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In re General Court-Martial Case of Sergeant First Class Riemer

Court of Appeals of Wisconsin, District IV

June 15, 2017

In the General Court-Martial Case of Sergeant First Class Jesse T. Riemer, Wisconsin Army National Guard, Recruiting and Retention Battalion, Madison, Wisconsin:
v.
Jesse T. Riemer, Appellant. State of Wisconsin, Respondent,

         APPEAL from a conviction and order by a General Court-Martial: DAVID KLAUSER, Military Judge, and DONALD P. DUNBAR, Adjutant General. Affirmed.

          Before Kloppenburg, P. J., Lundsten and Blanchard, JJ.

          KLOPPENBURG, P.J.

         ¶1 At a general court-martial under the Wisconsin Code of Military Justice, WIS. STAT. ch. 322 (2015-2016), Sergeant First Class Jesse Riemer of the Wisconsin Army National Guard was convicted, pursuant to negotiated pleas made before a military judge, of various felony offenses involving Riemer's use of "his position as a [military] recruiter to engage in wrongful conduct with recruits and enlisted members of the [Wisconsin Army National Guard]."[1] Riemer was sentenced to thirty days' confinement and a bad-conduct discharge. The adjutant general approved the conviction and sentence. Riemer appealed to this court pursuant to WIS. STAT. § 322.0675. That statute provides that convictions by a general court-martial are appealed "to the Wisconsin court of appeals, District IV and, if necessary, to the Wisconsin Supreme Court."

         ¶2 Riemer challenges the sentence imposed by the military judge, arguing that the military judge erred in four respects: (1) the judge misused his discretion by imposing an unduly harsh and unreasonable sentence; (2) the judge's statements during sentencing evidenced objective bias in violation of Riemer's right to due process; (3) the judge violated Riemer's right to due process by failing to fully consider all of the evidence presented to him at sentencing; and (4) the judge violated Riemer's right to due process by assuming facts not supported by evidence available to the judge at sentencing.

         ¶3 Riemer argues that we should review his first issue-sentencing discretion-as would a military appellate court. That is, Riemer asserts that we should accord no deference to the sentencing judge and, rather, independently determine whether the sentence was appropriate. We reject that argument and apply the same deferential review we normally apply to sentencing. As to the remaining three issues, Riemer nominally asserts that we should review them as would a military appellate court, but Riemer does not suggest that such review differs from how we would normally review these due process issues. Indeed, Riemer directs us to Wisconsin due process case law on all three issues. If Wisconsin law differs from military law, or federal law generally, on these topics, the parties have not brought those differences to our attention. Accordingly, we follow the parties' lead and apply Wisconsin due process law to the last three issues. If there is an argument that our review of any of these three issues should be based on federal law, we leave that question for another day.

         ¶4 Applying our normal deferential standard of review, we conclude that the judge did not misuse his discretion. Looking to Wisconsin due process law, in keeping with the parties' arguments, we reject Riemer's remaining three due process arguments. Therefore, we affirm.

         BACKGROUND

         ¶5 At the times relevant to this action, Riemer was a recruiter for the Wisconsin Army National Guard and was subject to the Wisconsin Code of Military Justice set forth in chapter 322 of the Wisconsin Statutes. WIS. STAT. § 322.002(1). Riemer was charged with thirteen offenses based on statements given by a number of recently enlisted female soldiers.

         ¶6 A military hearing officer conducted a preliminary hearing on the charges under WIS. STAT. § 322.032. At the hearing, the female soldiers testified in detail about Riemer's behavior and its effect on them. Riemer's counsel cross-examined the soldiers. After the hearing, the charges were referred for trial by general court-martial before a military judge under WIS. STAT. §§ 322.033-.035. Prior to trial, the parties reached a plea agreement, and the military judge received Riemer's pleas and imposed sentence at a plea and sentencing hearing under WIS. STAT. § 322.039.

         ¶7 At the plea hearing, for each offense to which Riemer pleaded guilty, the military judge asked Riemer to tell the military judge why Riemer was guilty of the offense and "what happened." After hearing Riemer's responses, the military judge accepted Riemer's pleas and proceeded to sentencing. At sentencing, the government presented exhibits comprising Riemer's military personnel record, and Riemer presented exhibits comprising letters of support and records of and articles about his awards and achievements from both military and non-military contexts. Riemer also presented three witnesses: a fellow officer, Riemer's wife, and Riemer himself.

         ¶8 After deliberation, the military judge imposed a sentence of thirty days' confinement and a bad-conduct discharge. Under WIS. STAT. § 322.060, Riemer sought review of the sentence by the convening authority (the adjutant general), who approved the sentence. Riemer appeals the sentence.

         DISCUSSION

         ¶9 In order to provide the legal context for Riemer's state court appeal of his military court-martial sentence, we begin with a brief overview of the military justice system that applies to members of the Wisconsin Army National Guard.[2] We then address the question of whether federal military law or Wisconsin state law governs the first issue, sentencing discretion. We conclude that we should apply Wisconsin's standards of appellate review to that issue and, under those standards, we affirm. Finally, we address the last three issues, applying law found in Wisconsin cases addressing the particular due process issues, and affirm as to those issues. We do not address whether we should look to federal due process case law as would a federal military appellate court.

