                       UNITED STATES, Appellant

                                     v.

                       Jeffrey M. MILLER, Seaman
                      U.S. Coast Guard, Appellee

                               No. 06-5002
                       Crim. App. No. 005-69-01

       United States Court of Appeals for the Armed Forces

                        Argued February 8, 2006

                        Decided March 14, 2006

EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.


                                  Counsel

For Appellant: Lieutenant Commander John S. Luce Jr. (argued);
Commander Jeffrey C. Good (on brief).

For Appellee:   Lieutenant Commander Nancy J. Truax (argued).

Amicus Curiae: Lieutenant Commander Jason S. Grover, JAGC, USN
(argued); Captain Pamela A. Holden, JAGC, USN, for the United
States Navy-Marine Corps Appellate Defense Division (on brief).

Amicus Curiae: Kathleen A. Duignan, Esq. (argued); Eugene R.
Fidell, Esq., and Stephen A. Saltzburg, Esq., for the National
Institute of Military Justice (on brief).


Military Judge:    Michael E. Tousley




        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Miller, No. 06-5002/CG


    Judge EFFRON delivered the opinion of the Court.

    On November 21, 2003, at a special court-martial composed of

a military judge sitting alone, Appellee was convicted, pursuant

to his pleas, of various controlled substances offenses, in

violation of Articles 112(a) and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 912(a), 934 (2000).   He was

sentenced to a bad-conduct discharge and reduction to E-1.

    As we describe in more detail below, this case involves

Appellee’s interest in waiving appellate review of his case.    We

briefly describe the procedures for review of a court-martial in

which the sentence includes a punitive discharge and then turn

to the specific circumstances of the present appeal.



          I.   WAIVER AND WITHDRAWAL OF APPELLATE REVIEW

    Under Article 60(c), UCMJ, 10 U.S.C. § 860(c) (2000), the

sentence in every court-martial case is submitted to the

convening authority for approval.    If the sentence approved by

the convening authority includes capital punishment, a punitive

discharge, or confinement for one year or more, the UCMJ

provides for mandatory review in the Court of Criminal Appeals.

Article 66(b), UCMJ, 10 U.S.C. § 866(b) (2000).    The court has

an affirmative obligation to ensure that the findings and

sentence in each such case are “correct in law and fact . . .




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United States v. Miller, No. 06-5002/CG


and should be approved.”   Article 66(c), UCMJ, 10 U.S.C. §

866(c) (2000).

    Congress has provided a narrow window in which an accused

may waive appellate review in non-capital cases.   Under Article

61(a), UCMJ, 10 U.S.C. § 861(a) (2000):

          the accused may file with the convening
          authority a statement expressly waiving the
          right of the accused to such review. Such
          waiver shall be signed by the accused and
          defense counsel and must be filed within 10
          days after the action [on the sentence] is
          served on the accused or on defense counsel.
          The convening authority or other person
          taking such action may extend the period for
          such filing by not more than 30 days.

Because a waiver may not be filed prior to the convening

authority’s action, a premature filing is invalid, and appellate

review will proceed.   See United States v. Hernandez, 33 M.J.

145 (C.M.A. 1991).

     If the accused has waived review by the Court of Criminal

Appeals, the convening authority must refer the case for review

by a judge advocate under Article 64, UCMJ, 10 U.S.C. § 864

(2000), and Rule for Courts-Martial (R.C.M.) 1112.   In specified

circumstances, including a case in which a punitive discharge

has been adjudged, the case is then submitted for further action

by an officer exercising general court-martial authority under

Article 64(b) and R.C.M. 1112(e).    See Article 71(c)(2), UCMJ,

10 U.S.C. § 871(c)(2) (2000).   Such cases also may be reviewed



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United States v. Miller, No. 06-5002/CG


by the Office of the Judge Advocate General under Article 69(b),

UCMJ, 10 U.S.C. § 869(b) (2000).

     If review by the Court of Criminal Appeals has not been

waived, “the accused may withdraw an appeal at any time” in a

non-capital case.   Article 61(b), UCMJ, 10 U.S.C. § 861(b)

(2000).   The discretion to grant or deny a motion to withdraw an

appeal is vested in the appellate courts.   See Hernandez, 33

M.J. at 149.



                       II. APPELLEE’S WAIVER

    On November 21, 2003, the day that the court-martial

adjudged his sentence, Appellee advised his defense counsel that

he wanted to waive his appellate rights, and the defense counsel

provided him with a standard waiver form.   Several months later,

on February 23, 2004, Appellee signed the waiver form and mailed

it to his defense counsel.   See R.C.M. 1110(f).   Defense counsel

added his signature and submitted the form to the convening

authority on March 5, 2004, prior to the convening authority’s

action on the case.   Because a waiver may not be filed prior to

the convening authority’s action, the filing was treated as

premature.

