                        UNITED STATES, Appellee

                                     V.

            Allen O. DOSS, Machinist’s Mate First Class
                        U.S. Navy, Appellant


                               No. 01-0686


                         Crim. App. No. 99-1380



       United States Court of Appeals for the Armed Forces

                        Argued January 23, 2002

                        Decided August 23, 2002

    GIERKE, J., delivered the opinion of the Court, in which
      EFFRON and BAKER, JJ., joined. CRAWFORD, C.J., filed
      an opinion concurring in part and dissenting in part.
           SULLIVAN, S.J., filed a dissenting opinion.

                                  Counsel

For Appellant:    Lieutenant Travis J. Owens, JAGC, USNR (argued).

For Appellee: Lieutenant Ross W. Weiland, JAGC, USNR (argued);
   Colonel Rose M. Favors, USMC (on brief).
Military Judge:    Moira D. Modzelewski


  This opinion is subject to editorial correction before final publication.
United States v. Doss, No. 01-0686/NA


      Judge GIERKE delivered the opinion of the Court.

      A military judge sitting as a general court-martial

convicted appellant, pursuant to his pleas, of assault with a

dangerous weapon and assault consummated by a battery, in

violation of Article 128, Uniform Code of Military Justice

(UCMJ), 10 USC § 928.      The military judge also convicted

appellant, contrary to his pleas, of soliciting another person to

murder his wife, in violation of Article 134, UCMJ, 10 USC § 934.

      The military judge sentenced appellant to a dishonorable

discharge, confinement for eight years, total forfeitures, and

reduction to the lowest enlisted grade.      In accordance with a

pretrial agreement, the convening authority approved the adjudged

sentence but suspended all confinement in excess of five years

for a period of ten years.

      The Court of Criminal Appeals affirmed the findings in an

unpublished decision.      However, it held that appellant’s trial

defense counsel was ineffective during the sentencing hearing.

Therefore, the court reassessed the sentence and affirmed “only

such portion of the sentence as extends to a dishonorable

discharge, confinement for seven years, reduction to E-1, and

forfeiture of all pay and allowances.”      Unpub. op. at 16.

      This Court granted review of the following issue:

      WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT’S
      SENTENCE IN THE ABSENCE OF A COMPLETE RECORD IN EXTENUATION
      AND MITIGATION OR BY FAILING TO APPLY THE PROPER STANDARD
      FOR SENTENCE REASSESSMENT TO REMEDY A TRIAL ERROR OF
      CONSTITUTIONAL MAGNITUDE. SEE UNITED STATES V. BOONE, 49 MJ
      187, 195, AND 197-99 (1998).

For the reasons set out below, we set aside the sentence and

authorize a sentence rehearing.



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United States v. Doss, No. 01-0686/NA


                                 Background

      During the sentencing hearing, appellant made a lengthy

unsworn statement that focused on his mental and emotional

condition at the time of the offenses.          On April 19, 1989, while

he was assigned aboard the battleship USS IOWA, an ordnance

explosion in a gun turret 30 feet from his work station killed 47

sailors inside the turret.       Appellant’s work area immediately

filled with smoke.      He ordered the eight sailors under his

supervision to don emergency escape breathing devices and to

evacuate their work area.       He went to the burning turret and

helped to extinguish the fire.          When the fire was out, he was

second in line to enter the turret.          He entered the melted

interior of the turret and began filling a canvas bag with body

parts.    He carried two bags of body parts to the ship’s medical

office.

      Appellant knew ten of the sailors who were killed.

On his second trip back from the medical office, he saw a

friend’s head fall from a body bag onto the deck.          At that point,

appellant “lost it.”      He was sent to his division officer’s

office, where he sat for about four hours.          Psychiatrists were

brought on board, but appellant did not have an opportunity to

talk with them.

      Two months after the explosion, appellant was transferred to

recruiting duty in Oklahoma.        Appellant told the military judge

that he had a “nervous breakdown” in 1997, and he was ordered to

seek medical treatment at Tinker Air Force Base.          He was

hospitalized for two days and then began seeing Major John




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United States v. Doss, No. 01-0686/NA


Atkins, a clinical social worker in the Substance Abuse Program,

once a week.

