

   
   
   
   U.S. v. Eversole



United States, Appellee
v.
Roger D. EVERSOLE, Sergeant First Class
United States Army, Appellant
 
No. 98-0999
Crim. App. No. 9600466
 
United States Court of Appeals for the Armed
Forces
Argued October 26, 1999
Decided June 29, 2000
COX, S.J., delivered the opinion of the
Court, in which SULLIVAN and EFFRON, JJ., joined. SULLIVAN, J., filed a
concurring opinion. CRAWFORD, C.J., and GIERKE, J., each filed a dissenting
opinion.

Counsel
For Appellant: David P. Sheldon (argued);
Captain
Patricia A. Lewis (on brief).
For Appellee: Captain Mary E. Braisted
(argued); Colonel Russell S. Estey and Lieutenant Colonel Eugene
R. Milhizer (on brief).
Military Judge: Gregory O. Varo
 


This opinion is subject
to editorial correction before publication.

Senior Judge COX delivered the opinion of the
Court.
Appellant was a sergeant first class (E-7)
on the brink of retirement eligibility at the time of his court-martial.
He was charged with sodomy, aggravated assault, bigamy, adultery, and obstruction
of justice.1 Despite the
apparent seriousness of the Charges, the convening authority referred them
to a special court-martial. Appellant pleaded not guilty to all Charges
and specifications, but a military judge sitting alone convicted him of
aggravated assault, bigamy, adultery, and obstruction of justice. The judge
sentenced appellant to reduction to E-1, confinement for 6 months, and
a bad-conduct discharge (which, except for forfeitures, is essentially
the jurisdictional limit of the court-martial, see Art. 19, Uniform
Code of Military Justice, 10 USC § 819). The convening authority approved
the sentence.
In an unpublished opinion dated June 12, 1998,
the Court of Criminal Appeals, utilizing its authority to reweigh evidence
under Article 66(c), UCMJ, 10 USC § 866(c), found the evidence of
aggravated assault insufficient, and it dismissed that Charge and its specification.
However, the court affirmed the findings of guilty of bigamy, adultery,
and obstructing
justice. Reassessing sentence, the court set
aside 3 months of appellants already-served confinement, but it approved
the remaining sentence. The granted issue concerns the appropriateness
of the Court of Criminal Appeals action in reassessing sentence, as opposed
to remanding for a rehearing on sentence. 51 MJ 358 (1999).
The legal principles applicable to this situation
have been thoroughly developed. See United States v. Boone,
49 MJ 187, 194-96 (1998); cf. United States v. Hawes, 51
MJ 258, 260 (1999). There is no question but that the Court of Criminal
Appeals has the jurisdiction, authority, and expertise to reassess court-martial
sentences, even after dismissing charges. Jackson v. Taylor, 353
U.S. 569, 576-80 (1957)(approving the then-Board of Reviews reassessment
of sentence from life to 20-years confinement, after Board set aside a
murder charge but affirmed an attempted rape charge). The operative language
of Article 66(c) conferring the power on the Courts of Criminal Appeals
to "affirm only such . . . sentence or such part or amount of the sentence,
as it finds correct in law and fact and determines, on the basis of the
entire record, should be approved," has not changed a bit since Jackson
v. Taylor, or indeed since the inception of the Uniform Code.
When a Court of Criminal Appeals reassesses
a sentence due to some error in the proceedings (including an erroneous
conviction), the stock formula is for it to affirm, if it feels that it
can, only so much of the sentence as "would have been imposed at the original
trial absent the error." United States v. Taylor, 47 MJ 322, 325
(1997). Otherwise, the court must order a rehearing on sentence. United
States v. Jones, 39 MJ 315, 317 (CMA 1994). We, in turn, are obliged
not to "disturb" the intermediate courts reassessment, except to "prevent
obvious miscarriages of justice or abuses of discretion." Id., quoting
United
States v. Dukes, 5 MJ 71, 73 (CMA 1978). Alchemistic formulae aside,
the intermediate courts ability to know what magnitude of sentence
the trial court would have imposed, absent the error, continues to bedevil
the appellate process.
The instant facts are illustrative. Appellant
made a colossal mess of his domestic life, and it began to interfere with
his military career. Then he compounded his problems with an ever-enlarging
web of deceit and deception. (See extract from unpublished opinion
of Court of Criminal Appeals, appended hereto.) Not least of the allegations
was the supposed aggravated assault on his ex-wife, which Charge the Court
of Criminal Appeals subsequently dismissed.2
Under ordinary circumstances, we might have felt quite confident that the
Court of Criminal Appeals had made a good approximation of a sentence the
trial court would have imposed. The court did, after all, halve appellants
adjudged sentence to confinement (6 months to 3).
These were not ordinary circumstances, however.
Bigamy, sodomy, adultery, and obstruction of justice, in combination, generally
are not viewed as insignificant offenses. Yet, as indicated, the Charges
were referred to a special court-martial. Plainly, already impacting the
thinking at the referral stage was the fact of appellants status as a
noncommissioned officer with 19-plus years of creditable service. That
is to say, under consideration was the fact that a punitive discharge alone
would have the effect of depriving appellant of a cumulatively huge sum
of pension money, a sum that rendered typical confinement and forfeitures
for such offenses insignificant.
Moreover, over three years later, when the
dust settled at the Court of Criminal Appeals, the overriding question
remained whether to terminate appellants imminent pension by approving
the bad-conduct discharge. With all due respect to the good faith and intentions
of the Court of Criminal Appeals, we are at a loss to know how any appellate
authority could know, with any degree of certainty, what a trial court
would have done regarding the punitive discharge under these circumstances.
Solomon, at least, could offer to split the baby. A punitive discharge
cannot be split. It is all or nothing; there is no middle ground. Indeed,
it is possible that the Court of Criminal Appeals found itself in a no-win
situation: Affirm the discharge and arguably impact appellant in a manner
all out of proportion to his offenses; or, being unable to affirm an appropriate
punishment, set aside the discharge and hand appellant an arguable
windfall.
In our judgment, this fairly unique type of
dilemma ought to be resolved by a trial court if an accuseds fundamental
right to trial is to be vindicated. Cf. United States
v. Peoples, 29 MJ 426, 429 (CMA 1990). At the same time, the Government
is protected from suffering an unjust windfall because its right to present
a sentencing case to a trial court is preserved. Consider, for example,
that a different lower court, on the same facts, might have set aside the
punitive discharge, depriving the Government of a trial forum. Accordingly,
under these unusual circumstances, we hold that the Court of Criminal Appeals
abused its discretion in reassessing appellants sentence.3
The decision of the United States Army Court
of Criminal Appeals is affirmed as to findings. The sentence, however,
is set aside. The record is returned to the Judge Advocate General of the
Army. A rehearing on sentence may be ordered.

