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

                                                           UNITED STATES, Appellee
                                                                        v.
                                                         Specialist MICHAEL C. EVANS
                                                          United States Army, Appellant

                                                                ARMY 20130251

                                            Headquarters, Fort Stewart
                                         Tiernan P. Dolan, Military Judge
                            Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Major Amy E. Nieman, JA; Captain Sara E. Lampro, JA.

For Appellee: Major Robert A. Rodrigues, JA.


                                                                  27 June 2014

                                            --------------------------------------------------------------
                                            SUMMARY DISPOSITION ON FURTHER REVIEW
                                            --------------------------------------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of violating a lawful general regulation,
one specification of drunken operation of a vehicle, one specification of wrongful
use of cocaine, one specification of possessing an open container of alcohol in his
vehicle in violation of Georgia law 1, and one specification of breaking restriction in
violation of Articles 92, 111, 112a, and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 892, 911, 912a, and 934 [hereinafter UCMJ]. 2 The military judge
sentenced appellant to a bad-conduct discharge and confinement for twenty months
In accordance with a pretrial agreement, the convening authority approved only so
much of the sentence as provided for a bad-conduct discharge and 450 days of
                                                            
1
 The Georgia state law was adopted by the government through the Federal
Assimilative Crimes Act. 18 U.S.C. § 13.
2
 The military judge acquitted appellant of obstructing justice and an additional
breaking restriction offense.
EVANS – ARMY 20130251

confinement. The convening authority credited appellant with 187 days against his
sentence to confinement.

       On 5 March 2014, we issued a decision in this case wherein we affirmed the
findings of guilty and the sentence approved by the convening authority. See United
States v. Evans, ARMY 20130251 (Army Ct. Crim. App. 5 Mar. 2014) (sum. disp.).

       Appellant petitioned our superior court for relief on 5 May 2014. Pursuant to
its 5 June 2014 order, our superior court, citing to United States v. Schell, 72 M.J.
339 (C.A.A.F. 2013), granted relief and set aside the finding of guilty to
Specification 3 of Charge IV (breaking restriction). 3 Our superior court affirmed the
remaining findings and returned the record to The Judge Advocate General of the
Army who in turn has remanded the case to our court. In remanding the case, our
superior court gave this court the choice between “either dismiss[ing] Specification
3 of Charge IV and reassess[ing] the sentence based on the affirmed findings, or . . .
[ordering] a rehearing on the affected specification and the sentence.”

        In choosing the former course of action, we are able to reassess the sentence
on the basis of the error noted and do so after conducting a thorough analysis of the
totality of the circumstances presented by appellant’s case and in accordance with
the principles articulated by our superior court 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 (C.M.A.
1986).

       In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Second, appellant was sentenced by a court-martial consisting of a
military judge alone. Third, we find the nature of the remaining offenses captures
the gravamen of the original specifications. Finally, based on our experience, we are
familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial.

       Accordingly, we therefore DISMISS Specification 3 of Charge IV. In
reassessing the sentence, based on the noted error and the entire record, we AFFIRM
only so much of the sentence that provides for a bad-conduct discharge and
confinement for 420 days. This reassessed sentence provides a reduction in
confinement equal to the maximum amount of confinement appellant was originally
subjected to for the dismissed specification. See Manual for Courts-Martial, United
States (2012 ed.), pt. IV, ¶ 102(e). We find this reassessed sentence is not only
purged of any error but is also appropriate. All rights, privileges, and property, of

                                                            
3
 Appellant was charged with breaking restriction to the prejudice of good order and
discipline in the armed forces, but the military judge erroneously questioned
appellant only as to if his breaking restriction was service discrediting.

                                                               2
EVANS – ARMY 20130251

which appellant has been deprived by virtue of that portion of the findings and
sentence set aside by this decision, are ordered restored. See UCMJ arts. 58b(c) and
75(a).


                                       FORTHE
                                      FOR  THE COURT:
                                              COURT:




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




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