                       UNITED STATES, Appellee

                                    v.

                    Michael A. GARNER, Specialist
                         U.S. Army, Appellant

                              No. 12-0282

                       Crim. App. No. 20080401

       United States Court of Appeals for the Armed Forces

                       Argued October 23, 2012

                       Decided January 8, 2013

ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., and RYAN, J., joined. STUCKY, J., filed a separate
opinion concurring in the result. EFFRON, S.J., filed a
separate opinion concurring in part and in the result.

                                 Counsel


For Appellant: William E. Cassara, Esq. (argued); Captain John
L. Schriver (on brief).

For Appellee: Captain Kenneth W. Borgnino (argued); Lieutenant
Colonel Amber J. Roach and Major Katherine S. Gowel (on brief).

Military Judge:   Theresa A. Gallagher


       This opinion is subject to revision before final publication.
United States v. Garner, No. 12-0282/AR

     Judge ERDMANN delivered the opinion of the court.

     Specialist Michael A. Garner, contrary to his pleas, was

found guilty at a general court-martial with members of:   rape,

forcible sodomy, and indecent assault of his biological

daughter; possessing child pornography; desertion; and

disobeying a no-contact order.    Articles 120, 125, 134, 85, and

90, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920,

925, 934, 885, 890 (2006).   The convening authority approved the

adjudged sentence of reduction to E-1, forfeiture of all pay and

allowances, confinement for life, and a dishonorable discharge.

The United States Army Court of Criminal Appeals (CCA) affirmed

the findings and the sentence.1   United States v. Garner, No.

ARMY 20080401, 2011 CCA LEXIS 396, at *9-*10, 2011 WL 6088629,

at *3-*4 (A. Ct. Crim. App. Nov. 29, 2011).

     Rule for Courts-Martial (R.C.M.) 1009(e)(1) provides that

when “reconsideration has been initiated, the military judge

shall instruct the members on the procedure for

1
  The CCA affirmed only so much of the finding of guilty of
Specification 2 of Charge III as finds that Garner:

     did, on divers occasions between 1 December 2006 and 31
     December 2006, at Fort Story, Virginia, wrongfully and
     knowingly view or possess child pornography, depicting
     images of a child that was or appeared to be under the age
     of 18, engaged in sexual acts, including: pictures of his
     biological daughter, S.R.G., a person under the age of 18,
     in various stages of undress, posed in a lewd or lascivious
     manner and engaged in fellatio, which conduct, under the
     circumstances, was to the prejudice of good order in the
     armed forces, or was of a nature to bring discredit upon
     the armed forces.

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United States v. Garner, No. 12-0282/AR

reconsideration.”    We granted review of this case to determine

whether the military judge erred when she did not give a

reconsideration instruction to the members after she examined

the initial sentence worksheet and returned the members for

further deliberations.    We also granted an issue as to whether

the failure to allege the terminal element in Specification 1 of

Charge III constituted prejudicial error.2       We hold that while

the military judge erred in failing to give an instruction on

reconsideration, any such error was harmless and therefore

affirm the CCA on Issue I.    As to Issue II, we return the record

to the Judge Advocate General of the Army for remand to the CCA

for further consideration in light of United States v. Fosler,

70 M.J. 225 (C.A.A.F. 2011), and United States v. Humphries, 71

M.J. 209 (C.A.A.F. 2012).




2
    We granted review of the following issues:

       I. Whether the military judge erred when she failed
       to give the necessary instructions on sentence
       reconsideration.

       II. Whether the Army Court of Criminal Appeals erred
       when it held that Specification 1 of Charge II states
       an offense even though the Government did not allege
       the terminal element, either expressly or by necessary
       implication, as required by United States v. Fosler,
       70 M.J. 225 (C.A.A.F. 2011).

United States v. Garner, 71 M.J. 301 (C.A.A.F. 2012) (order
granting review).



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United States v. Garner, No. 12-0282/AR

                                I.

       Whether the Military Judge Erred When She Failed to
        Provide the Panel with an Instruction on Sentence
                         Reconsideration.