      Four months after being hospitalized at Tinker, appellant

met his now ex-wife, and they were married a month later, in

August 1997.    His ex-wife testified that appellant accused her of

infidelity, starting on their wedding night and continuing “just

about every night and day” until they separated.

      Shortly after his marriage, appellant was transferred from

recruiting duty to the USS JOHN C. STENNIS, homeported in

Norfolk, Virginia.      He reported for duty on September 30, 1997,

and the ship deployed 12 days later.

      Appellant told the military judge that within days after his

ship deployed, he began having panic attacks and thought about

jumping overboard.      He reported to the medical office, where he

was kept under observation for three days, and was then evacuated

to Portsmouth Naval Hospital, where he stayed for one night.     He

attended stress management classes for five days and began seeing

Lieutenant (LT) J.C. Arguello, M.D., a Navy psychiatrist, once a

month.

      In November, 1997, while still under the out-patient care of

LT Arguello, appellant assaulted his wife twice.     One assault was

committed by hitting his wife in the face and body with his

fists, grabbing her by the throat, and throwing her against a

wall.    The other assault was by pointing a loaded rifle at her.

This conduct was the basis for the two violations of Article 128

to which appellant pleaded guilty.

      On January 4, 1998, at a truck stop, appellant asked a truck

driver about the possibility of having his wife killed.


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United States v. Doss, No. 01-0686/NA


According to the truck driver’s testimony, appellant asked how

much it would cost to “take her out,” and the truck driver told

appellant, “Probably a couple of grand.”      Appellant gave the

truck driver his name, military address, and a home telephone

number.   The truck driver reported the conversation to the

Federal Bureau of Investigation in Oklahoma City.      Appellant and

the truck driver had no further discussions.      This incident was

the basis for the charge of soliciting another to murder his

wife.

      Shortly after the incident at the truck stop, appellant

called his mother and told her what he had done.      With her help,

he checked into the medical facility at Barksdale Air Force Base

on January 8, 1998, but he was sent to the Veteran’s Hospital

because there was no room at Barksdale.      He remained in the

Veteran’s Hospital for five days, where he participated in “group

sessions” and “one-on-one with the doctor.”

      On January 23, 1998, LT Arguello placed appellant on limited

duty for six months.      Appellant also began seeing a civilian

pschologist, Dr. Thomas Pasquale, and continued to see him until

his court-martial.

      At trial, the defense presented no medical evidence other

than appellant’s unsworn statement during the sentencing hearing.

Six days after appellant was sentenced, LT Arguello diagnosed him

as suffering from post-traumatic stress disorder.

      The Court of Criminal Appeals held that appellant’s civilian

defense counsel was ineffective during the sentencing hearing,

based on his failure to present evidence of appellant’s mental

condition.    The court considered 19 pages of medical records that


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United States v. Doss, No. 01-0686/NA


were attached to appellant’s response to the staff judge

advocate’s recommendation.       The court concluded “that no

reasonable tactical purpose existed for not seeking to introduce

the extant medical records at sentencing.”       Unpub. op. at 14-15.

The court below reassessed the sentence and reduced the

confinement from eight years to seven years, but it affirmed the

dishonorable discharge, forfeitures, and reduction.

      On appellant’s motion, this Court admitted the sworn

declaration of Dr. Jerry L. Brittain, a clinical psychologist and

neuropsychologist.      Dr. Brittain reviewed the 19 pages of medical

records considered by the court below, and he noted that the

medical records reflect 22 different and sometimes contradictory

psychiatric diagnoses.      He opined that a lay person or attorney

would not know the meaning or significance of the numerous

acronyms and medical jargon in the records.       He opined that a lay

person or attorney “could not fully understand how these

diagnoses extenuate and mitigate MM1 Doss’s criminal actions and

how they bear on the possibility of rehabilitation.”       Finally, he

pointed out that the records are incomplete.       For example, there

are references to Family Advocacy, hospitalization at Barksdale

Air Force Base, and substance abuse evaluations, but no

supporting documentation.

