2008 edition - Fort Sam Houston - U.S. Army

erence to the percentage of agreement or an affirmation that
voting was by secret written ballot has been deleted. Article 53
does not require such an announcement, and when instructions
incorporating such matters are given, the court-martial “is presumed
to have complied with the instructions given them by the
judge.” United States v. Ricketts, 1 M.J.. 78, 82 (C.M.A. 1975).
See United States v. Jenkins, 12 M.J. 222 (C.M.A. 1982). Cf.
United States v. Hendon, 6 M.J. 171, 173–74 (C.M.A. 1979).
(c) Polling prohibited. See Analysis, Rule 923(e).
Rule 1008 Impeachment of sentence
This rule is based on Mil. R. Evid. 606(b) and United States
v. West, 23 U.S.C.M.A. 77, 48 C.M.R. 548 (1974). See United
States v. Bishop, 11 M.J. 7 (C.M.A. 1981).
Rule 1009 Reconsideration of sentence
Introduction. Except as noted below, this rule and discussion
are based on Articles 52(c) and 62 and paragraphs 76 c and d of
MCM, 1969 (Rev.).
(c) Initiation of reconsideration. Subsection (2)(A) was added to
remedy the situation addressed in United States v. Taylor, 9 M.J.
848 (N.C.M.R. 1980). It is intended that the military judge have
the authority to reduce a sentence imposed by that judge based on
changed circumstances, as long as the case remained under that
j u d g e ’ s j u r i s d i c t i o n . S i n c e t h i s a c t i o n “ u n d e r c u t s t h e r e v i e w
powers” (Id. at 850) only to the extent that it reduces the upper
limits available to reviewing authorities, there is no reason to
prevent the military judge from considering additional matters
before finalizing the sentence with authentication. Furthermore,
granting the military judge power to reconsider an announced
sentence recognizes that when sitting without members, the judge
performs the same functions as the members. See Article 16.
The procedures in subsection (2)(B) are necessary corollaries
of those set out in the fifth and sixth sentences of paragraph 76 c,
MCM, 1969 (Rev.) adapted to the rules for reconsideration. This
clarifies that a formal vote to reconsider is necessary when reconsideration
is initiated by the military judge. MCM, 1969 (Rev.)
was unclear in this regard. See United States v. King, 13 M.J. 838
(A.C.M.R.), pet. denied, 14 M.J. 232 (1982).
Subsection (3) is based on Article 62(b) and United States v.
Jones, 3 M.J. 348 (C.M.A. 1977).
(d) Procedure with members. Subsection (1) is based on the general
requirement for instructions on voting procedure. See United
States v. Johnson, 18 U.S.C.M.A. 436, 40 C.M.R. 148 (1969). It
applies whether reconsideration is initiated by the military judge
or a member, since R.C.M. 1006(d)(3)(A) does not permit further
voting after a sentence is adopted and there is no authority for the
military judge to suspend that provision.
1995 Amendment: This rule was changed to prevent a sentencing
authority from reconsidering a sentence announced in open
session. Subsection (b) was amended to allow reconsideration if
the sentence was less than the mandatory maximum prescribed
for the offense or the sentence exceeds the maximum permissible
punishment for the offense or the jurisdictional limitation of the
court-martial. Subsection (c) is new and provides for the military
judge to clarify an announced sentence that is ambiguous. Subsection
(d) provides for the convening authority to exercise dis-
ANALYSIS
App. 21, R.C.M. 1101(B)
c r e t i o n a r y a u t h o r i t y t o r e t u r n a n a m b i g u o u s s e n t e n c e f o r
clarification, or take action consistent with R.C.M. 1107.
2002 Amendment: Subsection (e)(3)(B)(ii) was amended as a
result of the enactment of Article 56a, UCMJ, in section 581 of
the National Defense Authorization Act for Fiscal Year 1998,
Pub. L. No. 105-85, 111 Stat. 1629, 1759 (1997).
Rule 1010 Advice concerning post-trial and
appellate rights
This rule is based on S.Rep. No. 53, 98th Cong., 1st Sess. 18
(1983). See also Articles 60, 61, 64, 66, 67, and 69. It is similar
t o F e d . R . C r i m . P . 3 2 ( a ) ( 2 ) , b u t i s b r o a d e r i n t h a t i t a p p l i e s
whether or not the accused pleaded guilty. This is because the
accused’s post-trial and appellate rights are the same, regardless
of the pleas, and because the powers of the convening authority
and the Court of Criminal Appeals to reduce the sentence are
important even if the accused has pleaded guilty.
1986 Amendment: This rule was changed to delete subsection-
(b) which required an inquiry by the military judge. The Senate
Report addresses only advice; inquiry to determine the accused’s
understanding is deemed unnecessary in view of the defense
counsel’s responsibility in this area.
1991 Amendment: This rule was changed to place the responsibility
for informing the accused of post-trial and appellate rights
on the defense counsel rather than the military judge. Counsel is
better suited to give this advisement in an atmosphere in which
the accused is more likely to comprehend the complexities of the
rights.
Rule 1011 Adjournment
This rule is based on paragraph 77 b of MCM, 1969 (Rev.).
CHAPTER XI. POST-TRIAL PROCEDURE
Rule 1101 Report of result of trial; post-trial
restraint; deferment of confinement
(A) Report of the result of trial. This subsection is based on the
first two sentences of paragraph 44 e of MCM, 1969 (Rev.).
(B) Post-trial confinement. Subsection (1) is based on Article
57(b) and on the last sentence of paragraph 44 e of MCM, 1969
(Rev.). Subsection (1) makes clear that confinement is authorized
when death is adjudged, even if confinement is not also adjudged.
See United States v. Matthews, 13 M.J. 501 (A.C.M.R.), rev’d on
other grounds, 16 M.J. 354 (C.M.A. 1983). See also R.C.M.
1004(e) and Analysis.
Subsection (2) is based on Article 57 and on paragraph 21 d of
MCM, 1969 (Rev.). The person who orders the accused into
confinement need not be the convening authority. See Reed v.
Ohman, 19 U.S.C.M.A. 110, 41 C.M.R. 110 (1969); Levy v.
Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399 (1967). The convening
authority may withhold such authority from subordinates.
Article 57(b) provides that a sentence to confinement begins to
run as soon as the sentence is adjudged. The mechanism for an
accused to seek release from confinement pending appellate review
is to request deferment of confinement under Article 57(d).
See S.Rep. No. 1601, 90th Cong., 2d Sess. 13-14 (1968); Pearson
v. Cox, 10 M.J. 317 (C.M.A. 1981). See subsection (c) of this
rule.
The purpose of subsection (2) is to provide a prompt, conven-
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