID card and retain MWR privileges, including health care and commissary access. However, they will not receive any pay.

What rights does the Appellant have?

The Appellant has a due process right under the United States Constitution to speedy appellate review. Under the law in effect for cases referred to trial before l January 2019, there was a presumption of an unreasonable delay when appellate review was not completed. A decision was not rendered within 18 months of docketing the case before the AFCCA. This presumption appears unchanged for cases referred to trial on or after l January 2019. Because post-trial processing has changed substantially with the changes in the law, this presumption may no longer apply, and a new presumption has yet to be established by appellate courts. Regardless, one of the issues appellate courts look at to determine whether a delay warrants relief is whether the Appellant asserted their right to a timely review of your case. In some cases, there may be reasons why the Appellant would not want a quick and timely review. As a result, it is essential that any appellant consult with their defense counsel before determining whether asserting their right to a timely review of their case is in their best interest.

Can the Appellant request a new trial?

The Appellant has the right to petition for a new trial under Article 73, UCMJ, under more limited circumstances than Article 69, UCMJ, application. A petition for a new trial must be based on either fraud on the court or newly discovered evidence. It must be made within three years after judgment entry and submitted to The Judge Advocate General. If the Appellant fails to meet this deadline, regardless of the reason, they waive your right to petition for a new trial.

If you have been convicted at an Air Force Court-Martial and want to understand the appeals process for your case, call us at 757-504-2815 or write to us here today to consult with our experienced appellate attorney.