                                 Discussion
      Appellant asserts that the court below improperly reassessed

the sentence on the basis of an incomplete record and that it

used the wrong standard for reassessment.       The Government argues

that the lower court erred in holding civilian defense counsel

was ineffective, that the lower court used the correct standard


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United States v. Doss, No. 01-0686/NA


for reassessment, and that the record was adequate to permit

reliable reassessment.

      This Court will overturn the lower court’s sentence

reassessment only to “prevent obvious miscarriages of justice or

abuses of discretion.”      Boone, 49 MJ at 195, citing United State

v. Jones, 39 MJ 315, 317 (CMA 1994), quoting United States v.

Dukes, 5 MJ 71, 73 (CMA 1978).          Since the lower court’s holding

that civilian defense counsel was ineffective was not challenged

by certification under Article 67(a)(2), UCMJ, 10 USC

§ 867(a)(2), and is not encompassed by the granted issue, we will

not reexamine the lower court’s holding in this regard.•

Furthermore, in light of our holding that the lower court abused

its discretion by reassessing the sentence on the basis of an

inadequate record, we will not address the question whether the

lower court applied the correct standard for reassessment.

      In United States v. Sales, 22 MJ 305 (CMA 1986), this Court

set out the rules for sentence reassessment by a Court of



•
  With respect to the dissenting portion of the Chief Judge’s
separate opinion, in United States v. Williams, 41 MJ 134, 135 n.
2 (CMA 1994), this Court recognized that the law-of-the-case
doctrine does not preclude this Court from examining the legal
ruling of a subordinate court in a case where the Judge Advocate
General has not certified the issue. However, we are reluctant
to exercise this power and, as a rule, reserve it for those cases
where the lower court’s decision is “clearly erroneous and would
work a manifest injustice” if the parties were bound by it. See
Christianson v. Colt Industries Operating Corp., 486 U.S. 800,
817 (1998), cited in Williams, supra. In this case, the
Government has not satisfied us that the lower court’s holding
was “clearly erroneous and would work a manifest injustice” if
adopted for purposes of this case. Accordingly, we will apply
the law-of-the-case doctrine.




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United States v. Doss, No. 01-0686/NA


Criminal Appeals.     If the court can determine that, absent the

error, the sentence would have been at least of a certain

magnitude, then it may cure the error by reassessing the sentence

instead of ordering a sentence rehearing.         Id. at 307.   A

sentence of that magnitude or less “will be free of the

prejudicial effects of error.”          Id. at 308. If the error at trial

was of constitutional magnitude, then the court must be satisfied

beyond a reasonable doubt that its reassessment cured the error.

Id. at 307.    If the court “cannot reliably determine what
sentence would have been imposed at the trial level if the error

had not occurred,” then a sentence rehearing is required.           Id.

      In Boone, supra, this Court held that defense counsel’s

ineffective representation during sentencing made it impossible

to reliably reassess the sentence, because it was impossible to

determine what evidence would have been presented by competent

counsel.    This Court explained:

        The record simply does not contain the evidence
        that the misfeasance of counsel caused to be
        omitted from the record.    Therefore, there is no
        record from which the Court of Criminal Appeals,
        acting within its vast but circumscribed powers
        under Article 66(c), [UCMJ, 10 USC § 866(c),] can
        determine the sentence that the court-martial would
        have imposed . . . .       Nor has Boone had the
        opportunity   to   develop   fully  his   case   in
        extenuation   or    in   mitigation   through   the
        presentation of these witnesses or through the
        presentation of additional evidence . . . .      In
        short, here, the record does not contain the
        evidence omitted by the constitutional error.
        Boone must have the opportunity to make the record
        that he did not have the opportunity to make
        because of the absence of the guiding hand of
        counsel.

