Case Note: United States v. Bauerbach: Has the Army Court of Criminal Appeals put 'Collazo Relief' Beyond Review?

• Author: Major Timothy C. Macdonnell
• Pages: 05

154 MILITARY LAW REVIEW [Vol. 169

CASE NOTE: UNITED STATES V. BAUERBACH: HAS THE ARMY COURT OF CRIMINAL APPEALS PUT "COLLAZO

RELIEF" BEYOND REVIEW?

MAJOR TIMOTHY C. MACDONNELL1

1. Introduction

   Ex cathedra, meaning "from the chair," is "a theological term which signifies authoritative teaching,"2 and is used to describe the Pope's authority to create irreformable dogma for the Catholic Church.3 Once the Pope exercises this rarely used power, his decision cannot be overturned. The Army Court of Criminal Appeals (Army Court) claims, with some support, a similar power to place their decisions beyond review.4 According to the Army Court, its decisions are unreviewable when it exercises its sentence appropriateness authority under Article 66(c) of the Uniform Code of Military Justice (UCMJ).5 In United States v. Bauerbach, the Army Court invoked this authority when it granted relief for non-prejudicial post-trial delay, known as "Collazo relief."6 Thus, according to the Army Court, "Collazo relief" is beyond review by the Court of Appeals for the Armed Forces (CAAF).

   This note examines the Bauerbach opinion and its ramifications, focusing on three questions raised by Bauerbach and "Collazo relief" in general. First, was the Army Court correct when it stated that "Collazo

   relief" has always been a matter of sentence appropriateness? Second, did the Army Court correctly conclude that Bauerbach and "Collazo relief" are beyond review? Third, was the Army Court's use of its sentence appropriateness authority to create "Collazo relief" consistent with Congress's intent for how the Courts of Criminal Appeal (or "service courts") should use this unique authority?

2. United States v. Collazo: The Birth of a New Method of Addressing Undue Post-Trial Delay

   Last year, in United States v. Collazo,7 the Army Court of Criminal Appeals took the bold and controversial step of granting sentence relief for a non-prejudicial post-trial delay. Since that 2000 decision, the Army Court has granted "Collazo relief" in several memorandum opinions and four published opinions.8 The court has used these opinions to pressure staff judge advocates (SJA) and chiefs of criminal law to devote greater attention to post-trial processing. In Collazo, the court stated that the reason there are so many post-trial errors and records involving excessive delay is because "there are no meaningful sanctions for tardy or sloppy work."9 The court's creation of "Collazo relief" was obviously an effort to provide a meaningful sanction.

   One problem with Collazo, however, was the court's failure to state clearly its legal authority to reduce a sentence for post-trial delay absent prejudicial error. The caselaw regarding undue post-trial delay seemed to

   require prejudice before a court could grant relief.10 In United States v. Bauerbach, 11 the Army Court removed any confusion regarding its legal authority to grant "Collazo relief." The court devoted almost the entire opinion to explaining that its authority to grant "Collazo relief" came from the court's Article 66(c) sentence appropriateness power.

   In Bauerbach, the appellant pled guilty to one specification of wrongful use of marijuana and was sentenced to three months confinement, forfeiture of all pay and allowances, and a bad-conduct discharge.12 The only issue raised by appellate defense counsel was whether Private Bauerbach was entitled to "Collazo relief," as it took 288 days to process the 385-page record of trial and complete the post-trial process. Appellate defense counsel did not allege any prejudice from the post-trial delay, only that the post-trial process took too long.13

   The government argued that the Army Court was not permitted to grant relief from non-prejudicial post-trial delay, because to do so would violate Article 59(a), UCMJ.14 The court disagreed, stating the govern-ment's argument "suggests a misunderstanding of the court's responsibility and authority to determine sentence appropriateness under Article 66(c), UCMJ."15 The court went on to discuss the origins of Article 66, the interplay between Articles 59 and 66, and its holding in Collazo. The gist of this discussion was that when the Army Court grants "Collazo relief," it does so under its sentence appropriateness authority.