APPENDIX
United States v. Eversole, ARMY 9600466,
Memorandum Opinion and Action on Petition for New Trial, 12 June 1998,
at 3-5:

Facts
At the time of his court-martial in March 1996,
appellant had over nineteen years of service. The charges in this case
stem from his efforts to manipulate both an estranged wife and a fiancée
while preserving his finances, his home, and his retirement.
In January 1993, appellant married a Korean
woman named Pok Sun, in Seoul, Korea. In February 1993, appellant and his
new bride, pursuant to orders reassigning him to Fort Leonard Wood, moved
into a home he previously owned in Missouri. The marriage quickly deteriorated
into one involving physical and verbal confrontation by both parties. In
October 1993, appellant moved out of his home and filed for divorce.
In November 1993, appellant moved in with Ms.
Burruss and her two daughters. On 4 December 1993, civilian authorities
arrested appellant for assaulting and hospitalizing Pok Sun. Appellant
pleaded guilty to this offense in civilian court. Appellant was also reduced
in rank by an administrative reduction board as a result of his civilian
conviction. While the record is not clear, it appears that several months
later, appellant and Pok Sun subsequently reconciled (although he continued
to live with Ms. Burruss); that Pok Sun withdrew her complaint; and that
the civilian conviction and military administrative reduction board were
withdrawn.
In June 1994, appellant and Ms. Burruss began
a sexual relationship even though appellant was still married to Pok Sun.
At a 4 November 1994 divorce proceeding, appellant postponed his divorce
from Pok Sun so that she could have gall bladder surgery at Army expense
and obtain a green card. That same day, appellant went home to Ms. Burruss
and told her his divorce was final and that they could get married.
On 30 December 1994, appellant, Ms. Burruss,
and her two children drove from Fort Leonard Wood to Arkansas, where appellant
and Ms. Burruss were married. In January 1995, Ms. Burruss learned that
appellant's divorce from Pok Sun was not final, when court papers arrived
in the mail stating that he was separated but not divorced. Nevertheless,
appellant and Ms. Burruss continued to live together. Appellant never applied
for an identification card or sought military benefits for Ms. Burruss.
Appellant's divorce from Pok Sun was final
on 3 May 1995. On 5 May 1995, without telling Ms. Burruss, appellant moved
his possessions out of Ms. Burruss's trailer and back into his home. Appellant
testified that he then went hunting and fishing for a few days by himself.
Pok Sun testified that she went with appellant during this period and that
they engaged in sexual intercourse and sodomy. In either event, Pok Sun
continued to live in appellant's home until the end of June 1995, even
though appellant was awarded sole possession of the home in the divorce
decree.
Between 5-8 May 1995, after appellant moved
out of her trailer, Ms. Burruss reported their illegal marriage to his
company commander. She specifically asked for help in getting the money
back that she spent on appellant for numerous items, including a rifle,
a tool box for his truck, fishing gear, camping equipment, jewelry, legal
expenses, $250.00 to bail him out of jail, and substantial amounts of money
to pay his bills when his pay was garnished because of unpaid Deferred
Payment Plan debts.
About 8-10 May 1995, appellant discovered that
Ms. Burruss had reported him to his commander. He explained to Ms. Burruss
the ramifications of her report and quickly reconciled with her. On 19
May 1995, appellant gave military police investigators (MPI) a detailed
sworn statement in which he admitted his adulterous relationship with Ms.
Burruss but denied that he had married her. His statement described in
detail how Ms. Burruss confessed to him that she had faked the marriage
by getting another man to forge appellant's signature on the marriage license
request and actually pose as appellant during the marriage ceremony. On
24 May 1995, Ms. Burruss gave a detailed sworn statement to MPI corroborating
appellant's incredulous story about Ms. Burruss faking their marriage in
December 1994. Subsequent handwriting analysis determined that appellant
did sign the 30 December 1994 marriage license application. At trial in