           We stress the narrow confines of our holding.
        We intend no limitation on the power of the Courts
        of Criminal Appeals to reassess a sentence after
        other legal error has been identified . . . . Nor


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United States v. Doss, No. 01-0686/NA


        do we suggest that a remand for resentencing is
        necessary in all cases in which trial defense
        counsel was constitutionally inadequate . . . .
        Here we deal only with a situation in which the
        inadequacy of counsel has resulted in the omission
        of   evidence   that,   under  the   standards    of
        [Strickland v. Washington, 466 U.S. 668 (1984),]
        could have made a difference in the sentence
        imposed if it had been made a matter of record. In
        such instances, the Court of Criminal Appeals
        cannot reassess the sentence accurately, see Sales,
        22 MJ at 308, because the record is not complete.

49 MJ at 198-99.

      This case presents a situation similar to Boone.       As Dr.

Brittain’s analysis suggests, the 19 pages of medical

documentation may be only the tip of the iceberg.        Furthermore,

it appears that the significance of those 19 pages cannot be

fully appreciated without expert testimony.        It is impossible to

determine what evidence a competent defense counsel would have

presented.    Thus, civilian defense counsel’s omissions cannot be

rendered harmless beyond a reasonable doubt by sentence

reassessment.     Accordingly, we hold that the court below abused

its discretion by reassessing the sentence instead of ordering a

rehearing.

                                  Decision
      The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed as to findings but reversed as to

sentence.    The sentence is set aside.      The record of trial is

returned to the Judge Advocate General of the Navy.        A rehearing

on the sentence may be ordered.




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United States v. Doss, No. 01-0686/NA


     CRAWFORD, Chief Judge (concurring in part and dissenting in

part):

     I believe that the Court of Criminal Appeals failed to use

the correct standard for reassessing a sentence after finding an

error of constitutional proportion.   Nowhere did the Court state

or show that it was satisfied, beyond a reasonable doubt, that

its reassessment of appellant’s sentence cured the

constitutional error of ineffective assistance of counsel during

the court-martial sentencing proceeding.   See United States v.

Boone, 49 MJ 187 (1998).   The Court of Criminal Appeals also co-

mingled the concepts of sentence reassessment and sentence

appropriateness.   Accordingly, this case should be returned to

the Judge Advocate General of the Navy for remand to the Court

of Criminal Appeals.   If that court cannot be satisfied beyond a

reasonable doubt that its sentence reassessment cures the

ineffective assistance of counsel during sentencing, it must

direct a sentence rehearing.

     I do not agree with the majority that since the lower

court’s holding, that civilian defense counsel was ineffective,

“was not challenged by certification under Article 67(a)(2),”

___ MJ at (7), we cannot reexamine that holding.   As I said in

United States v. Grooters:

          It may make sense to apply the law-of-the-case
     doctrine when there has not been a factual context to
     review, Luce v. United States, 469 U.S. 38, 105 S.Ct.
United States v. Doss, No. 01-0686/NA


     460, 83 L.Ed.2d 443 (1984), or when the issue has not
     been briefed by the parties. However, it seems
     illogical to otherwise have an intermediate appellate
     court bind a higher appellate court. New York Life
     Ins. Co. v. Hosbrook, 130 Ohio St. 101, 196 N.E. 888
     (1935).

39 MJ 269, 274-75 (CMA 1994)(Crawford, J., concurring in the

result).

     The majority’s view of the law of the case prohibits this

Court from performing its statutorily intended purpose of

overseeing the military justice system.    See United States v.

Walker, No. 01-0762, ___ MJ ___, ___ (2002)(Sullivan, S.J.,

joined by Crawford, C.J., dissenting).    It makes no sense to

require a certification by a Judge Advocate General in order to

examine a legal ruling from a Court of Criminal Appeals.    “Once

a case has been accepted for review by this Court, and the

Government Appellate Division attacks the lower court ruling [as

is the case at hand], that issue is placed squarely before us.”

