

   
   
   
   U.S. v. Harris



IN THE CASE OF
UNITED STATES, Appellee
v.
Ronald L. HARRIS, Sergeant
U.S. Army, Appellant
 
No. 99-0731
Crim. App. No. 9301182
 
United States Court of Appeals for the Armed
Forces
Argued February 29, 2000
Decided June 5, 2000

EFFRON, J., delivered the opinion of
the Court, in which SULLIVAN, J., and COX, S.J., joined. GIERKE, J., filed
an opinion concurring in the result, in which CRAWFORD, C.J., joined.

Counsel
For Appellant: Captain
Joshua E. Braunstein (argued); Colonel Adele H. Odegard, Major
Scott R. Morris and Major Kirsten V.C. Brunson (on brief).
For Appellee: Captain Katherine
M. Kane (argued); Colonel Russell S. Estey and Lieutenant
Colonel Eugene R. Milhizer (on brief).
Military Judge: Kenneth H.
Clevenger
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer
members convicted appellant, contrary to his pleas, of dereliction of duty,
maltreatment of a soldier, rape, and adultery, in violation of Articles
92, 93, 120, and 134, Uniform Code of Military Justice, 10 USC §§
892, 893, 920, and 934, respectively. He was sentenced to a dishonorable
discharge, confinement for 10 years, and reduction to the lowest enlisted
grade. The convening authority approved that portion of the sentence that
provided for a dishonorable discharge, confinement for 5 years, and reduction
to the lowest enlisted grade.
The Court of Criminal Appeals set aside the
findings of guilty for the maltreatment and rape charges and conditionally
set aside the sentence. 41 MJ 890, 895 (1995). The lower court decreed
that the same or a different convening authority could order a rehearing
on the rape and maltreatment offenses, or if such a hearing was impracticable,
could order a rehearing on sentence for the remaining findings of guilty
of dereliction of duty and adultery. As a further option, the court gave
the convening authority the option of reassessing appellants sentence
if a rehearing on sentence was impracticable. The convening authority chose
reassessment, approving a sentence that included a bad-conduct discharge,
confinement for 10 months, and reduction to the lowest enlisted grade.
The Court of Criminal Appeals affirmed the reassessed sentence in an unpublished
opinion.
On appellants petition, we granted review
of the following issues:

I. WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ABUSED ITS DISCRETION BY ORDERING THE CONVENING AUTHORITY IN APPELLANTS
CASE TO EITHER CONDUCT A REHEARING OR REASSESS APPELLANTS SENTENCE WHERE
THE ARMY COURT OF CRIMINAL APPEALS SET ASIDE CHARGES THAT WERE VASTLY MORE
SEVERE THAN THE REMAINING CHARGES AND REASSESSMENT BY THE CONVENING AUTHORITY
WAS NOT A PROPER ALTERNATIVE.


II. WHETHER THE COURT OF CRIMINAL APPEALS,
IN REVIEWING THE SENTENCE AFTER REASSESSMENT BY THE CONVENING AUTHORITY,
ERRED BY NOT SPECIFICALLY DETERMINING WHETHER THE REASSESSED SENTENCE PROVIDED
APPROPRIATE RELIEF REQUIRED BY UNITED STATES V. SALES, 22 MJ 305
(CMA 1986), AND UNITED STATES V. JONES, 39 MJ 315 (CMA 1994).

For the reasons discussed below, we reverse the
decision of the Court of Criminal Appeals.

I. Background
During its initial review of this case, the
Court of Criminal Appeals held that the military judge erred by not allowing
the defense to present evidence of the alleged victims prior conviction
for solicitation. The court set aside the findings of guilty for the rape
and maltreatment charges, affirmed the unrelated findings of guilty for
the remaining charges of dereliction of duty and adultery, and conditionally
set aside appellants sentence. The court provided the convening authority
with three options: (1) order a rehearing on the rape or maltreatment charges
(or both) and the sentence; (2) if the first option was impracticable,
dismiss the rape and maltreatment charges and order a rehearing on sentence;
or (3) if the second option was impracticable, reassess the appellants
sentence.
On remand, the staff judge advocate recommended
that the convening authority dismiss the rape and maltreatment charges
and reassess appellants sentence to include a bad-conduct discharge, confinement
for 10 months, and reduction to the lowest enlisted grade. Defense counsel
objected, contending that the recommendation did not explain why a rehearing
on sentence was impracticable and did not provide a record-specific basis
for the new sentence. Defense counsel also asserted that reassessment was
not appropriate in view of the disparity between the dismissed charges
and the remaining charges. The staff judge advocate adhered to his original
recommendation, noting in an addendum that rehearings were impracticable
because the key witness could not be located and the record of trial was
insufficient for these purposes. The convening authority accepted the staff
judge advocates recommendation, dismissing the rape and maltreatment charges
and modifying the sentence to include a bad-conduct discharge, confinement
for 10 months, and reduction to the lowest enlisted grade.
Appellant asked the Court of Criminal Appeals
to order a sentence rehearing on the grounds that the convening authority
failed to show good cause for not ordering such a proceeding. The court,
however, rejected appellant's request and affirmed the sentence as reassessed
in an unpublished opinion. Neither the staff judge advocates recommendation
nor the lower courts opinion stated whether the reassessed sentence afforded
appellant appropriate relief under the criteria established by United
States v. Sales, 22 MJ 305 (CMA 1986), and United States v. Jones,
39 MJ 315 (CMA 1994).