March 1996, appellant and Ms. Burruss both testified that they did get
married on 30 December 1994.
In August 1995, appellant permitted Ms. Burruss
and her children to move into his house and live with him but required
Ms. Burruss to sign a lease and pay $300.00 per month rent to him. On 19
September 1995, Pok Sun came to appellant's house and got into a physical
fight with Ms. Burruss. The fight lasted about fifteen minutes and required
police intervention. Both women received minor injuries. Pok Sun claims
that during the fight appellant kicked her in the head while Ms. Burruss
was sitting on top of her. This alleged kick is the basis of the aggravated
assault conviction. Ms. Burruss and appellant both testified that appellant
was not present during the fight. No medical evidence was presented to
corroborate a kick to the head. Neighbors gave conflicting testimony concerning
whether appellant was present during the fight. The police officer who
responded to the scene and found Ms. Burruss still sitting on Pok Sun could
not substantiate that appellant was present at the time of the fight.
On 20 September 1995, charges were preferred
against appellant for adultery, bigamy, and sodomy.*
The aggravated assault charge was preferred on 19 October 1995. Appellant
was arraigned on these charges on 8 January 1996, with a tentative trial
date set for early February 1996.
Appellant testified that he asked Pok Sun "a
couple of times a week" in January 1996 about her upcoming testimony in
his court-martial. Appellant then prepared a statement for Pok Sun to sign.
This statement retracted Pok Sun's two prior statements to military and
civilian police and corroborated appellant's version of the sodomy and
assault charges. Appellant testified that on the morning of 24 January
1996, he took this statement to Pok Sun and asked her to sign it. She declined.
Appellant then immediately took Pok Sun to Rolla, Missouri, where they
signed an application for marriage. Appellant testified that they then
returned to Pok Sun's residence, where she did sign the statement prepared
by appellant. Appellant testified that he never intended to remarry Pok
Sun and that he signed the marriage application only to ensure that Pok
Sun testify truthfully at his court-martial. Appellant did not give this
statement to his defense counsel until 4 March 1996, the day before trial
on the merits. That same day, 4 March 1996, appellant legally married Ms.
Burruss. This marriage was not disclosed to the trial judge until the sentencing
phase of the trial.
On 27 February 1996, obstruction of justice
charges were preferred against appellant for attempting to influence Pok
Sun's testimony in his upcoming court-martial during the period from on
or about 1 January 1996 to on or about 15 February 1996. The military judge
convicted appellant of obstruction of justice "by making statements and
promises to her [Pok Sun], and by applying for a license to marry her,
to induce her to wrongfully provide false information or testimony in his
own case."
* Appellant was acquitted
of the sodomy charges that were alleged to have occurred 4-6 May 1995 between
him and Pok Sun.
FOOTNOTES:
1 Violations of Articles
125, 128, and 134, Uniform Code of Military Justice, 10 USC §§
925, 928, and 934.
2 As
a collateral consequence of dismissing the aggravated assault Charge and
specification, the Court of Criminal Appeals was not obliged to deal with
appellants petition for new trial based upon an affidavit purportedly
made by a close friend of the prosecutrix, the former Mrs. Eversole. Therein,
affiant avers that the former Mrs. Eversole admitted to her that she had
lied to military investigators about appellant assaulting her, and she
asked affiant to perjure herself at appellants court-marital, which affiant
refused to do. Affiant avers that she kept quiet about these matters and
did not come forward to report them to authorities. Affiant was not a witness
at the court-martial.
3 The
Court of Criminal Appeals' decision to reassess sentence, rather than remand
to the trial court, also had the incidental effect of cutting off the convening
authority (who referred these Charges to a special court-martial in the
first instance) from reconsidering what punishment to approve minus the
aggravated assault conviction.


