                UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                                 UNITED STATES

                                                             v.

                                 Staff Sergeant LASHAWN M. JENNINGS
                                           United States Air Force

                                                      ACM 38355

                                                 06 November 2014

               Sentence adjudged 6 March 2013 by GCM convened at Scott Air Force
               Base, Illinois. Military Judge: Lynn Schmidt1 (sitting alone).

               Approved Sentence: Confinement for 12 months and reduction to E-4.

               Appellate Counsel for the Appellant: Major Christopher D. James.

               Appellate Counsel for the United States: Lieutenant Colonel C. Taylor
               Smith; Captain Richard J. Schrider; and Gerald R. Bruce, Esquire.

                                                          Before

                                        HECKER, WEBER, and KIEFER
                                          Appellate Military Judges

                                            OPINION OF THE COURT

                            This opinion is subject to editorial correction before final release.



KIEFER, Judge:

       A general court-martial composed of a military judge sitting alone convicted the
appellant, contrary to her pleas, of a single specification of culpably negligent child
endangerment resulting in harm, in violation of Article 134, UCMJ, 10 U.S.C. § 934.
The military judge sentenced the appellant to confinement for 12 months and reduction to
E-4. The convening authority approved the sentence as adjudged.

       The appellant challenges the severity of her sentence and claims ineffective
assistance of trial defense counsel.2 We affirm.
1
    Prior to this opinion, the military trial judge’s last name changed from Schmidt to Watkins.
                                                  Background

       The appellant adopted a five-year-old child in 2005. Years later, she married
Mr. James Jennings. In 2012, the child visited a school nurse complaining of a hurt arm.
The nurse noticed significant bruising on the child’s arm and a bruise on his back.
Eventually, the child disclosed that his stepfather, Mr. Jennings, had abused him by
hitting him with his hand and a belt. A subsequent medical examination found several
bruises on the child’s body.

       The child later described how Mr. Jennings regularly beat him, with the
appellant’s knowledge. He also stated that shortly before his injuries were discovered,
the appellant left him in the care of Mr. Jennings. On this occasion, Mr. Jennings
punished the child for eating cookies by forcing him to eat the whole package of cookies,
including crumbs that had fallen on the floor. Mr. Jennings also forced the child to eat
other items on the floor, including two screws. A subsequent x-ray confirmed the child
had ingested two screws.

       The appellant was convicted of endangering her child in a culpably negligent
manner by leaving the child with a caregiver whom she knew had caused bodily harm to
the child in the past.3

                                               Sentence Severity

       In this case, the appellant argues that her sentence of confinement for 12 months
and reduction to E-4 was too severe based on the offense for which she was convicted.
Additionally, she maintains that her sentence was unduly harsh as compared to the
sentence her husband received in a civilian criminal proceeding for allegedly related
conduct.

       This court “may affirm only such findings of guilty and the sentence or such part
or amount of the sentence, as [we find] correct in law and fact and determine[], on the
basis of the entire record, should be approved.”                 Article 66(c), UCMJ,
10 U.S.C. § 866(c). We review sentence appropriateness de novo, employing
“a sweeping congressional mandate to ensure a fair and just punishment for every
accused.” United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (quoting
United States v. Bauerbach, 55 M.J. 501, 504 (Army Ct. Crim. App. 2001)) (internal
quotation marks omitted). “We assess sentence appropriateness by considering the
particular appellant, the nature and seriousness of the offense, the appellant’s record of

2
  The appellant raises the ineffective assistance of counsel issue pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
3
   The military judge acquitted the appellant of two specifications of assault consummated by a battery and
two additional specifications of child endangerment by design.


                                                          2                                              ACM 38355
service, and all matters contained in the record of trial.” United States v. Anderson,
67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citing United States v. Snelling,
14 M.J. 267, 268 (C.M.A. 1982)). Although we are accorded great discretion in
determining whether a particular sentence is appropriate, we are not authorized to engage
in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

       Additionally, “[t]he Courts of Criminal Appeals are required to engage in sentence
comparison only ‘in those rare instances in which sentence appropriateness can be fairly
determined only by reference to disparate sentences adjudged in closely related cases.’”
United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States v.
Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). Sentence comparison is not required unless
this court finds that any cited cases are “closely related” to the appellant’s case and the
sentences are “highly disparate.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F.
1999). Closely related cases include those which pertain to “coactors involved in a
common crime, servicemembers involved in a common or parallel scheme, or some other
direct nexus between the servicemembers whose sentences are sought to be compared.”
Id. The “appellant bears the burden of demonstrating that any cited cases are ‘closely
related’ to his or her case and that the sentences are ‘highly disparate.’ If the appellant
meets that burden . . . then the Government must show that there is a rational basis for the
disparity.” Id.

       We decline the appellant’s invitation to engage in sentence comparison. While the
two cases may appear factually “related,” we find they are not “closely related” as
defined by our case law. Even if we were to find the appellant’s case is “closely related”
to her husband’s civilian criminal case, the appellant would still need to demonstrate that
her sentence was “highly disparate” from her husband’s sentence before we would
consider granting relief on a sentence comparison basis.