         I. Wisconsin Army National Guard Military Justice System

         ¶10 The federal Uniform Code of Military Justice applies to members of the armed services while serving on active duty. UCMJ art. 2(a)(1) (2017) (codified at 10 U.S.C. §§ 801-946 (2015)); Manual for Courts-Martial, United States, R.C.M. 202(a) Discussion (5) and R.C.M. 204 (2016). Under the Uniform Code of Military Justice, court-martial appeals are typically appealed to the federal military appellate courts. 10 U.S.C. §§ 866, 867. However, members of the National Guard of the individual states who are not serving in federal active duty status are under the control of the states, and are therefore subject to the military justice systems of the states. See 32 U.S.C. §§ 326-327.

         ¶11 Federal law authorizes the states to enact military justice codes that provide for court-martial jurisdiction for their National Guard members. 32 U.S.C. § 326. In 2008, Wisconsin enacted the Wisconsin Code of Military Justice, which provides for court-martial jurisdiction for Wisconsin National Guard members. WIS. STAT. §§ 322.002, 322.016-.0767. The Wisconsin Code of Military Justice directs that appeals from military court-martial decisions involving Wisconsin National Guard members are made to the state court of appeals, District IV, and the state supreme court following the appellate procedures provided under WIS. STAT. ch. 809. WIS. STAT. § 322.0675.

         II. Sentencing Discretion

         ¶12 This appears to be the first appeal to this court under the Wisconsin Code of Military Justice, and therefore we have no precedent in determining whether federal military law or Wisconsin state law governs the sentencing discretion issue in this case. That determination turns on the interpretation of a statute, which is a question of law that we address de novo. Juneau Cty. v. Associated Bank, N.A., 2013 WI.App. 29, ¶15, 346 Wis.2d 264, 828 N.W.2d 262.

         ¶13 The purpose of statutory interpretation is to discern the intent of the legislature. Id., ¶16. When we interpret a statute, we begin with the statute's plain language, because we assume that the legislature's intent is expressed in the words it used. Id., State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110. "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Kalal, 271 Wis.2d 633, ¶45. We interpret statutory language in the context in which it is used, in relation to the language of surrounding or closely related statutes, and in a reasonable manner, to avoid absurd or unreasonable results. Id., ¶46.

         ¶14 Two statutory provisions govern this appeal. As referenced above, WIS. STAT. § 322.0675 provides that convictions by a general court-martial are appealed "to the Wisconsin court of appeals, District IV and, if necessary, to the Wisconsin Supreme Court." WISCONSIN STAT. § 322.143 provides that the Wisconsin Code of Military Justice, Wis. STAT. ch. 322, "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 Uniform Code of Military Justice]." (Emphasis added.) Thus, when we engage in appellate review under § 322.0675, we are to conduct appellate review as would a military appellate court, following the federal Uniform Code of Military Justice and the federal military law interpreting that code, so far as it is "practical" to do so.

         ¶15 WISCONSIN STAT. ch. 322 does not contain a definition of the term "practical." The relevant dictionary definitions of "practical" include: "[o]f, relating to, governed by, or acquired through practice or action, rather than theory, speculation, or ideals"; "[c]apable of being used or put into effect; useful"; "[l]evel-headed, efficient, and unspeculative." The American Heritage COLLEGE DICTIONARY 1073 (3d ed. 1993). See Lemmer v. Schunk, 2008 WI.App. 157, ¶10, 314 Wis.2d 483, 760 N.W.2d 446 ("We may use a dictionary to establish the common meaning of a word."). The question, then, is whether federal military law governing the review of sentences is capable of being put into effect by Wisconsin appellate courts in a useful and unspeculative manner, governed by or acquired through practice or action. As we explain, we conclude that the answer is no.

         ¶16 Under federal military law, a military appellate court reviews a court-martial decision under Article 66(c) of the Uniform Code of Military Justice, which provides that:

In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority [here, the adjutant general]. It may affirm only such findings of guilty, 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. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

10 U.S.C. § 866(c).

         ¶17 Article 66(c) has been interpreted to require "that the members of [the Courts of Criminal Appeals] independently determine, in every case within [their] limited Article 66, [Uniform Code of Military Justice], jurisdiction, the sentence appropriateness of each case [they] affirm." U.S. v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005) (quoted source omitted) (emphasis added).

         ¶18 At oral argument, Riemer acknowledged that military appellate courts are made up of officers who have been military judges, who have extensive experience in imposing sentences, and who rely on that experience to "independently determine" whether the judge in a particular court-martial proceeding imposed an "appropriate" sentence. See U.S. v. Ballard, 20 M.J. 282, 286 (C.M.A. 1985) ("the experienced and professional military lawyers who find themselves appointed as trial judges and judges on the courts of military review have a solid feel for the range of punishments typically meted out in courts-martial.... [W]e have every confidence that this accumulated knowledge is an explicit or implicit factor in virtually every case in which a military judge imposes sentence or a court of military review assesses for sentence appropriateness.").