Background

     After Garner had been found guilty but prior to the members

beginning their deliberations on the sentence, the military

judge properly provided the standard instructions concerning the

possible punishments.   As to the instructions related to

confinement, the military judge advised the members:

     [T]his Court may sentence the accused to confinement
     for life without the eligibility for parole. Unless
     confinement for life without eligibility for parole or
     confinement for life is adjudged, a sentence to
     confinement should be adjudged in either full days or
     full months or full years.

     After instructing the members on the procedures for voting,

the military judge informed the members that “once a proposal

has been agreed to by the required concurrence, then that is

your sentence.”   She instructed the members that:

     You may reconsider your sentence at any time prior to
     its being announced in open court. If, after you
     determine your sentence, any member suggests that you
     reconsider the sentence, open the court, and the
     president should announce that reconsideration has
     been proposed . . . [and] I will give you specific
     instructions on the procedure for reconsideration.

She also provided the members with a sentence worksheet as an

aid in putting the adjudged sentence in proper form.




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United States v. Garner, No. 12-0282/AR

     When the members returned from sentence deliberations, the

military judge reviewed the sentence worksheet prior to the

announcement of the adjudged sentence.    Following her review she

informed the president of the panel that the worksheet was not

in proper form and that she would repeat the instruction on

confinement and return the members for further deliberation.

The portion of the worksheet relating to confinement provided:




The military judge again instructed the members as to their

options related to confinement.   At the end of those

instructions, she asked the president of the panel if he

believed the panel needed further instructions and the president

responded in the affirmative.

     The military judge placed the panel in recess and convened

an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), hearing.

During that hearing the military judge stated “I believe that

the sentence worksheet is ambiguous and inconsistent and intend

to have the members return to deliberate in order to clarify

what their sentence is . . . .”   The defense objected stating

that they believed that the requisite number of panel members

voted on a sentence that included a term of years, and

therefore, it was a legal sentence.   Defense counsel went on to

say, “We believe that the presence of a more severe term of

confinement on the sentencing worksheet should have no effect



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United States v. Garner, No. 12-0282/AR

because the panel has reached a decision on the least severe

punishment.   We believe, therefore, that that should be the

sentence and the other terminology should be disregarded.”3

     The military judge disagreed with the defense assessment

and when the court reconvened with members, she informed the

members that the sentence worksheet was ambiguous.   She

explained the ambiguity by advising them that they could not

adjudge a sentence that included both a qualified term of years

to confinement and confinement for life without eligibility for

parole.    She stated that “[y]ou cannot have those two sentences

coexist.”   She went on to again provide the members with

instructions with respect to the options concerning confinement

and parole.   She advised them that “you do not have a vote with

regards to parole unless you determine that a sentence to life

is appropriate . . . . [y]ou do not have a say about any type of

a parole situation with regards to a quantifiable term.”    She

then gave the members a clean sentence worksheet and returned

them to their deliberations.

     The military judge did not provide any instructions

concerning the reconsideration procedures found in R.C.M.

1009(e).    After additional deliberations the members returned


3
  Although the defense counsel objected to permitting the members
to clarify the adjudged sentence, the defense counsel did not
request that the military judge instruct the members as to the
procedures for reconsideration or object to the absence of such
instructions.

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United States v. Garner, No. 12-0282/AR

and announced a sentence that did not include either period of

confinement reflected on the original sentence worksheet, but

rather reflected a sentence of confinement for life.



Discussion

     “Whether a panel was properly instructed is a question of

law reviewed de novo.”   United States v. Ober, 66 M.J. 393, 405

(C.A.A.F. 2008) (citation omitted).

     Garner argues that the panel’s initial sentence was illegal

because it contained an unauthorized punishment, i.e., a term of

years without eligibility for parole, and further argues that

the sentence itself was not ambiguous.4   Garner asserts that

while clarification under R.C.M. 1009(c) is proper for

ambiguities involving mistakes in the announcement of a sentence

or verbal or clerical errors, reconsideration is appropriate

when the panel has imposed an illegal sentence as they did here,

citing United States v. Jones, 3 M.J. 348, 351-52 (C.M.A. 1977).

He goes on to argue that the military judge’s failure to provide

a sua sponte instruction on reconsideration essentially

instructed the members to deliberate anew on any sentence to


4
  Garner asserts that the initial sentence worksheet reflected a
sentence of “35 years no parole.” The members’ entry as to
confinement appears on its face to sentence Garner to
confinement for both thirty-five years and confinement for life
without eligibility for parole. Garner’s interpretation, while
not supported by the worksheet entry, reflects the confusion
that arose from the initial sentence to confinement.

