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Court of Appeals reviews sentence of court-martialed national guard member

State v. Jesse T. Riemer, 2017 WI App 48; case activity (including briefs)

In what appears to be the first case of its kind, the court of appeals addresses the standard for reviewing the sentence imposed on a member of the Wisconsin National Guard after he was convicted of various offenses. Concluding it should apply the same standard as civilian criminal cases—erroneous exercise of discretion—it affirms the military judge’s sentence.

The Uniform Code of Military Justice applies to members of the armed services while serving on active duty, but members of state National Guard units who are not serving in federal active duty status are under the control of the states and therefore subject to the military justice systems of the states. (¶10). States may provide court-martial jurisdiction for their National Guard members, and in 2008 Wisconsin did just that, enacting a Wisconsin Code of Military Justice in ch. 322. The Wisconsin code specifies that appeals from court-martial decisions are to District 4 of the court of appeals, § 322.0675. (¶11).

The Wisconsin code also says that it “shall be so construed as to effectuate its general purpose to make it uniform, so far as practical, with 10 USC ch. 47,” the federal UCMJ, § 322.143 (emphasis added). Under 10 U.S.C. § 866(c) a military appellate court independently determines the appropriateness of the sentence, so Riemer argues the court of appeals should use that standard to review his sentence, too. The court of appeals holds that is not “practical” because, unlike the civilians on the court of appeals, military judges acquire knowledge and experience from their service within the ranks to give them a basis for judging sentence appropriateness. Instead, the court concludes it will apply Wisconsin’s erroneous exercise of discretion standard, the one it knows and applies day-in and day-out. (¶¶12-28). Applying Wisconsin’s highly deferential standard makes it easy to affirm the sentence as an appropriate exercise of discretion (even if the judge’s explanation was “admittedly brief” (¶35)) and to reject Riemer’s arguments that the sentence was unduly harsh. (¶¶36-39).

Riemer also argues his due process rights were violated because the military judge’s statements during sentencing evidenced objective bias; the judge failed to fully consider all of the evidence presented to him at sentencing; and the judge assumed facts not supported by evidence available to the judge at sentencing. (¶2). Finding no differences between Wisconsin and federal military law when it comes to due process at sentencing, the court of appeals applies Wisconsin law (¶3) and finds no due process violations (¶¶40-54).

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