         ¶19 However, excepting individual Wisconsin judges who might happen to have a military background and familiarity with the military justice system, Wisconsin's appellate judges lack the military judges' experience and "accumulated knowledge" necessary to inform such an independent review of sentencing decisions. See id. In the words of the dictionary definition stated above, Wisconsin's appellate judges have not "acquired, " and cannot be "governed by, " the "practice or action" relevant to the assessment of a military court-martial sentence's appropriateness because, generally, the judges lack any such "practice or action." And absent that "practice or action, " Wisconsin appellate judges are unable to conduct the sort of independent review required by federal military law in a useful and unspeculative manner. It follows that it is not practical for Wisconsin appellate judges to attempt to apply federal military law to the review of sentencing discretion.

         ¶20 We note that we could not obtain the equivalent of first-hand experience by reviewing military case law. That is, it would be plainly impractical for Wisconsin appellate judges to search military case law for dispositions in similar cases given the fact-specific nature of such cases and the inherent limitations on setting forth facts in written decisions. For that matter, just because a particular sentence is reversed or affirmed, does not mean that a different military appellate court would not have reached a different result. As we understand the law, military appellate courts effectively employ sentencing discretion in the same way a military sentencing judge does in the first instance, meaning that there is a range of permissible outcomes. Notably, Riemer does not provide us with a review of case law addressing dispositions in similar cases in an attempt to demonstrate a pattern of less harsh treatment in similar situations.

         ¶21 Nor does Riemer engage on the question of how the appellate judges of this District would acquire the necessary knowledge to apply independent review of military sentencing. Instead, Riemer focuses his attention on how hard and expensive it would be for military attorneys to learn Wisconsin criminal law for purposes of handling cases of this type, including the appeals. That is, Riemer expresses concern that it would be difficult and costly for the military to have to train Wisconsin National Guard judge advocates regarding Wisconsin appellate law on those points on which state law differs from the federal military law that they learn alongside their active-duty counterparts.

         ¶22 First, we question whether this topic is germane to the interpretation of a statutory provision directing us to apply military law to the extent that it is practical for us to do so. That is, we do not see how Riemer's argument, that it may be hard and expensive for the military if Wisconsin appellate courts apply state law, is germane to the statutory inquiry into whether it is practical for the state appellate courts to apply federal military law.

         ¶23 Second, Riemer's argument is not convincing because there is nothing difficult about Wisconsin law as it pertains to the review of sentencing discretion. Significantly, Riemer does not identify anything that military lawyers or judges would need to do differently based on whether review was deferential or independent. Thus, even if this concept about what may be hard or expensive for military lawyers is considered to be pertinent to our statutory analysis, we do not see how the deferential review that we apply to sentencing decisions would affect military lawyers' efforts to present their best cases on behalf of their clients, including at sentencing and in appeals. More to the point, any hardship in that regard does not address the pertinent question here, whether it is practical for Wisconsin appellate courts to engage in independent review, as would a military appellate court.

         ¶24 Riemer makes a number of additional, short, unpersuasive arguments. We briefly address and reject them for the sake of completeness.

         ¶25 Riemer points to the fact that this is the first appeal since the Wisconsin Code was enacted in 2008, and asserts that the scarcity of court-martial appeals means that it is practical for this court to "adopt" the independent review required by federal military law because such appeals will be so rare. Riemer's point is unclear. Why would the rarity of cases make the application of independent review more practical? It appears to us that low volume only exacerbates the lack of "practice or action" that we have already stated makes the application of federal military law impractical.

         ¶26 Focusing on the "make it uniform" language in WIS. STAT. § 322.143 rather than on the "so far as practical" language, Riemer argues in a conclusory fashion that we should apply the federal military law that applies to "similarly situated" National Guard service members in federal active duty status for the sake of uniformity. However, this conclusory argument is contrary to the federal law that places the discipline of National Guard service members who are not in federal active duty status entirely within the jurisdiction of the states they serve, and the text of the state law that we are interpreting. Neither requires this level of uniformity. To the contrary, our state statute specifically permits differences when applying military law is not "practical." WIS. STAT. § 322.143.

         ¶27 Riemer makes a couple of arguments that bypass the interpretation of the text of WIS. STAT. § 322.143 altogether. Riemer argues that the body of federal case law concerning appellate review by military courts of court-martial sentences clearly seeks conformity with the federal military standard. This may be true, but it is beside the point. That federal military courts follow the federal military standard is not relevant to the question of whether it is practical for state appellate courts do the same. Similarly, his argument that applying federal military law will maintain "the character and integrity of the military justice process, " is an abstract aspirational statement that Riemer fails to connect to the language of the state law provision at issue here.[3]

         ¶28 In sum, Riemer fails to support his assertion that it is practical for Wisconsin appellate courts to follow federal military law in reviewing sentencing discretion, and we conclude that it is not practical for Wisconsin appellate courts to do so. Accordingly, we proceed to apply ...


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