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United States v. Garner, No. 12-0282/AR

confinement.   Assuming that the original sentence was for

thirty-five years of confinement, Garner argues that he was

substantially prejudiced by the subsequent more severe sentence

of confinement for life and there is no way to know whether the

required majority of the panel voted to increase the sentence to

confinement as required by R.C.M. 1009(e)(3)(A).

     In response, the Government argues that because the

sentence reflected on the original sentence worksheet was

ambiguous as to the period of confinement adjudged, there was no

lawful sentence to reconsider.   The Government concludes

therefore that the issue was one of clarification under R.C.M.

1009(c), and not reconsideration under R.C.M. 1009(e).   The

Government goes on to argue that R.C.M. 1009(e) does not apply

to the situation presented in this case.   In making this

argument the Government asserts that in some cases an ambiguous

sentence can be “reconsidered,” making a distinction between

“reconsideration” of an ambiguous sentence that is a legal

nullity and “reconsideration” with a view towards either

increasing or decreasing an otherwise lawful sentence.   In the

Government’s view, the former does not require an instruction on

reconsideration procedures while the latter does.

      “The military judge has an independent duty to determine

and deliver appropriate instructions.”    Ober, 66 M.J. at 405

(citation omitted).   R.C.M. 1005(a) provides that “[t]he



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United States v. Garner, No. 12-0282/AR

military judge shall give the members appropriate instructions

on sentence.”   R.C.M. 1009(e)(1) provides that the military

judge “shall” instruct the members on the procedure for

reconsideration “[w]hen a sentence has been reached by members

and reconsideration has been initiated.”   The text of R.C.M.

1009(e) provides that any member may propose reconsideration of

a sentence but does not address whether a military judge can

initiate reconsideration.   The analysis to R.C.M. 1009 in

Appendix 21 of the Manual for Courts-Martial, United States

(MCM), however, indicates that when reconsideration is initiated

by the military judge, a formal vote on reconsideration is

necessary.5

     Except in limited circumstances not applicable here, R.C.M.

1009 provides that “a sentence may be reconsidered at any time


5
  R.C.M. 1009 is based on Articles 52(c) and 62, UCMJ, and
paragraphs 76c and d of the MCM (1969 rev. ed.). See MCM,
Analysis of the Rules for Courts-Martial app. 21 at A21-81 (2012
ed.). The analysis states that the rule was amended to clarify
the confusion reflected in United States v. King, 13 M.J. 838
(A.C.M.R. 1982), which held the procedures for reconsideration
were inapplicable when the military judge initiated
reconsideration. The 1984 MCM incorporated this amendment to
R.C.M. 1009. However, in the 1995 MCM, R.C.M. 1009 no longer
contained the language that provided authority for the military
judge to initiate reconsideration. Because it is unnecessary to
the resolution of this case, we need not determine the effect of
the changes to R.C.M. 1009(c)(2) deleting the language
“apparently illegal,” or the potential issues occasioned by the
interplay of R.C.M. 1009(b)(2) and R.C.M. 1009(e)(3)(A).
However, confusion in the application of R.C.M. 1009 as evinced
by the issue presented in this case and potentially in other
similar circumstances, we consider this an area warranting
clarification by the President in the MCM.

                                 9
United States v. Garner, No. 12-0282/AR

before such sentence is announced in open session of the court.”

The review of the completed sentence worksheet by the military

judge does not constitute an announcement of the sentence.

United States v. Perkinson, 16 M.J. 400, 401 (C.M.A. 1983);

R.C.M. 1006(e).   Accordingly, since the original sentence

reached by the members in this case was not announced in open

session of the court, reconsideration was not foreclosed.

     The initial question before this court is whether the

military judge should have sua sponte provided an instruction on

the procedures for reconsideration after she reviewed the

initial sentence worksheet and before she returned the members

to their deliberations.   While the defense did object to the

military judge sending the members back into deliberations to

clarify the ambiguous sentence, there was no request for an

instruction on reconsideration at any point in the proceedings.

We therefore review this issue under a “plain error” standard.