United States v. Pablo, 53 MJ 356, 361 (2000)(Crawford, C.J.,

dissenting).   As we said in United States v. Williams, 41 MJ

134, 135 n.2 (CMA 1994):

     The law-of-the-case doctrine does not preclude this
     Court, once the case has been properly granted for
     review, from considering an erroneous conclusion of
     law made by the Court of Military Review. See
     Christianson v. Colt Industries Operating Corp., 486
     U.S. 800, 817, 108 S. Ct. 2166, 2178, 100 L.Ed.2d 811
     (1988).




                                 2
United States v. Doss, No. 01-0686/NA


     Although the majority finds that “[t]his case presents a

situation similar to Boone,” ___ MJ at (9), it is easily

distinguishable.   In Boone, the record of trial did not contain

the evidence that caused the Army Court of Criminal Appeals to

find counsel misfeasance.   In fact, that record of trial was

devoid of any extenuation and mitigation, except for Boone’s

unsworn statement.   Since there was no record and, therefore, no

evidence for the Court of Criminal Appeals to examine in the

exercise of its powers under Article 66(c), Uniform Code of

Military Justice (UCMJ), 10 USC § 866(c), this Court held that

the lower court’s reassessment of Boone’s sentence was an abuse

of discretion.

     Unlike Boone, appellant had two non-commissioned officers

(Chief Electrician’s Mate Palmiere and Chief Machinist’s Mate

Norman), as well as his sister (Ms. Stewart), testify on his

behalf during extenuation and mitigation.   These witnesses

bolstered appellant’s story about the trauma he had suffered

after the USS IOWA explosion.   The information elicited from

these witnesses makes the Court of Criminal Appeals’s finding of

ineffective assistance of counsel during sentencing suspect.

     While the 19 pages of medical documentation submitted to

the convening authority during the post-trial process may

represent “the tip of the iceberg,” ___ MJ at (9), the majority

omits a crucial fact -- appellant refused to participate in a


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United States v. Doss, No. 01-0686/NA


sanity board, convened for his benefit, prior to the

commencement of court-martial proceedings.

     While, as the Court of Criminal Appeals points out, this

refusal in and of itself would not have precluded introduction

of any medical records into evidence during extenuation and

mitigation, appellant’s refusal to participate in the sanity

board is further evidence that his counsel was not ineffective

during the sentencing proceedings.   This refusal to participate

in the sanity board will undoubtedly test the credibility of

defense evidence at any sentence rehearing.   Despite the

foregoing, I am not convinced that the lower court’s ruling

created a manifest injustice or was clearly erroneous.   See

Grooters, 39 MJ at 274 (Crawford, J., concurring in the result).

Accordingly, I am not prepared to overturn the Court of Criminal

Appeals’s finding that civilian defense counsel was ineffective.

     However, I am compelled to dissent from the majority’s

disposition -- returning this case directly for a sentence

rehearing instead of returning it to the Judge Advocate General

of the Navy for further review by the Court of Criminal Appeals.

     The rules related to resentencing have been cogently set

forth by the Supreme Court in Jackson v. Taylor, 353 U.S. 569

(1957); by this Court in United States v. Miller, 10 USCMA 296,

27 CMR 370 (1959)(interpreting Jackson); and thereafter in

numerous cases from United States v. Suzuki, 20 MJ 248 (CMA


                                4
United States v. Doss, No. 01-0686/NA


1985), through United States v. Eversole, 53 MJ 132 (2000).

First, sentence reassessment is the business of the Courts of

Criminal Appeals.

      Congress thought the board of review could modify
      sentences when appropriate more expeditiously, more
      intelligently, and more fairly. Acting on a national
      basis the board of review can correct disparities in
      sentences and through its legally-trained personnel
      determine more appropriately the proper disposition
      to be made of the cases. Congress must have known of
      the problems inherent in rehearing and review
      proceedings for the procedures were adopted largely
      from prior law. It is not for us to question the
      judgement of the Congress in selecting the process it
      chose.