SULLIVAN, Judge (concurring):
I concur with the lead opinion because it makes
sense and is a fair outcome in the circumstances of this case. Moreover,
the result reached in the lead opinion is in line with the principles I
outlined in United States v. Davis, 48 MJ 494, 496 (1998) (Sullivan,
J., dissenting), and United States v. Hawes, 51 MJ 258, 261 (1999)
(Sullivan, J., dissenting).
In the instant case, Sergeant First Class Eversole
was charged with aggravated assault (kicking his first wife, Mrs. Eversole,
in the head with his combat boots), adultery, bigamy, obstruction of justice
(pressuring Mrs. Eversole about her testimony at the upcoming trial), and
sodomy (with Mrs. Eversole, based solely upon her testimony). At trial,
Eversole was acquitted of the sodomy charge but convicted of all other
charges. He was sentenced to be reduced to the grade of E-1, to be discharged
with a bad-conduct discharge, and to be confined for 6 months. On appeal,
the Court of Criminal Appeals dismissed the aggravated assault conviction
for factual insufficiency but affirmed the adultery, bigamy, and obstruction
of justice convictions. Instead of remanding for a new sentencing hearing,
the court below reassessed the sentence by affirming the same sentence
of the trial judge, except for reducing the confinement to 3 months (really
no actual relief because the confinement period had already been served
at this point).
The record clearly shows that the aggravated
assault charge was the only charge of violence in this case and, more importantly,
that this charge was considered by the prosecution at trial to be the most
serious charge. In his closing argument at the sentencing hearing, the
trial counsel stated:

Now, some misconduct is worse that others.
Here the accused committed adultery as one of them. Normally,
thats an Article 15 type of offense, or about a stripe for sentencing
purposes. However, the circumstances in this case are a little more
aggravated.

 

. . . .So even in this day and age, adultery is
sometime worth more than a stripe.

 

Bigamy is even more serious. Aggravated assault,
more serious still. Bad-conduct discharge and confinement is appropriate
for the aggravated assault alone. Kicking someone in the head with
combat boots on is very serious, and dangerous. Fortunately serious injury
did not result, but it could have. . . .

 

Finally obstruction of justice. The accused
gotor tried, anyway, to get Mrs. Eversole to recant.

