UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BROOKHART, SALUSSOLIA, and SCHASBERGER
Appellate Military Judges

UNITED STATES, Appellee
v.
Specialist LUKE D. ENGLISH
United States Army, Appellant

ARMY 20160510

Headquarters, Fort Bliss
Michael J. Hargis and Kurt J. Bohn, Military Judges
Colonel Charles C. Poché, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Bryan T.
Osterhage, JA; Captain Heather M. Martin, JA (on brief); Lieutenant Colonel
Tiffany M. Chapman, JA; Major Todd W. Simpson, JA; Captain Heather M. Martin,
JA (on reply brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Austin Fenwick, JA; Captain
KJ Harris, JA (on brief).

8 November 2019

 

SUMMARY DISPOSITION ON REMAND

 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
Per Curiam:

On remand from our superior court, appellant’s case is before us for a
sentence reassessment. After considering the totality of the circumstances presented
by appellant’s case, as well as the factors outlined in United States v. Winckelmann,
73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08
(C.M.A. 1986), we find that we can reassess appellant’s sentence, and provide
sentence relief in the decretal paragraph.

A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of attempted rape, four specifications of
rape, one specification of sexual assault, six specifications of assault consummated
by a battery, one specification of kidnapping, one specification of communicating a
threat, and two specifications of obstructing justice, in violation of Articles 80, 120,
ENGLISH—ARMY 20160510

128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920, 928, and
934 [UCMJ]. The military judge sentenced appellant to a dishonorable discharge,
confinement for twenty-three years, and reduction to E-1. The convening authority
approved the sentence as adjudged, and credited appellant with 152 days against the
sentence to confinement.

In our previous review of this case pursuant to Article 66, UCMJ, this court
set aside the findings of guilty for four specifications of assault consummated by a
battery, and affirmed the remaining findings of guilty.! In doing so, this court
reassessed appellant’s sentence, affirming a sentence of a dishonorable discharge,
confinement for twenty-two years, and reduction to E-1. See United States v.
English, 78 M.J. 569 (Army Ct. Crim. App. 2018).

Our superior court granted review of appellant’s case, set aside and dismissed
one specification of rape, and remanded appellant’s case to this court for a sentence
reassessment.” See English, 79 M.J. at 122-23. On remand, appellant elected not to
file additional pleadings related to the sentence reassessment.

BACKGROUND

In 2015, appellant was stationed at Fort Bliss where he lived with his second
wife, DE, along with two children.? In early August 2015, appellant and DE
separated. They had no more sexual contact, but continued living in the same home
until DE found other housing. Appellant’s girlfriend, JM, was also living in the
house at that time.

DE separated her bank accounts from appellant before making arrangements
to move out. This action angered appellant, and he began threatening her with
violence. Later in August, appellant sexually assaulted DE in the shower of their

 

' This court affirmed the finding of guilty for Specification 6 of Charge I by
excepting the words “to wit: grabbing her head with his hand.” Our affirmance of
Specification 6 of Charge I with excepted language was the subject of our superior
court’s review in United States v. English, 79 M.J. 116 (C.A.A.F. 2019).

* This court will reassess appellant’s sentence for the findings of guilty that remain,
that is, one specification of attempted rape, three specifications of rape, one
specification of sexual assault, two specifications of assault consummated by a
battery, one specification of kidnapping, one specification of communicating a
threat, and two specifications of obstructing justice.

3 One of the children was appellant’s and DE’s biological daughter, and another was
appellant’s biological daughter (DE’s step daughter).
ENGLISH—ARMY 20160510

home. He told her that she was “raping” him financially and he wanted her to feel
the same. She did not initially report the sexual assault.

On 18 September, appellant asked DE’s permission to allow JM to style his
daughter’s hair. DE said no, but appellant told JM to style his daughter’s hair
anyway, leading JM to believe DE had authorized it. Upon learning of this, DE
became upset and texted JM, advising her that appellant was untrustworthy. JM then
ended her relationship with appellant.

When DE returned to the house from dinner that night, appellant, dressed in
his complete Class A uniform, was in the yard burning their computer. Appellant,
who was noticeably intoxicated, threatened to commit suicide and then threatened to
kill DE because of her involvement in the end of his relationship with JM. In the
presence of their three-year-old daughter, appellant dragged and beat DE before
restraining her with duct tape. After this, appellant sent a photograph of DE, bound
with the duct tape, to JM. Among other physical and sexual offenses, appellant then
choked, raped, and anally sodomized DE.

Later that night, appellant cut DE free from the duct tape and threatened her
not to call the police. Nevertheless, DE fled the house with her daughter, hid in a
neighbor’s yard, and called 911 to report the kidnapping, assaults, and rape. The
police responded and found appellant in the house. The police informed the Army
Criminal Investigative Command (CID), which immediately began investigating the
incident. Several days later, appellant urged DE to recant her testimony about the
abuse that had occurred on 18 September.

LAW AND DISCUSSION

Courts of Criminal Appeals are authorized to conduct sentence reassessments.
Winckelmann, 73 M.J. at 13-14 (citing Jackson v. Taylor, 353 U.S. 567, 577 (1957)).
“TI]f the court can determine to its satisfaction that, absent any error, the sentence
adjudged would have been of at least a certain severity, then a sentence of that
severity or less will be free of the prejudicial effects of error... .” Id. at 15
(quoting Sales, 22 M.J. at 308).

Courts of Criminal Appeals must consider the “totality of the circumstances
presented” by appellant’s case when conducting sentence reassessments. Jd. Among
the circumstances, courts should consider: (1) dramatic changes in the penalty
landscape and exposure; (2) whether appellant chose sentencing by members or by
military judge alone; (3) whether the nature of the remaining offenses capture the
gravamen of the criminal conduct originally charged; and (4) whether the remaining
offenses are the type that Courts of Criminal Appeals are familiar with and can
reasonably determine what sentence would have been imposed at trial. Jd. at 15-16.
ENGLISH—ARMY 20160510

After considering the totality of the circumstances of appellant’s case, along
with the factors outlined by our superior court, we find that we are able to reassess
appellant’s sentence.

In evaluating the Winckelmann factors, we first find no change in the penalty
landscape, as the potential maximum sentence to confinement remains life without
eligibility for parole, a sentence far greater than that adjudged. While one finding of
guilty carrying a maximum sentence of life without eligibility for parole was set
aside and dismissed, three remain. Second, we note appellant elected to be tried by
a military judge sitting alone. Third, we find the nature of the remaining offenses
capture the gravamen of appellant’s criminal conduct. Appellant still stands
convicted of raping and anally sodomizing DE while she was bound with duct tape.
Finally, based on our experience as judges on this court, we are familiar with the
remaining offenses so that we may reliably determine what sentence would have
been imposed at trial based on the remaining specifications.

Based on our analysis, we are confident the sentence to confinement would
have extended to at least twenty years had the factfinder found appellant not guilty
of Specification 6 of Charge I and Additional Charge I and its specifications.

CONCLUSION

As noted in this court’s and our superior court’s reviews of appellant’s case,
the findings of guilty, except for Specification 6 of Charge I and Additional Charge I
and its specifications, are AFFIRMED.

Having conducted a sentence reassessment, we AFFIRM a sentence of a
dishonorable discharge, confinement for twenty years, and reduction to E-1.

FOR THE COURT: , +
"loke
MALCOLM H. SQUIRES, JRE

Clerk of Court