Jackson, 353 U.S. at 580.   This Court has adopted these

congressional and judicial views and generally refused to

substitute its own judgment for that of the mature, experienced,

and capable judges that sit on the various Courts of Criminal

Appeals.   See United States v. Cook, 46 MJ 37, 39 (1997); United

States v. Hawes, 51 MJ 258, 260 (1997); Eversole, supra at 138-

140 (Crawford, C.J., dissenting).    We overturn a sentence

reassessment decision by 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 Eversole, supra at 138 (Crawford, C.J., dissenting); United

States v. Cook, 48 MJ 434, 438 (1998); Boone, supra.    In this

case, the Court of Criminal Appeals failed to use the correct




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United States v. Doss, No. 01-0686/NA


standard for reassessing a sentence after finding an error of

constitutional proportion.

     The majority finds that the Court of Criminal Appeals

abused its discretion by reassessing a sentence based on an

inadequate record, and avoids the issue concerning application

of the correct standard for reassessment.    Even so, the proper

disposition is to remand this case to the Court of Criminal

Appeals, as we have no fact-finding power or responsibility to

find facts.

     In reaching its conclusion, the majority apparently relies

on the sworn declaration of Dr. Brittain, a retired naval

Medical Service Corps clinical psychologist and

neuropsychologist.   ___ MJ at (6).   Although neither a medical

doctor nor psychiatrist, Dr. Brittain recounts what he views as

“22 different (and sometimes contradictory) psychiatric

diagnoses just from the records which [he] reviewed.”    Dr.

Brittain’s sworn declaration was never before the Court of

Criminal Appeals.

     The Court of Criminal Appeals has the full capability to

order appellant’s medical records, in their entirety, to be

provided to that court for review by counsel, as well as the

judges.   See Art. 47(a)(1), UCMJ, 10 USC § 847(a)(1); Art.

66(c); United States v. Lewis, 42 MJ 1 (1995).    If additional

oral argument is warranted, the court can order it.    If other


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United States v. Doss, No. 01-0686/NA


sworn declarations beyond that of Dr. Brittain are required, the

lower court can order them.       See Lewis, supra; see generally

United States v. Ginn, 47 MJ 236 (1997).

     Similar to what the Supreme Court found in Jackson, any

court-martial convened for the purpose of resentencing appellant

will have to make its sentence determination on the basis of

whatever portions of the verbatim record that trial counsel and

the judge give the court-martial, along with any new evidence

counsel might wish to submit.       While returning this case to the

Court of Criminal Appeals might “merely substitute one group of

nonparticipants in the original trial for another,” 353 U.S. at

580, it is my firm belief, as reflected by the Supreme Court,

that Congress intended that boards of review, the forerunners of

today’s Courts of Criminal Appeals, would have the first

opportunity to reassess court-martial sentences, using guidance

from this Court.*     The fact that the Court of Criminal Appeals

misapplied the standard of review in this case does not mean

that a remand to that court for additional review is improper.

As we said in Miller, returning the case directly to the trial

level is “cumbersome.”      10 USCMA at 299, 27 CMR at 373.        Such


*
  A quick comparison of recent cases from this Court shows an “I know it when
I see it” approach to sentence reassessment following reversal of a Court of
Criminal Appeals decision. Compare United States v. Ayers, 54 MJ 85 (2000),
and United States v. McElhaney, 54 MJ 120 (2000), with United States v.
Tollinchi, 54 MJ 80 (2000), and United States v. Brown, 55 MJ 375 (2001);
compare also United States v. Johnson, 54 MJ 67 (2000), with United States v.
Vasquez, 54 MJ 303 (2001).


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United States v. Doss, No. 01-0686/NA


action also unnecessarily abridges the Court of Criminal

Appeals’s discretion, fails to make use of that court’s

expertise, and certainly runs counter to congressional intent.

See generally United States v. Vasquez, 54 MJ 303, 306

(2001)(Crawford, C.J., concurring in part and dissenting in

part).

     The issue is not whether this Court and the Court of

Criminal Appeals have the power or authority to order a sentence

rehearing.   Both clearly have that power.   See Jackson, supra;

United States v. Sills, 56 MJ 239, 240 (2002); Miller, supra.