(R. at 930-31) (emphasis added). Thus, when the
lower court dismissed what the prosecution considered a very significant
portion of its criminal trial, it became extremely difficult for an appellate
court to determine with any degree of certainty what sentence would have
been given if the aggravated assault had not been part of the trial. United
States v. Sales, 22 MJ 305, 308 (CMA 1986); see also
United States v. Taylor, 51 MJ 390 (1999).
Moreover, to compound this difficulty in determining
a new sentence, the record shows that the remaining obstruction of justice
charge (appellants attempt to get Mrs. Eversole to recant her pretrial
claims about sodomy and assault) was clearly tied to the sodomy charge
(acquitted at trial) and the aggravated assault charge (dismissed on appeal).
In effect, one could view the obstruction of justice charge as the "offense"
of appellant trying to get Mrs. Eversole in the pretrial stage to recant
two claims of criminal activity (sodomy and assault) that were found to
be without merit either at trial or on appeal. This unusual circumstance
alone would have made the substance and tone of appellants sentencing
argument completely different. Moreover, the record is also unusual with
respect to the adultery and bigamy charges. The record shows appellants
Commander and First Sergeant knew (and by implication approved) that appellant
moved away from Mrs. Eversole and started living with Susan (who he later
married ¾
the basis for the bigamy charge) while he was waiting for his divorce from
his first wife, Mrs. Eversole. (R. at 613-14).
The record also shows a soldier with an unusual
service record at the time of trial. Appellant was the "instructor of the
year on this post in 1994" and "the instructor of the cycle in February
of 96." (R. at 934). What is unusual is that appellant was tried on January
8, 1996, and March 5-8, 1996. As his defense counsel argued, "He hasnt
given up over this
10-month period. Hes continued to serve in
the stellar manner thats marked his career." (R. at 934). The record also
shows that at the time of sentencing, appellant was 60 days short of being
eligible for his 20-year Army retirement.
In sum, there are two main factors that made
this case a clear case for resentencing not reassessment: (1) the dismissal
of a significant part of the Governments case at trial and (2) the record,
which shows the unusual circumstances of appellant and the interconnection
of the remaining charges. As I have said before:

The court below may adjust the sentence based
on an error only if it can discern the extent of the errors effect on
the sentencing authority.

United States v. Davis, 48 MJ at 497 (Sullivan,
J., dissenting), citing United States v. Sales, 22 MJ at 308.
Robert Browning, the English poet, said:

Thats the wise thrush; he sings each song
twice over.
Lest you should think he never could recapture
the first fine careless rapture.

Home Thoughts From Abroad (1845).
The Court of Criminal Appeals could never recapture
a true sentence with certainty in a case like this. It could never capture
the spirit, the mood, and the emotional appeal of the facts in this case
in the unique way a resentencing hearing could provide. Appellant deserves
a fair sentence for his crimes, but the sentence must be one in the proper
context of a new sentencing argument before an unbiased sentencing authority
who will judge appellant on his significantly altered criminal case. Accordingly,
I join the lead opinion in ordering a resentencing hearing and a new full
clemency process.


