UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           COOK, CAMPANELLA, and HAIGHT
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Sergeant DAVID E. GRAHAM
                           United States Army, Appellant

                                    ARMY 20110422

              Seventh U.S. Army Joint Multinational Training Command
                    Jeffrey R. Nance, Military Judge (Arraignment)
                     Christopher Fredrikson, Military Judge (Trial)
              Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Jacob D. Bashore,
JA; Captain John L. Schriver, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Elisabeth A. Claus, JA; Captain
Sean Fitzgibbon, JA (on brief).


                                    25 October 2013
                              ------------------------------------
                                SUMMARY DISPOSITION
                              ------------------------------------

Per Curiam:

       A panel composed of officer and enlisted members sitting as a special court-
martial convicted appellant, contrary to his pleas, of three specifications of assault
consummated by battery * and one specification of soliciting another to commit an
offense (assault), in violation of Articles 128 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 928 and 934 (2006) [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a bad-conduct discharge, confinement
for three months, forfeiture of $978.00 pay per month for three months, and
reduction to the grade of E-1. The convening authority awarded appellant one day
of confinement credit.


*
 After findings, but prior to sentencing, the military judge dismissed one of the
assault specifications on a motion of the government.
GRAHAM—ARMY 20110422

       The case is now before this court for review under Article 66, UCMJ.
Appellant raises two assignments of error to this court and appellant personally
raises matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
Appellant’s second assignment of error warrants discussion and relief. The
remaining assignment of error and those matters personally raised by appellant are
without merit.

                             LAW AND DISCUSSION

           Failure to Allege the Terminal Element of Article 134, UCMJ

       In consideration of our superior court’s decision in United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012), we are compelled to set aside the findings
of guilty to Charge II and its Specification, soliciting another to commit an offense
under Article 134, UCMJ.

        Here, the Specification of Charge II does not allege the Article 134, UCMJ,
terminal element of conduct that is prejudicial to good order and discipline (Clause
1) or of a nature to bring discredit upon the armed forces (Clause 2). “Where, as
here, a specification neither expressly alleges nor necessarily implies the terminal
element, the specification is defective.” United States v. Gaskins, 72 M.J. 225, 232
(C.A.A.F. 2013) (citing United States v. Fosler, 70 M.J. 225, 229–30 (C.A.A.F.
2011)). However, appellant did not object to the form of the specification at trial,
and “where defects in a specification are raised for the first time on appeal,
dismissal of the affected charges or specifications will depend on whether there is
plain error—which, in most cases will turn on the question of prejudice.” United
States v. Humphries, 71 M.J. 209, 213–14 (C.A.A.F. 2012) (citing United States v.
Cotton, 535 U.S. 625, 631–32 (2002)). Therefore, appellant must demonstrate “the
Government’s error in failing to plead the terminal element of Article 134, UCMJ,
resulted in material prejudice to [appellant’s] substantial, constitutional right to
notice.” Humphries, 71 M.J. at 215; UCMJ art. 59(a). To assess prejudice, “we
look to the record to determine whether notice of the missing element is somewhere
extant in the trial record, or whether the element is ‘essentially uncontroverted.’”
Id. at 215–16 (citing Cotton, 535 U.S. at 633; Johnson v. United States, 520 U.S.
461, 470 (1997)).

       After thoroughly reviewing the record, we do not find any indication appellant
was on notice of the missing terminal element required to prove the solicitation
offense prior to the government’s closing argument. Additionally, the government
conceded this point in their response to appellant’s assignment of error. Therefore,
based on a totality of the circumstances in this case, we are convinced appellant was
not placed on sufficient notice of the government’s theory as to which clause(s) of
Article 134, UCMJ, he violated. As a result, appellant’s substantial right to notice
was materially prejudiced by the government’s failure to allege the terminal



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GRAHAM—ARMY 20110422

element. See UCMJ art. 59(a). Accordingly, the findings of guilty of Charge II and
its Specification are set aside

                            Reassessment of the Sentence

       We must now consider and determine whether we can appropriately reassess
the sentence after setting aside the findings of Charge II and its Specification. If
this court “can determine that, absent the error, the sentence would have been at
least of a certain magnitude, then [we] may cure the error by reassessing the
sentence instead of ordering a sentencing rehearing.” United States v. Doss, 57 M.J.
182, 185 (C.A.A.F. 2002) (citing United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986)). A “dramatic change in the ‘penalty landscape’” lessens our ability to
reassess a sentence. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003).
Ultimately, a sentence can be reassessed only if we “confidently can discern the
extent of the error’s effect on the sentencing authority’s decision.” United States v.
Reed, 33 M.J. 98, 99 (C.M.A. 1991). Because the error in this case is of a
constitutional magnitude, we “must be satisfied beyond a reasonable doubt that . . .
reassessment [can cure] the error.” Doss, 57 M.J. at 185 (citing Sales, 22 M.J. at
307). Additionally, we must determine that a sentence we propose to affirm is
“appropriate,” as required by Article 66(c), UCMJ. In short, a reassessed sentence
must be purged of prejudicial error and also must be appropriate for the offense and
the offender involved. Sales, 22 M.J. at 307–08.

       In this case, the sentencing landscape does not change with the setting aside
of Charge II and its Specification. Viewing the remaining convictions in this
context, we are convinced that we can reassess the sentence from appellant’s trial.
We have considered the entire record and the principles of Sales and United States v.
Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker
in his concurring opinion in Moffeit. Among other matters, we took into account
appellant’s length of service, his family, and his service record. We also considered
the serious nature of appellant’s remaining convictions and that they still carried a
potential combined sentence to confinement of one year. Thus, the maximum
penalty at the special court-martial did not change. In light of the foregoing, we are
confident beyond a reasonable doubt that appellant would have received a sentence
on the remaining convictions of no less than that approved by the convening
authority.

                                   CONCLUSION

       The findings of guilty of Charge II and its Specification are set aside. The
remaining findings of guilty are AFFIRMED. After reassessing the sentence on the
basis of the error noted above, the submissions of the parties, and the entire record,
the sentence is AFFIRMED. All rights, privileges, and property, of which appellant
has been deprived by virtue of that portion of the findings set aside by this decision,
are ordered restored. See UCMJ art. 75(a).


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GRAHAM—ARMY 20110422



                       FOR THE COURT:




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




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