    On June 18, 2004, the convening authority approved the

sentence as adjudged, and this action was served on defense

counsel on July 8, 2004.   The next day, defense counsel


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United States v. Miller, No. 06-5002/CG


resubmitted the previously signed waiver of appellate rights.

The waiver was accompanied by a statement from defense counsel

noting that Appellee had been advised of his appellate rights as

well as the effect of a waiver and that Appellee “has reiterated

his desire to waive his appellate rights.”

    The convening authority accepted the waiver.    In view of the

waiver, the convening authority transmitted the record of trial

for review by a judge advocate under Article 64(a).   The judge

advocate recommended that the general court-martial convening

authority approve the findings and sentence.    On November 4,

2004, the general court-martial convening authority approved the

findings and the sentence that the special court-martial

convening authority had approved.    See R.C.M. 1112(e), (f);

R.C.M. 1113(b).

    Pursuant to applicable Coast Guard practice, the record was

forwarded to the Commandant for final action.   See Dep’t of

Transportation, Coast Guard Military Justice Manual, COMDTINST

M5810.1D, para. 5.F.3.b. (Aug. 2000).   The Commandant’s office,

in turn, sent the case to the chief judge of the lower court to

conduct a review under Article 69(b) for the Judge Advocate

General.   The chief judge, however, noted the issue of the

timeliness of the waiver as a predicate question to be answered

prior to any further review, and he returned the case to the

Judge Advocate General “for resolution of the issue.”   On March


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United States v. Miller, No. 06-5002/CG


18, 2005, the Judge Advocate General followed the recommendation

of his legal counsel to “[p]resume that the waiver is effective,

but refer [the] case to the Coast Guard Court of Criminal

Appeals pursuant to UCMJ Article 69(d).”

    Before the Court of Criminal Appeals, Appellee again sought

to terminate appellate review.   He asserted that the waiver

filed after the convening authority’s action was valid, and he

submitted an affidavit setting forth the basis for concluding

that he had exercised an informed waiver of his appellate

rights.   Appellee also filed a withdrawal of appellate review in

the event that the court did not accept his waiver.

    In a divided opinion, the Court of Criminal Appeals rejected

Appellee’s position on waiver and concluded that the waiver

filed with the convening authority was not valid.    United States

v. Miller, 61 M.J. 827 (C.G. Ct. Crim. App. 2005).    The court

also determined that the case should then be considered as a

normal, mandatory review of a punitive discharge case by the

Court of Criminal Appeals under Article 66(c) and granted

appellee’s motion to withdraw the appeal pursuant to Article

61(a).    The court returned the record of trial to the Judge

Advocate General to finalize action in the case.




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United States v. Miller, No. 06-5002/CG


                     III. THE CERTIFIED ISSUES

    On November 17, 2005, the Judge Advocate General of the

United States Coast Guard certified the following issues for

review by our Court under Article 67(a)(2), 10 U.S.C. §

867(a)(2) (2000):

          I.    DID THE COAST GUARD COURT OF CRIMINAL
                APPEALS, AFTER CONCLUDING THAT
                [APPELLEE]’S WAIVER OF APPELLATE REVIEW
                WAS INVALID, ERR BY CONDUCTING A SUA
                SPONTE REVIEW UNDER ARTICLE 66(b),
                WHERE THE JUDGE ADVOCATE GENERAL
                CERTIFIED THE CASE TO THE COURT
                PURSUANT TO UCMJ ARTICLE 69(d).

          II.   DID THE COAST GUARD COURT OF CRIMINAL
                APPEALS ERR BY CONCLUDING THAT RCM
                1110(f), WHICH EXPRESSLY PERMITS AN
                ACCUSED TO SIGN A WAIVER OF APPELLATE
                REVIEW “AT ANY TIME AFTER THE SENTENCE
                IS ANNOUNCED,” IS CONTRARY TO UCMJ
                ARTICLE 61.

          III. TO THE EXTENT THAT UCMJ ARTICLE 61 IS
               AMBIGUOUS, AND GIVEN THAT CONGRESS HAS
               EXPRESSLY GRANTED THE PRESIDENT RULE-
               MAKING AUTHORITY IN THE FIELD OF
               MILITARY JUSTICE, MUST AN ARTICLE I
               COURT DEFER TO THE PRESIDENT’S
               REASONABLE INTERPRETATION OF THAT
               ARTICLE.


     The judges of the Court of Criminal Appeals issued two

thoughtful opinions in the present case.   The majority focused

on the fact that Appellee signed the waiver prior to the

inception of the statutory period in which a waiver may be

filed, even though it was filed subsequently during the



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United States v. Miller, No. 06-5002/CG


appropriate time period.   Miller, 61 M.J. at 828.    Relying on

our opinions concerning premature filings, the majority

emphasized the importance of ensuring that the decision by an

accused to waive an appeal is made only after being fully

informed of the circumstances and consequences, including the

convening authority’s action.   Id. at 829 (citing Hernandez, 33

M.J. at 147); United States v. Smith, 44 M.J. 387, 392 (C.A.A.F.