CRAWFORD, Chief Judge (dissenting):
"In no instance ... may an appellate
authority substitute its own judgment as to the appropriateness of the
sentence, notwithstanding the error and its effect on the sentencing authority
in arriving at that sentence." United States v. Reed, 33 MJ 98,
99 (CMA 1991), citing United States v. Suzuki, 20 MJ 248, 249 (CMA
1985)(emphasis added); see United States v. Cook, 48 MJ 434,
438 (1998); see also United States v. Maxwell, 45
MJ 406, 427 (1996). I concur completely with Judge Gierke that the majority
has overlooked precedent and substituted its own judgment for that of the
experienced, mature, and able judges of the Court of Criminal Appeals.
See
United States v. Cook, 46 MJ 37, 39 (1997); United States v.
Hawes, 51 MJ 258, 260 (1999).
I am in total agreement with the firmly rooted
legal principles set forth by the majority which must control review of
this court-martial by both the Court of Criminal Appeals and our Court.
We will overturn a sentence reassessment decision of a Court of Criminal
Appeals only "to prevent obvious miscarriages of justice or abuses of discretion."
United
States v. Jones, 39 MJ 315, 317 (CMA 1994); see Cook,
48 MJ at 437; United States v. Boone, 49 MJ 187, 195 (1998). Having
examined every aspect of this record of trial in light of our legal precedent,
I can find not one iota of evidence to indicate an obscure, let alone an
obvious miscarriage of justice, or any abuse of discretion in the Army
Courts approval of a sentence that includes a punitive discharge.
This Court has consistently recognized the
expertise of the judges on the Courts of Criminal Appeals to reassess sentences
after finding error. See United States v. Peoples, 29 MJ
426, 429 (CMA 1990); Jones, 39 MJ at 317; see generally
United States v. Lacy, 50 MJ 286 (1999). In fact, one can conclude
that the Courts of Criminal Appeals judges are better skilled than this
Court in the art of judicial sentencing because of their unparalleled responsibility
under Article 66(c), UCMJ, 10 USC § 866(c), as well as their prior
roles as advisors to convening authorities.
There has been no finding that the three Court
of Criminal Appeals judges were inexperienced or otherwise unequal to the
task of performing their statutory duties pursuant to Article 66. As we
have previously opined: "It is undisputed that military judges are presumed
to know the law and to follow it, absent clear evidence to the contrary....
Certainly, appellate judges of the Courts of Criminal Appeals are deserving
of no less a presumption." United States v. Mason, 45 MJ 483, 484
(1997)(citations omitted). Accordingly, when three judges apply the principles
that have been handed down by this Court to the facts of a particular case,
see
United States v. Sales, 22 MJ 305 (CMA 1986), where is the abuse
of discretion?
Legal precedent is instructive. In Cook,
48 MJ at 434, the accused was convicted by a special court-martial of violating
a lawful general regulation by possessing a proscribed knife and possession
of marijuana with intent to distribute. The Army Court of Criminal Appeals
set aside the knife offense, affirmed the marijuana offense, and affirmed
the adjudged and approved sentence without further modification. Although
we remanded the case for clarification, we unanimously concluded that a
Court of Criminal Appeals could reassess the approved sentence (and by
implication, affirm that sentence), using Suzuki and Sales
guidelines, despite dismissal of a charge which arguably was as serious
as the remaining charge. On remand, the Army Court of Criminal Appeals,
in an unpublished opinion dated February 12, 1999, reassessed and affirmed
the approved sentence.
In United States v. Davis, 48 MJ 494
(1998), the accused was convicted of assault with intent to commit rape
and use of marijuana. On appeal, the Air Force Court of Criminal Appeals
found error, voided the conviction for assault with intent to commit rape,
but affirmed the lesser-included offense of indecent assault. The lower
court then reassessed and affirmed the adjudged sentence, even though the
maximum punishment which appellant faced after the appellate courts action
was reduced from 22 to 7 years. Again, the majority of this Court found
no abuse of discretion or miscarriage of justice in Court of Criminal Appeals
action.
In Hawes, 51 MJ at 258, a second lieutenant
was convicted of using marijuana and fraternization and sentenced to a
dismissal, reprimand, and forfeiture of pay. On appeal, the Air Force Court
of Criminal Appeals set aside the fraternization conviction but affirmed
the adjudged sentence. Again, four members of our court found no abuse
of discretion.
My analysis of this Courts cases from Suzuki,
20 MJ at 248, through United States v. Taylor, 51 MJ 390 (1999),
impresses me with one fact: unless the Court of Criminal Appeals considers
some improper, extraneous matter during its sentence assessment (Peoples,
29 MJ at 426), or attempts to fashion a sentence when the record is devoid
of the evidence necessary to this process (Boone, 49 MJ at 187),
we will not overturn the lower courts judgment. See, e.g.,
Jones,
39 MJ at 315; United States v. Poole, 26 MJ 272 (CMA 1988). Why
are we reversing the Court of Criminal Appeals in this case?
The majority asks how any appellate authority
could know, with any degree of certainty, what punishment the trial court
would have awarded under these circumstances. It is not a question of certainty
of sentence but one of certainty in magnitude. "[T]he standard for reassessment
is not what sentence would be imposed at a rehearing, but rather, would
the sentence have been at least of a certain magnitude."
Taylor,
51 MJ at 391.
Appellant elected to be tried by military judge