Under plain error review, we will grant relief only where (1)

there was error, (2) the error was plain and obvious, and (3)

the error materially prejudiced a substantial right of the

accused.   United States v. Sweeney, 70 M.J. 296, 304 (C.A.A.F.

2010).

     In our view, the confinement portion of the sentence

worksheet was clearly ambiguous.     The military judge did not err

in returning the members to their deliberations to clarify the



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United States v. Garner, No. 12-0282/AR

ambiguity.   However, when the members returned from their

deliberations with a revised sentence worksheet that did not

merely clarify the ambiguity but rather reflected a “new”

sentence that included confinement for life, it was obvious that

the panel had “reconsidered” the initial sentence and had

adopted a sentence that was not reflected on the initial

sentence worksheet.   Regardless of which of the two initial

sentences the members intended, the second sentence either

increased or decreased that sentence, and therefore

reconsideration occurred.   See R.C.M. 1009(e)(3)(A)-(B).

     At that point the military judge erred by not sua sponte

providing the members with appropriately tailored instructions

for reconsideration and returning them to deliberations to

ensure compliance with R.C.M. 1009(e).    See R.C.M. 1009(e)(1)

(“[w]hen a sentence has been reached by members and

reconsideration has been initiated, the military judge shall

instruct the members on the procedure for reconsideration”)

(emphasis added).

     However, considering the circumstances under which this

issue arose and the inconsistencies between this court’s

precedent and R.C.M. 1009, we are not convinced that the error

was plain or obvious,6 and, in any event, there was no prejudice.


6
  This court’s precedent pre-dates the revisions to R.C.M. 1009
promulgated in the 1995 MCM. The discussions in United States
v. Robinson, 4 C.M.A. 12, 15 C.M.R. 12 (1954); United States v.

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United States v. Garner, No. 12-0282/AR

     R.C.M. 1009(e)(3) provides the procedures to be followed

when a sentence is reconsidered and R.C.M. 1009(e)(3)(A)

specifically provides that “[the] members may reconsider a

sentence with a view of increasing it only if at least a

majority vote for reconsideration.”   Accordingly, if the initial

sentence to confinement was thirty-five years, as urged by

Garner, reconsideration of that sentence with a view of

increasing it would have required four of the seven members to

vote for reconsideration.

     When the military judge provided her initial instructions

on possible punishments to the members, she instructed them that

a sentence of confinement for life required the concurrence of

three-fourths or six members.   See R.C.M. 1006(d)(4)(b).

Because a sentence that included confinement for life would have

required more than a simple majority (four of seven), i.e., the




Liberator, 14 C.M.A. 499, 34 C.M.R. 279 (1964); United States v.
Jones, 3 M.J. 348 (C.M.A. 1977); and United States v. Butler, 41
M.J. 211 (C.M.A. 1994), reflect the challenges occasioned prior
to 1995 in applying the MCM’s all encompassing usage of the term
“reconsideration” when referring to the process necessary for
members to increase or decrease a sentence reached by them, as
well as the process to clarify an ambiguity or correct an
apparent illegality both before and after the announcement of
the sentence. As such, this court has not explicitly defined
either “clarification” or “reconsideration.” Based on a plain
reading of the current R.C.M. 1009, the term “reconsideration”
no longer applies to the clarification of an ambiguous sentence
either before or after the sentence is announced in open session
of the court.

                                12
United States v. Garner, No. 12-0282/AR

concurrence of three-fourths of the members (six of seven),7 we

are satisfied under the unique circumstances of this case that

Garner was not prejudiced.

                                  II.

      Whether the Army Court of Criminal Appeals Erred When
       It Held that Specification 1 of Charge II States an
      Offense Even Though the Government did not Allege the
                        Terminal Element.

     We granted Issue II regarding the Article 134, UCMJ,

indecent assault offense in view of our decision in Fosler, 70

M.J. 225.8   Since our grant of review, this court decided

Humphries, 71 M.J. 209, which provides additional guidance on

the issue presented in this case.       Consistent with similar

contested cases where the issue as to failure of the Article

134, UCMJ, offense to state an offense is raised for the first

time on appeal, a remand of the case to the CCA will provide

that court an opportunity to evaluate whether the plain and

obvious error materially prejudiced Garner’s substantial rights.