1996); United States v. Walker, 34 M.J. 317, 318 (C.M.A. 1992);

United States v. Smith, 34 M.J. 247, 249 (C.M.A. 1992).

     The majority noted that at the time of Hernandez, the

Manual for Courts-Martial did not address the time period in

which the waiver could be signed and that the President

subsequently amended R.C.M. 1110(f)(1) to provide:    “The accused

may sign a waiver of appellate review at any time after the

sentence is announced.”    Miller, 61 M.J. at 828.   In the

majority’s view, the amendment was invalid because it was

inconsistent with the purpose of Article 61, as reflected in

this Court’s decisions.    Id. at 830.   The majority contrasted

the uncertainty of a document signed prior to the convening

authority’s action with the confidence that they placed in

Appellee’s decision to withdraw the case from review at the

Court of Criminal Appeals.   Id.

     The minority opinion at the Court of Criminal Appeals

focused on the facts and circumstances concerning the filing of


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United States v. Miller, No. 06-5002/CG


the waiver after the convening authority acted.   Id. at 836

(Felicetti, J., concurring in part and dissenting in part,

joined by Kantor, J.).   The minority agreed with much of the

analysis offered by the majority.    In particular, the minority

emphasized the importance of demonstrating that the accused made

a provident decision to waive appellate rights after, not

before, the convening authority’s action.   Id. at 835 (citing

Hernandez, 33 M.J. at 148-49).   The minority also agreed that

“the preferred way to demonstrate a provident filing decision is

for the accused to sign the waiver form within 10 days of

receipt of the convening authority’s action.”   Id.   In that

regard, the minority stated that the record must “show that the

accused made an informed and voluntary decision after a ‘cooling

off’ period.”   Id. at 835 (citing Hernandez, 33 M.J. at 148).

     The narrow point of disagreement between the two opinions

involved the question of providency of the waiver decision.     The

minority opinion concluded that the record “may sometimes show

that the accused’s decision to file (execute) a previously

signed waiver form was, in fact, provident.”    Id. at 835.   In

reaching this conclusion, the minority noted that the text of

the statute addressed both signing and filing but required only

that the filing take place after the convening authority’s

action.   The minority provided a detailed description of the

legislative history reflecting the separate treatment of signing


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United States v. Miller, No. 06-5002/CG

and filing.   Id. at 834.   The minority also cited the

legislative history for the proposition that Congress focused

its concern about timing on the filing rather than the signing

of the waiver form.   Id. at 834-35.

     The minority concluded that a waiver document may be signed

before the convening authority’s action so long as the

providency of the waiver is “demonstrated by a serious,

rational, and informed discussion between the accused and his or

her defense counsel after the [convening authority’s] action,

but before filing the waiver . . . .    This informed discussion,

of course, must be documented in the record.”    Id. at 836

(citation omitted).   The minority also concluded that the record

of the present case demonstrated the requisite showing of

providency.   Id.

     We agree with the analysis offered in the minority opinion.

The preferred method of demonstrating a provident waiver is a

document signed after the convening authority’s action, but a

document signed beforehand may be used so long as the record

demonstrates a serious, rational, and informed discussion

between the accused and defense counsel after the convening

authority’s action, but before the filing of the waiver.      We

also agree that the record in this case provides the requisite

showing of providency.   See id.    Because Appellee’s original




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waiver was valid, we answer the second certified question in the

affirmative.

     Appellate review of the waiver was appropriate to ensure

that the waiver was provident.   Now that the issue of providency

has been resolved, no further review is required, and the case

should be finalized.   In that regard, the first certified issue,

regarding the appellate relationship between Articles 66(b) and

69(d) is moot, and we decline to address it.

     The third certified issue presumes reliance on R.C.M.

1110(f) for the interpretation of Article 61.   We have concluded

that the text of Article 61 does not preclude signing a waiver

at any time so long as there is a provident waiver decision

after the convening authority’s action.    Because our analysis is

based on the text of Article 61, our conclusion would be the

same even if the President had not expressly authorized an early

signing under R.C.M. 1110(f).    Accordingly, we view the third

certified issue as raising a question not pertinent to our

decision, and we decline to address it.

                          IV. CONCLUSION

     The decision of the United States Coast Guard Court of

Criminal Appeals is set aside.   The record is returned to the

Judge Advocate General of the Coast Guard for final disposition

of the record under Article 65, UCMJ, 10 U.S.C. § 865 (2000).




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