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

                         UNITED STATES, Appellee
                                      v.
               Chief Warrant Officer Two STEVEN J. SPENCER
                        United States Army, Appellant

                                  ARMY 20120165

                            Headquarters, Fort Hood
                        Patricia H. Lewis, Military Judge
                  Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Ian M. Guy, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief).


                                 30 September 2014
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------
Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of four specifications of aggravated sexual contact with a
child, indecent liberty with a child, and two specifications of conduct unbecoming
an officer and gentleman, in violation of Articles 120 and 133, Uniform Code of
Military Justice, 10 U.S.C. §§ 920, 933 (2006 & Supp. III) [hereinafter UCMJ]. The
military judge sentenced appellant to a dismissal, confinement for nine years, and
forfeiture of all pay and allowances. The convening authority approved only so
much of the sentence as provided for a dismissal and nine years of confinement. 1

1
 The convening authority also deferred the adjudged and automatic forfeitures of all
pay and allowances until action. At action, the convening authority waived the
automatic forfeiture of all pay and allowances for a period of six months and
directed that these funds be paid to appellant’s wife.
SPENCER—ARMY 20120165

      This case is before us pursuant to Article 66, UCMJ. Appellant raises two
assignments of error, both of which merit discussion and relief. 2

                           Dilatory Post-Trial Processing

       Appellant’s trial concluded on 16 February 2012. The record of trial was not
transcribed and provided to the military judge for authentication until 12 March
2013. The convening authority took initial action on this case on 23 May 2013, but
withdrew this initial action and again took action on this case on 3 July 2013.

      Similar to his complaint in his Rule for Courts-Martial 1105 submission,
appellant now claims the lengthy post-trial processing of this case warrants relief.
We agree.

      Despite an absence of a showing of prejudice in this case, we find thirteen
months from trial until authentication of a 162-page record of trial is too long, and
we will grant two months of confinement relief in our decretal paragraph. See
United States v. Collazo, 53 M.J. 721 (Army Ct. Crim. App. 2000).

                        Providence to “On Divers Occasions”

       In Specification 4 of Charge I, appellant was charged with and convicted of
committing aggravated sexual contact with a child on divers occasions. Similarly
both Specification 1 and Specification 2 of Charge II allege appellant engaged in
conduct unbecoming an officer and a gentleman on divers occasions. When
discussing the elements of each of these three specifications, the military judge
never listed or defined the term “on divers occasions.” To make matters worse,
during the providence inquiry regarding Specification 4 of Charge I and
Specification 1 of Charge II, appellant only discussed single acts of misconduct with
respect to these particular specifications.

       Although the stipulation of fact does mention multiple occasions for each of
these three specifications, the military judge never ensured appellant understood the
term, “on divers occasions,” nor did she clarify any inconsistency between the
courses of misconduct chronicled in the stipulation of fact and appellant’s
admissions at trial of lone acts of misconduct pertaining to each specification. See
United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006) (“If an accused sets up
matter inconsistent with the plea at any time during the proceeding, the military
judge must either resolve the apparent inconsistency or reject the guilty plea.”)

2
 Appellant also personally raises several issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merits discussion or relief.




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SPENCER—ARMY 20120165

(internal quotation marks and citations omitted); UCMJ art. 45(a). Accordingly, we
will disapprove so much of the findings of guilty as provides for “on divers
occasions” in these three specifications and reassess the approved sentence.

                                     Conclusion
 
      The court affirms only so much of Specification 4 of Charge I and
Specifications 1 and 2 of Charge II as finds that appellant engaged in each
respective offense on a single occasion. The remaining findings of guilty are
AFFIRMED.

       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 circumstances presented by
appellant’s case and in accordance with the principles and non-exhaustive list of
factors 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).

       Here, all four enumerated Winckelmann factors support our ability to reassess
appellant’s sentence. 73 M.J. at 15-16. First, the modified findings of guilty with
respect to Specification 4 of Charge I and Specifications 1 and 2 of Charge II do not
result in a change in the penalty landscape or appellant’s punitive exposure. The
maximum sentence to confinement remains the same as at trial. Considering factor
two, appellant was sentenced by a military judge alone. As for factor three, we find
the nature of the remaining offenses—including those specifications as amended by
our decision—captures the gravamen of the offenses of which appellant was initially
convicted. Finally, regarding the fourth factor, the remaining offenses are the type
of offenses with which we have the experience and familiarity to reliably determine
what sentence would have been imposed.

       Reassessing the sentence on the basis of the error noted, the entire record, and
applying the principles of United States v. Sales, 22 M.J. 305, 307-08 (C.M.A.
1986), we are confident the military judge would have sentenced appellant to at least
a dismissal and confinement for eight years and ten months. Therefore, after
considering the entire record, to include the dilatory post-trial processing, the court
AFFIRMS only so much of the sentence as provides for a dismissal and confinement
for eight years and eight months. All rights, privileges, and property, of 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).




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SPENCER—ARMY 20120165

                        FOR THE
                        FOR THE COURT:
                                COURT:




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




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