If the lower court is unable to cure the error through its

sentence reassessment, that court will return the case for a

sentence rehearing by a court-martial, albeit not the same court

that initially heard evidence and rendered findings and a

sentence.    See Jackson, supra at 579 (“A court-martial has

neither continuity nor situs and often sits to hear only a

single case.”).

     Accordingly, I would return this case to the Judge Advocate

General of the Navy for remand to the United States Navy-Marine

Corps Court of Criminal Appeals for action consistent with this

opinion.




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United States v. Doss, No. 01-0686/NA

    SULLIVAN, Senior Judge (dissenting):


    Appellant was convicted of three serious crimes:            assaulting

his wife with a loaded firearm, assault and battery on his wife,

and soliciting another to murder his wife.          The Court of Criminal

Appeals found that 19 pages of medical records should have been

given to the sentencing authority at trial and found error.*



    The Court of Criminal Appeals looked at the missing medical

records and commented on this situation as follows:


                These records demonstrate a documented
            history of stress, suicide ideation, and
            mental health hospitalizations, commencing
            in the spring of 1997 and continuing
            through the date of trial. The objective
            diagnoses of the various mental health
            professionals who attended the appellant
            could not have but considerably bolstered
            the appellant’s self-serving unsworn
            statement. We are confident that, but for
            this error, the military judge would have
            adjudged a lesser punishment.
            Accordingly, we will reassess the
            sentence.

Unpub. op. at 14-15.


    The court below then applied our decision in United States v.

Jones, 39 MJ 315 (CMA 1994), on reassessment and said:



                In reassessing the sentence we have
            carefully reviewed the record. In doing
*
  I continue to voice my disagreement with the majority’s understanding and
use of the doctrine of law of case with respect to the scope of our appellate
review. See United States v. Hall, 56 MJ 432, 437 (2002) (Sullivan, S.J.,
concurring in part and in the result); United States v. Walker, No. 01-0762,
__ MJ __ (2002)(Sullivan, S.J., joined by Crawford, C.J., dissenting).
United States v. Doss, No. 01-0686/NA


          so, we paid particular attention to the
          testimony of [Marsha Sue] Williams in
          aggravation, the appellant’s unsworn
          statement, the appellant’s awards and
          excellent evaluations (prior to 1997),
          and the medical records submitted to the
          convening authority pursuant to RCM 1106.

              In assessing the nature and
          seriousness of the offense, we first
          emphasize that in addition to the facts
          of the solicitation, the appellant
          pleaded guilty to assault with a firearm.
          While the bulk of trial was devoted to
          the solicitation, the appellant did plead
          guilty to the earlier assaults upon his
          wife. The circumstances of these
          assaults set forth a very chilling
          scenario in which Williams was terrorized
          with a rifle pointed at her in close
          proximity on four separate occasions and
          on a fifth occasion from a greater
          distance. On at least the first four
          occasions, the rifle was purposefully
          loaded just prior to the assaultive
          behavior.


              Given the dread Williams must have
          experienced throughout her ordeal,
          coupled with the appellant’s additional
          guilt of the solicitation for Williams’
          murder, and after carefully considering
          the “character of the offender,” we are
          certain that the appellant’s sentence
          would have been at least of a certain
          magnitude. We reassess the sentence that
          would have been adjusted free of the
          prejudicial error of the failure to
          introduce the appellant’s medical records
          at his court-martial.


Unpub. op. at 15-16   (emphasis added)(footnote ommited).



    I see no legal error by the Court of Criminal Appeals in its

reassessment and reduction of appellant’s sentence from eight to


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United States v. Doss, No. 01-0686/NA

seven years confinement.   See United States v. Boone, 42 MJ 308,

314 (1995) (Sullivan, C.J., dissenting) (Court of Criminal

Appeals “adequately addressed the issue of effective assistance

of counsel”).   I am not inclined to upset its considered judgment

based on speculation.




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