   The significance of this holding is considerable. For the first time, the Army Court expressly declared that its Article 66 sentence appropriateness authority may be used to grant "Collazo relief." If the court was properly exercising this authority, its decision, and "Collazo relief" in general, may be beyond review.16 Finally, Bauerbach and all the "Collazo relief"

   cases represent an aggressive use of sentence appropriateness authority to resolve undue post-trial delay, an issue traditionally addressed as legal error.

3. Has "Collazo Relief" Always Been a Matter of Sentence Appropriateness?

   The first section of this note addresses whether the Army Court was correct when it stated in Bauerbach that "Collazo relief" has always been a matter of sentence appropriateness. This statement's potential significance has already been discussed, but not its accuracy. Despite the Army Court's conclusion to the contrary, it is unlikely the Collazo court had conclusively resolved that sentence appropriateness was its basis for granting relief. Three observations about the Court's opinion in Collazo, as well as subsequent Army Court opinions, support this proposition. First, the Collazo opinion lacks any discussion clearly identifying it as a case where the Army Court was exercising its sentence appropriateness authority. Second, based on an examination of the Collazo record, it is unlikely the court would have concluded that Collazo received an unjust sentence, despite the government's undue post-trial processing delay. Third, in two later memorandum opinions, the Army Court dealt with sentence appropriateness and "Collazo relief" separately.17 In one case, the court even stated, "We disagree that the appellant's sentence was inappropriately severe, but find that the post-trial processing of this case warrants some relief."18

   A. The Collazo Court's Failure to Discuss Sentence Appropriateness

   The Army Court, like all service courts, derives its authority to act from UCMJ Article 66(c). In accordance with Article 66(c), the Army Court "may affirm only such findings of guilt and the sentence or such part or amount of the sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved." Based on this la

   guage, the Army Court can affect sentences through one of three powers. The court described these powers in Bauerbach as follows:

   The three components of our Article 66(c), UCMJ, authority are commonly referred to as legal sufficiency ("correct in law"), factual sufficiency ("correct in . . . fact"), and sentence appropriateness ("may affirm only . . . such part or amount of the sentence, as it . . . determines, on the basis of the entire record, should be approved").19

   In Collazo, the court granted relief for undue post-trial delay by exercising its "broad power to moot claims of prejudice by 'affirming only such findings of guilt and the sentence or such part or amount of the sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.'"20 Thus, the Collazo court refused to state which of three components of Article 66(c) it was exercising. Additionally, in the five memorandum opinions following Collazo, the court did not state which of the three components of Article 66(c) it was exercising when granting "Collazo relief".

   In addition to the court's failure to state expressly that it was exercising sentence appropriateness authority, the court failed to discuss or apply the standard of review for granting sentence appropriateness relief. The case law regarding sentence appropriateness consistently describes the service courts' authority as the power to ensure that justice is done and that the accused receives a just punishment.21 In United States v. Healy, the Court of Military Appeals (CMA) stated, "Sentence appropriateness involves the judicial function of assuring that justice is done and that the accused gets the punishment he deserves."22 The court must make its sentence appropriateness determination on the basis of the entire record.23

   Although the Collazo court discussed the dictates of "fundamental fairness" regarding the government's diligence in the post-trial process,24 the

   court never concluded-based on the entire record-that Private Collazo

   did not get the punishment he deserved.

   A seminal case describing factors to consider when making sentence appropriateness determinations is United States v. Cavallaro.25 In Cavallaro, the CMA found the Navy Board of Review was confused about the scope of its sentence appropriateness authority and responsibility.26 The CMA returned the case to the Board of Review because the Board had affirmed the accused's sentence, and also recommended that The Judge Advocate General exercise clemency. The CMA concluded there was at least an appearance that "boards of review do not understand fully the factors they may consider in determining the appropriateness of [a] sentence."27 The CMA went on to state,

   When reconsidering the sentence, the board of review should consider the appropriateness of the sentence in light of the entire record before it, giving due consideration to the factors set forth in paragraph 76a and other parts of the Manual and any other factors in the record which tend to establish a fair and just sentence.28

   The CMA referred to paragraph 76a of the 1951 Manual for Courts-Martial, which described the matters a panel or judge were required to consider when sentencing a convicted soldier. These factors included: aggravation evidence, character of the soldier's service, extenuation evidence, prior convictions, and the needs of good order and discipline.29

   ...