Q: Should an agreed-upon longer sentence be overturned on appeal?
Being accused of a crime in the military is serious and any service member in such a position should seek legal counsel from a skilled civilian court martial defense attorney. While the range of punishments upon conviction varies based upon the level of court martial proceeding and the seriousness of the charges, the possible punishments in a general court-martial –which is reserved for the most serious crimes– can include such things as forfeiture of pay, rank reduction, dishonorable discharge, confinement and even death.
What happens if you’re not satisfied with the outcome of your court-martial proceeding?
Fortunately, a court-martial appeals attorney may be able to get that unfavorable or harsh decision overturned or mitigated. But court-martial appeals can be an arduous, multi-step review process
In an effort to briefly summarize a complicated process, the appellate review process generally follows this succession of appeals:
- the original convening authority reviews the conviction and sentence for approval.
- if approved, the next step is either a review by
- (a) the Judge Advocate General (TJAG) for less serious charges or
- (b) a military Court of Criminal Appeals for more serious charges.
- an appeal to the Court of Appeals for the Armed Forces.
- the last resort is petitioning the US Supreme Court for review which is extremely rarely granted and is discretionary.
A submariner with an admitted “porn addiction” was court-martialed on child pornography charges. He reportedly admitted to taking an “indecent” videotape of his 15-year-old half-sister and possessing “about 1000 images and 20 videos depicting other child pornography”. He was sentenced to a rank reduction and 48 months confinement in the Miramar brig having “knowingly agreed to the lengthier sentence to seek treatment for sex and pornography addiction” available at Miramar. The treatment reportedly takes 48 months to complete.
Issues on appeal– including whether the sailor made an informed decision or whether the 4-year sentence was excessive– have been considered in earlier levels of the appeals process but so far have not resulted in any mitigation of the sentence imposed. The sailor’s appellate attorney reportedly claims his client is being punished for seeking help for his addiction because he would have likely “drawn a sentence of two years in prison–if he hadn’t asked to get help.”
Upholding the sailor’s original sentence at the Navy-Marine Corps Court of Criminal Appeals level, the court found:
- he knowingly agreed to the lengthier sentence
- he had adequate counsel when submitting a guilty plea
- he had admitted to possession of other child pornography.
The court also noted that the maximum sentences for charges faced could have been 15 years (five years for recording the video and up to 10 years for possession of other child pornography) and ruled that he failed to demonstrate his 4-year sentence was excessive. His attorney reportedly plans to appeal to the US Court of Appeals for the Armed Forces. If unsuccessful there, then he may petition the US Supreme Court to review the case.
If you have been or expect to be charged with a crime in the military, the skilled civilian military defense firm of Elkus, Sisson & Rosenstein can help you. We have the knowledge, experience, time and resources to aggressively defend you. Contact our office today for a free consultation.
From our offices in Denver and Colorado Springs, Colorado, we represent service members of all ranks in all branches, anywhere in the world.
