UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                  Lieutenant Colonel KENNETH A.R. PINKELA
                         United States Army, Appellant

                                    ARMY 20120649

             Headquarters, U.S. Army Military District of Washington
              Denise R. Lind and Michael J. Hargis, Military Judges
    Lieutenant Colonel Brian A. Hughes, Acting Staff Judge Advocate (pretrial)
           Colonel Corey L. Bradley, Staff Judge Advocate (post-trial)


For Appellant: Mr. Philip D. Cave, Esq.; Major Aaron R. Inkenbrandt, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
Scott L. Goble, JA (on supplemental brief); Major A.G. Courie III, JA; Major John
Choike, JA; Captain Scott L. Goble, JA (on brief).


                                      7 January 2016
                        -------------------------------------------------
                        SUMMARY DISPOSITION ON REMAND
                        -------------------------------------------------
Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of willful disobedience of a superior
commissioned officer, one specification of abusive sexual contact, one specification
of aggravated assault, one specification of conduct unbecoming an officer, and one
specification of reckless endangerment in violation of Articles 90, 120, 128, 133,
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 920, 928, 933, 934
(2006) [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a dismissal and confinement for one year.

      On 14 November 2014, we affirmed the findings and sentence in this case.
United States v. Pinkela, ARMY 20120649, 2014 CCA LEXIS 852 (Army Ct. Crim.
App. 14 Nov. 2014) (summ. disp.). On 22 April 2015, the Court of Appeals for the
Armed Forces granted appellant’s petition for grant of review and summarily
vacated our earlier decision. United States v. Pinkela, 74 M.J. 358 (C.A.A.F. April
22, 2015) (summ. disp.). Our superior court returned the record of trial to this court
PINKELA—ARMY 20120649

for reconsideration in light of United States v. Gutierrez, 74 M.J. 61 (C.A.A.F.
2015). Id.

       We reconsidered our decision pursuant to the order of our superior court and
affirmed appellant’s convictions. United States v. Pinkela, ARMY 20120649, 2015
CCA LEXIS 254 (Army Ct. Crim. App. 11 Jun. 2015) (summ. disp.). Our superior
court then reversed appellant’s convictions for reckless endangerment and
aggravated assault, and affirmed a finding of guilty to assault consummated by a
battery as a lesser included offense of aggravated assault. Our superior court
affirmed the remaining findings of guilty and remanded the case to our court “to
either reassess the sentence based on the affirmed findings or order a sentence
rehearing.” United States v. Pinkela, 75 M.J.__ (C.A.A.F. 4 Nov. 2015)(summ.
disp.). After considering the additional pleadings of the parties, we reassess
appellant’s sentence below. *

                               Sentence Reassessment

      In determining whether we can reassess the sentence, we apply several non-
exhaustive factors:

             (1) Dramatic changes in the penalty landscape and
             exposure.

             (2) Whether an appellant chose sentencing by members or
             a military judge alone. As a matter of logic, judges of the
             courts of criminal appeals are more likely to be certain of
             what a military judge would have done as opposed to
             members. This factor could become more relevant where
             charges address service custom, service discrediting
             conduct or conduct unbecoming.

             (3) Whether the nature of the remaining offenses capture
             the gravamen of criminal conduct included within the
             original offenses and, in related manner, whether
             significant or aggravating circumstances addressed at the
             court-martial remain admissible and relevant to the
             remaining offenses.




*
 We have considered Appellant’s additional submissions under United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit.
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             (4) Whether the remaining offenses are of the type that
             judges of the courts of criminal appeals should have the
             experience and familiarity with to reliably determine what
             sentence would have been imposed at trial.

United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (internal citations
omitted).

       First, due to the military judge’s merger for sentencing, appellant faced a
maximum punishment of dismissal, fifteen years confinement, and total forfeiture of
pay and allowances prior to the reversal of his convictions for aggravated assault
and reckless endangerment. In light of the military judge’s merger, appellant still
faces a maximum punishment of dismissal, thirteen years confinement, and total
forfeiture of pay and allowances. This does not constitute a dramatic change in the
penalty landscape. Second, appellant was sentenced by a military judge. We are
confident we can discern what punishment a military judge would adjudge in this
case. Third, appellant’s criminal conduct remains significant: he is convicted of
two specifications of willful disobedience of a superior commissioned officer, one
specification of abusive sexual contact, one specification of conduct unbecoming an
officer, and one specification of assault consummated by a battery. Fourth, we have
familiarity and experience with the remaining offenses to reliably determine what
sentence would have been imposed at trial. After weighing these factors, we are
confident that we can reassess the sentence in this case.

                                  CONCLUSION

      On consideration of the entire record, the finding of guilty of the
Specification of Charge IV is set aside and dismissed with prejudice. The court
affirms only so much of the Specification of Charge I as follows:

             In that [appellant], U.S. Army, did, at or near Arlington,
             Virginia, on or about 28 December 2008, commit an
             assault upon First Lieutenant CH, by exposing him to the
             Human Immunodeficiency Virus (HIV), by having
             unprotected anal sex with First Lieutenant CH.

The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of Winckelmann, 73 M.J. at 15-16, we affirm
only so much of the sentence as provides for a dismissal and confinement for eleven
months. All rights, privileges, and property, of which appellant has been deprived
by virtue of that portion of his sentence set aside by this decision, are ordered
restored. See UCMJ arts. 58b(c) and 75(a).

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                         FORTHE
                        FOR  THECOURT:
                                 COURT:




                         MALCOLM H. SQUIRES, JR.
                        MALCOLM H. SQUIRES, JR.
                         Clerk of Court
                        Clerk of Court




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