       Our assessment of whether a sentence is highly disparate may consider both the
elements of the sentences to be compared as well as the punitive exposure each person
faced. The appellant argues that her husband received only “weekend confinement,
probation and counseling.” There is no evidence in the record to support this claim.
Even if we accepted it at face value, however, this statement still fails to address what
charge(s) Mr. Jennings was convicted of, the maximum sentence authorized, the facts and
evidence presented, and whether any plea bargain was involved in his case. Accordingly,
we cannot say that the appellant’s sentence is “highly disparate” from her husband’s
sentence, given the different jurisdiction and unknown circumstances of his case.
Accordingly, because the appellant’s case and that of her husband are not “closely
related” and because we do not find the sentences to be “highly disparate” on the facts
presented, we are not required to conduct a sentence comparison in this case.

       As part of our authority to review the appropriateness of a sentence, however, we
also consider the appellant’s sentence in its own right. The appellant was convicted of


                                             3                                    ACM 38355
endangering her child in a culpably negligent manner by leaving the child with a
caregiver whom she knew to have been abusive in the past. Additionally, the child
sustained harm through the appellant’s culpably negligent act. The appellant faced a
maximum sentence of a bad-conduct discharge, confinement for 2 years, reduction to
E-1, and total forfeiture of all pay and allowances, and was sentenced to 12 months
confinement and reduction to E-4. The appellant’s argument that “50% of the maximum
confinement” is too severe fails to consider the entire range of punishment at issue.
Notably, the appellant did not receive a bad-conduct discharge, which would have been a
severe punishment with a lasting impact, especially for the appellant who had over
18 years of service and was approaching retirement eligible status. Furthermore, she did
not receive any adjudged forfeitures and was only reduced to E-4.

        Evaluating the severity of the sentence, we find that reduction to E-4 and
confinement for 12 months is not inappropriate based on the facts and circumstances of
this case and all matters in the record of trial.

                            Ineffective Assistance of Counsel

        Appellant also argues that her trial defense counsel was ineffective for failing to
submit evidence that the child previously made an unsubstantiated allegation of abuse
(against different individuals) and failing to cross-examine the child about being a
“thief.”

       When reviewing claims of ineffective assistance of counsel, we follow the
two-part test outlined by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 687 (1984). See United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007).
Our superior court has applied this standard to military courts-martial, noting that “[i]n
order to prevail on a claim of ineffective assistance of counsel, an appellant must
demonstrate both (1) that his counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361
(C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687; United States v. Mazza,
67 M.J. 470, 474 (C.A.A.F. 2009)).

       “[T]he defense bears the burden of establishing the truth of the factual allegations
that would provide the basis for finding deficient performance.” Tippit, 65 M.J. at 76.
When there is a factual dispute, appellate courts determine whether further fact-finding is
required consistent with United States v. Ginn, 47 M.J. 236, 243 (C.A.A.F. 1997). If,
however, the facts alleged by the defense would not result in relief under Strickland, the
court may address the claim without the necessity of resolving the factual dispute.
See Ginn, 47 M.J. at 248. Such is the case here.

       Trial defense counsel acknowledged in a post-trial affidavit that he was aware of a
prior abuse allegation made by the child against several members of the appellant’s


                                             4                                   ACM 38355
family while they were caring for the child in Florida at the appellant’s request. He was
also aware the child had been arrested at Scott Air Force Base (AFB), Illinois, for a theft
issue. Notwithstanding this, trial defense counsel elected to not question the child or any
other witness about either the prior abuse allegation or the theft issue. His basis for
declining these lines of inquiry was that they did not fit with his case theory of casting
blame on the appellant’s husband, and he also wanted to avoid alienating the fact-finder
and creating added sympathy for the child. These are typical tactical decisions normally
entrusted to a trial defense counsel. United States v. Perez, 64 M.J. 239, 243 (C.A.A.F.
2006) (holding as a general matter, appellate courts will not second guess the strategic or
tactical decisions made at trial by defense counsel). Upon review of the record, we find
these decisions were reasonable based on the facts of this case. Consequently, we do not
find trial defense counsel’s performance to be deficient.

       Additionally, even if there was some deficiency in trial defense counsel’s tactical
decisions, there was no prejudice to the appellant. To establish prejudice, the appellant
must show “that there is a reasonable probability that, but for counsel’s [deficient
performance], the result of the proceedings would have been different.” Strickland,
466 U.S. at 694. First, the evidence trial defense counsel allegedly failed to use at trial
falls short of the appellant’s representations or would not have been beneficial to the
defense case. While the prior abuse allegation was not substantiated, the findings did not
indicate that the child lied or was untrustworthy and, as trial defense counsel noted, the
report about this allegation indicated the child had been left with family members who
had a “pattern of reports” filed against them at the civilian family services agency.
Regarding the child’s arrest at Scott AFB, there is some question whether this would
have even been admissible in this prosecution for assault and child endangerment. A
failed attempt to characterize the child as a delinquent may have also had negative
ramifications for the appellant in sentencing.

       In this case, the appellant was acquitted of four of five specifications.
Additionally, she did not receive a punitive discharge. We agree with trial defense
counsel that the physical evidence of abuse was overwhelming and attacking the child
through use of a prior allegation of abuse and a possible theft was unlikely to result in a
better outcome. Further, a failed effort to attack the child in this manner could have
resulted in convictions on additional specifications or an increased sentence.
Accordingly, applying the Strickland standard, trial defense counsel’s actions were not
deficient, and there was no prejudice to the appellant.

                                       Conclusion

       The approved findings and the sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), 10 U.S.C. §§ 859(a), 866(c).



                                             5                                   ACM 38355
Accordingly, the approved findings and the sentence are AFFIRMED.



            FOR THE COURT


            STEVEN LUCAS
            Clerk of the Court




                                        6                           ACM 38355