                             Conclusion

     The decision of the Army Court of Criminal Appeals is

affirmed except as to the finding of guilty to Specification 1

of Charge III and the sentence.    The decision of the Army Court

7
  Although the members may have been confused as to how the
sentence worksheet was to be completed, there is no indication
that they were confused as to the initial instruction that a
sentence to confinement for life required the concurrence of
three-fourths of the members (six of seven).
8
  Granted Issue II refers to Specification 1 of Charge II, but
should refer to Specification 1 of Charge III.

                                  13
United States v. Garner, No. 12-0282/AR

of Criminal Appeals as to Specification 1 of Charge III and the

sentence is reversed.   The record is returned to the Judge

Advocate General of the Army for remand to the Army Court of

Criminal Appeals for further consideration in light of United

States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), and United States

v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).




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United States v. Garner, No. 12-0282/AR


     STUCKY, Judge (concurring in the result):

     I write separately because I disagree with the majority’s

holding that the military judge erred by failing to instruct the

members on the procedures for reconsidering the sentence.

                           I.   Background

     The military judge provided the members with a sentence

worksheet to assist them in putting the sentence in proper form.

The court members returned the sentence worksheet, which stated

in part:

     To be confined for 35 (days) (months) (years) (life)

     (life without eligibility for parole).

     The military judge noted that the sentence worksheet was

not in proper form and consulted with counsel for the parties

concerning the appropriate way to proceed.

     Over the objection of the defense, the military judge

informed the members that the worksheet was “ambiguous.   You

cannot do both a quantified term of years and a life without

eligibility for parole.   You cannot have those two sentences

exist.”    The military judge further explained the differences

between the authorized forms of confinement and reread some of

the standard sentencing instructions.    She also provided the

members with a clean sentence worksheet, apparently so that the

record for appeal would be clear.    The members deliberated,
United States v. Garner, No. 12-0282/AR


returned, and announced the sentence as it appeared on the

second worksheet, including the confinement portion which read:

     To be confined for __ (days) (months) (years) (life)

     (life without parole).

     Appellant did not raise this issue at the United States

Army Court of Criminal Appeals (CCA), and the CCA did not

address it in its opinion.

                          II.    Discussion

     The majority concludes that reconsideration occurred

because the court members returned with a revised sentence that

reflected neither of the two sentences to confinement appearing

on the original sentence worksheet.    United States v. Garner, __

M.J. __ (11) (C.A.A.F. 2013) (“the second sentence either

increased or decreased that sentence, and therefore

reconsideration occurred”).     The majority holds, therefore, that

the military judge should have instructed the members on

reconsideration and returned them to the deliberation room.    Id.

     The reconsideration instruction provides different

procedures depending on whether the panel wishes to reconsider

with a view to increasing or with a view to decreasing the

punishment.   See Rule for Courts-Martial (R.C.M.) 1009(e)(3);

see also Article 52(c), Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 852(c) (2006).    To reconsider a sentence with a view

to increasing the punishment, a majority of the members must


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United States v. Garner, No. 12-0282/AR


concur.    R.C.M. 1009(e)(3)(A).   To reconsider a sentence with a

view to decreasing a sentence to confinement in excess of ten

years, more than one-fourth of the members must concur.    R.C.M.

1009(e)(3)(B)(ii).

     In this case, it makes no sense to hold that the military

judge erred by not giving a reconsideration instruction.    It is

unclear to me, as it would have been to the court members,

whether the sentence to confinement ultimately adjudged was

increased from thirty-five years or decreased from life without

parole.    Under the circumstances of this case, the members would

not have known whether the vote to reconsider would have

required a majority of the members or only more than one-

quarter.   The military judge took the appropriate action and did

not err by failing to give a reconsideration instruction.




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United States v. Garner, No. 12-0282/AR


        EFFRON, Senior Judge (concurring in part and in the

result):

        I concur with the majority opinion’s conclusion that any

error in this case was not “plain or obvious” in light of the

uncertainties in the relationship between the rule and opinions

issued by our Court.    United States v. Garner, __ M.J. __ (11)

(C.A.A.F. 2013).    I also agree that the President should give

consideration to providing clarification of the law in this

area.    Garner, __ M.J. at __ (9 n.5).   In view of the lack of

clarity in the current state of the law, I would not reach the

issue of prejudice.