alone. In reassessing the sentence, the appellate courts challenge was
to determine the maximum sentence a trial judge (and former appellate judge),
not a panel of members, would have imposed absent convicting appellant
of aggravated assault. The court below knew that the trial judge had not
only sentenced appellant to a bad-conduct discharge (despite appellants
pleas to save his retirement), but had also imposed the maximum term of
confinement. It also knew the trial judge had emphasized on the record
that appellant was to suffer no forfeiture of pay or allowances. As this
Court has gained familiarity with the opinions and views of the various
judges on the Courts of Criminal Appeals over the passage of time, I believe
it is equally fair to infer that the same is true of the lower appellate
courts and the trial judges whose records are reviewed. I can find absolutely
no abuse of discretion in the Courts conclusion that the trial judge would
have, at least, sentenced this appellant to a bad-conduct
discharge and confinement for 3 months.
Appellants defense counsel has set forth several
alternative reasons why the lower court abused its discretion. None of
these reasons are persuasive and in fact are misleading. Contrary to defense
counsel's contention, trial counsel never argued that the aggravated assault
charge was the most serious. As found by the Court of Criminal Appeals,
"The gravaman of appellants misconduct was his repeated attempts during
a six-week period to obstruct justice (a five-year offense), not the one-time
aggravated assault (a three-year offense)." Unpub. op. at 7.
Having failed to convince the Court below that
adultery, bigamy, and obstruction of justice did not warrant a punitive
discharge, counsel argues alternatively that the Court somehow treated
appellant unfairly by reversing the aggravated assault conviction so as
to preclude appellant from introducing an extraneous affidavit concerning
the supposedly perjurous testimony of Pok Sun Eversole.
This approach, which the majority opinion countenances,
___ MJ at (5 n.3), is equally nonmeritorious. The court below acknowledged
the conflicting testimony concerning the obstruction of justice charge
and said, "[W]e do not believe appellant." Unpub. op. at 7. Whether Pok
Sun Eversole tried to influence one of her friends improperly is absolutely
irrelevant and should not in any way enter into this Courts consideration
of whether the court below abused its discretion.
Finding no abuse of discretion, I have examined
the reassessed sentence to ensure it is "appropriate in relation to the
affirmed findings of guilty so as to assure that the sentence is no greater
than that which would have been imposed if the prejudicial error had not
been committed." Davis, 48 MJ at 495, quoting Poole, 26
MJ at 274-75, quoting Suzuki, 20 MJ at 249.
I find no hint of a miscarriage of justice
in this case. The military judge who imposed the sentence of this court-martial,
the convening authority who approved the adjudged sentence without reduction,
and the Court of Criminal Appeals had before them the evidence of appellants
misconduct as well as his service record. This service record shows, inter
alia, an Army career spent at Fort Leonard Wood, Missouri, punctuated
by a 3-year tour in Germany and a 12-month assignment in Korea; a reduction
from sergeant to specialist in 1982; appellants promotion to sergeant
again 11 months later; a GT score of 118; and four awards of the Army Commendation
Medal. I find nothing in appellants service to our nation that either
singularly or collectively convinces me that the lower courts reassessed
sentence has resulted in a miscarriage of justice.
Finally, I note that appellant was on the verge
of retirement eligibility. His right to retirement pay had not vested.
Appellants attempts to gain retirement status prior to the completion
of 20 years of service were unsuccessful. There is no evidence to indicate
that after serving his sentence to confinement, appellant returned to active
duty and completed the period of time necessary to be retirement eligible.
To speculate that this appellant has somehow suffered a miscarriage of
justice because he was denied retirement benefits is as wrong as it would
be to speculate that the Secretary of the Army would withhold retirement
until the Army successfully eliminated appellant under appropriate administrative
procedures. In short, appellant has absolutely failed to convince me that
he has suffered any miscarriage of justice.
Contrary to the opinion of the majority, this
case does not involve "unusual circumstances." ___ MJ at (6). The
convening authority referred the case to a special court-martial, empowered
to judge a bad-conduct discharge. We need not speculate why these serious
offenses were referred to a special court-martial. The facts show, though,
that the military judge sentenced appellant to the jurisdictional maximum
of confinement and awarded him a bad-conduct discharge as a result of his
conviction for adultery, bigamy, aggravated assault, and obstruction of
justice. We know that the lower court dismissed one of the charges and
reassessed the sentence in accordance with the law of this Court. In so
doing, the judges from the Court of Criminal Appeals found that a bad-conduct
discharge would have been an inevitable sentence of the Court. See
Jones, 39 MJ at 315.
As both the majority and the dissent agree,
appellant was engaged in trickery, deceit, and deception in his efforts
to subvert the court-martial process. In light of the evidence of record,
to include the fact that appellant had served 19 years and 10 months of
active duty prior to his court-martial, I can find no abuse of discretion
by the Court of Criminal Appeals nor any miscarriage of justice. Accordingly,
I dissent.