II. Discussion
A Court of Criminal Appeals may purge the prejudicial
impact of an error at trial if it can determine that "the accuseds sentence
would have been at least of a certain magnitude." Jones, supra
at 317, quoting Sales, supra at 307. "No sentence higher
than that which would have been adjudged absent error will be allowed to
stand." Jones, supra at 317, quoting United States v.
Peoples, 29 MJ 426, 428 (CMA 1990). If the court cannot determine that
the sentence would have been at least of a certain magnitude absent the
error, it must order a rehearing. See United States v. Poole,
26 MJ 272, 274 (CMA 1988). The court must make the same determination if
a sentence has been reassessed by a convening authority upon remand. See
RCM 1107 (e)(1)(B), Discussion, Manual for Courts-Martial, United States
(1998 ed.).
A sentence reassessment is reviewed for an
abuse of discretion. "We will only disturb the [lower court's] reassessment
in order to prevent obvious miscarriages of justice or abuses of discretion."
United
States v. Hawes, 51 MJ 258, 260 (1999), quoting United States v.
Davis, 48 MJ 494, 495 (1998), and Jones, supra at 317.
In the present case, appellant was convicted of rape, maltreatment, dereliction
of duty, and adultery. He faced a maximum potential punishment which included
life imprisonment, total forfeitures, and a dishonorable discharge for
the rape charge alone. See para. 45e(1), Part IV, Manual, supra
(the charge was not referred as capital in this case). After dismissal
of the rape and maltreatment charges, appellant faced a maximum potential
punishment of 18 months confinement, total forfeitures, and a dishonorable
discharge for the dereliction of duty and adultery charges.
See
paras. 16e(3)(B) and 62e, Part IV, Manual, supra.
The elimination of the rape and maltreatment
charges drastically changed the penalty landscape in this case, reducing
the maximum confinement term from life imprisonment to 18 months. Given
the vast disparity between the maximum punishments for the offenses dismissed
and those affirmed, it is not possible for a court to ascertain that appellants
sentence would have been no greater than a bad-conduct discharge and 10
month's confinement absent the error at trial. This case presents one of
those "occasions when the only fair course of action is to have an accused
resentenced at the trial level." Peoples, supra at 429.
In view of our disposition of the first issue
in this case, the second is moot.

III. Conclusion
The decision of the United States Army Court
of Criminal Appeals dated August 21, 1996, is affirmed as to findings but
reversed as to sentence. The record of trial is returned to the Judge Advocate
General of the Army for a rehearing on sentence.


GIERKE, Judge, with whom CRAWFORD, Chief Judge,
joins (concurring in the result):
By deciding this case on the basis of the first
granted issue, this Court appears to hold that the Court of Criminal Appeals
erred by giving the convening authority an option to order a rehearing
or reassess the sentence. The majority appears to say that no convening
authority could have properly reassessed the sentence and that no reassessment,
no matter how generous to appellant, could satisfy the criteria established
by this Court. It implies that, even if the convening authority had reassessed
the sentence and drastically reduced it, e.g., by approving only a one-grade
reduction, this Court could not be satisfied that, absent the error, the
sentence would have been at least of that magnitude. United States v.
Sales, 22 MJ 305, 307 (CMA 1986). I cannot support that position.
In my view, the court below did not err by
giving the convening authority the option to reassess the sentence. The
error occurred when the convening authority exercised his option to reassess
but did not apply the Sales criteria. His error was compounded by
the failure of the court below to correct it.
Neither the staff judge advocates recommendation
nor the convening authoritys action reflects cognizance of the Sales
criteria for sentence reassessment. The court below could have remedied
these deficiencies by specifically applying Sales in its review
of the convening authoritys action, but it did not.
In my view, the court below abused its discretion
by failing to review the convening authoritys reassessment under the Sales
criteria. See United States v. Taylor, 47 MJ 322, 325 (1997).
Thus, we are confronted with a sentence reassessment but no indication
of the criteria under which that reassessment was made. Ordinarily, my
preference would be to return the case to the court below for reconsideration
under Sales. However, as the court below was afforded the opportunity
to correct the error after the first remand and failed to apply the correct
legal standard, I join the majority in ordering a sentence rehearing.

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