GIERKE, Judge (dissenting):
With the greatest respect for my colleagues
in the majority, I fear that they have substituted their judgement for
the court below, under the guise of finding an abuse of discretion. They
have engaged in assessment of sentence appropriateness, a function within
the exclusive province of the Court of Criminal Appeals, opining that the
sentence was "all out of proportion to his offenses. See United
States v. Jones, 39 MJ 315, 317 (CMA 1994). Finally, they have speculated,
with no basis in the record, that the court below found itself in a "no-win
situation." ___ MJ at (6). For all these reasons, I must dissent.
The court below concluded that the court-martial
would have imposed a bad-conduct discharge even if appellant had not been
convicted of an aggravated assault by kicking his ex-wife. The kicking
was alleged to have occurred during a brawl between appellants ex-wife
and his paramour, with whom he had entered into a bigamous marriage. The
court below reassessed the sentence, specifically citing United States
v. Sales, 22 MJ 305 (CMA 1986), cut the period of confinement adjudged
in half, and affirmed the bad-conduct discharge. Sales permits a
Court of Criminal Appeals to reassess and affirm a sentence if it can be
reasonably certain that the court-martial would have imposed a sentence
of at least a certain level in the absence of the error at trial. 22 MJ
at 308. The court below determined that appellant would have received a
bad-conduct discharge even if he had not been convicted of kicking his
ex-wife. My colleagues have concluded that affirming the bad-conduct discharge
was an abuse of discretion.
Abuse of discretion means that the court below
has a range of choice and will not be reversed as long as it stays within
that range. See Kern v. TXO Production Corp., 738 F.2d 968,
971 (8th Cir. 1984); United States v. Wallace, 964 F.2d
1214, 1217 n. 3 (D.C. Cir. 1992). Our duty is to ask "whether the decision
[of the court below] is legal in the sense of being within the prescribed
boundaries which define the area of discretion." United States v. Siroky,
44 MJ 394, 398 n. 1 (1996). In the area of sentence reassessment, the area
of discretion enjoyed by a Court of Criminal Appeals is very broad. The
legal test on appeal is whether the sentence reassessed by the Court of
Criminal Appeals is "no greater than that which would have been imposed
if the prejudicial error had not been committed." United States v. Poole,
26 MJ 272, 274 (CMA 1988).*
We will overturn that courts decision only "to prevent obvious miscarriages
of justice or abuses of discretion." United States v. Davis, 48
MJ 494, 495 (1998), quoting Jones, 39 MJ at 317.
The evidence before the court-martial showed
that appellant was near retirement, but that his conduct during the preceding
2 years had been less than stellar. In December of 1993, slightly more
than 2 years before his court-martial, appellant was convicted in a civilian
court of assaulting his wife and injuring her to the extent that she required
hospitalization. The court-martial was aware that appellant was administratively
reduced in rank because of his civilian conviction. The court-martial was
aware that appellant became sexually involved with another woman, that
he deceived that woman into believing that he was divorced, that he entered
into a bigamous marriage with that woman in December of 1994.
The court-martial was aware that, after appellant
was charged with adultery, bigamy, sodomy, and aggravated assault, he prepared
a false statement for his ex-wife to sign. He applied for a marriage license
with his ex-wife, in order to deceive his ex-wife into believing that he
intended to remarry her, and to convince her to testify falsely at his
court-martial.
Under these facts, the allegation that appellant
kicked his ex-wife while she was engaged in a brawl with his paramour was
an insignificant piece of appellants pattern of deceit, deception, and
efforts to pervert the criminal justice process. The court below applied
the Sales test and found that appellants offenses and disciplinary
record made it reasonably certain that the court-martial would have imposed
a bad-conduct discharge, even if appellant had not been convicted of kicking
his ex-wife. Under these facts, I see no obvious miscarriage of justice
and no abuse of discretion.
FOOTNOTE:
*The
majority relies in part on the decision of the convening authority to refer
the charges to a special court-martial. In my view, what the convening
authority did or would have done is irrelevant and is not part of sentence
reassessment. The only question is what the court-martial would have done
in the absence of the error.


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