Dateline: 9 October 2020 (as of 1000).
No. 20-0286/AF. U.S. v. Jacob M. Ozbirn. CCA 39556. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE EVIDENCE THAT APPELLANT ASKED FOR "NAKED PICTURES" FROM ADULTS PRETENDING TO BE MINORS IS LEGALLY SUFFICIENT TO SUSTAIN A CONVICTION FOR ATTEMPTED RECEIPT OF CHILD PORNOGRAPHY.
Appellant pleaded guilty to misuse of a fuel card as a violation of a lawful general regulation. He now asserts the military judge abused his discretion in accepting his plea because the regulation to which he pleaded guilty of violating was not the regulation applicable to his misconduct. We agree and provide relief in our decretal paragraph.
Appellant was sentenced to BCD, 30 months. The court affirmed the BCD and 29 months.
We have seen several providence-sufficiency cases over the last year. Here is the standard the courts apply,
A military judge’s acceptance of a guilty plea is reviewed for an abuse of discretion, whereas questions of law arising from the plea are reviewed de novo. United States v. Murphy, 74 M.J. 302, 305 (C.A.A.F. 2015). “A military judge abuses this discretion if he fails to obtain from the accused an adequate factual basis to support the plea—an area in which we afford significant deference.” United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (citing United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)); United States v. Care, 18 C.M.A. 535, 541 (C.M.A. 1969).
Appellant raises two issues on appeal: (1) whether the evidence is legally and factually sufficient to support his conviction for distribution of child pornography, and (2) whether he is entitled to relief for the conditions of his posttrial confinement. Although not raised by Appellant, we also consider whether he is entitled to relief for facially unreasonable post-trial delay. We find no corrective action is warranted, and we affirm the findings and sentence.
On appeal, Appellant raises two issues. He first alleges his conviction is factually and legally insufficient. Second, he asserts a dishonorable discharge is an inappropriately severe punishment. Finding no error prejudicial to the substantial rights of Appellant, we affirm.
On appeal, Appellant raises a single assignment of error: whether Appellant is entitled to sentence-appropriateness relief due to post-trial delay. Specifically, Appellant claims that his due process rights were violated when his case was not docketed with this court within 30 days of the convening authority’s action as required by United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). We find no error that resulted in material prejudice to Appellant’s substantial rights, and we affirm the findings and sentence.
Appellant raises three assignments of error relating to the post-trial processing in his case. We consider whether (1) issuance of a corrected copy of the Statement of Trial Results (STR) invalidates the entry of judgment (EoJ), (2) failure to identify the command of the convening authority in the STR invalidates the EoJ, and (3) a missing appellate exhibit from the record of trial entitles Appellant to sentence appropriateness relief. We also consider the convening authority’s action with respect to the sentence. We find no error materially prejudicial to a substantial right of Appellant and affirm the findings and sentence.
Upon our initial review, we found Appellant was not entitled to relief with regard to the seven issues he raised; however, we found that a new post-trial process and action were required due to errors in the staff judge advocate’s recommendation (SJAR) to the convening authority. United States v. Simmons, No. ACM 39342, 2019 CCA LEXIS 156 (A.F. Ct. Crim. App. 9 Apr. 2019) (unpub. op.). Accordingly, we set aside the convening authority’s action and returned the record of trial to The Judge Advocate General for remand to the convening authority. Id. at *57. On remand, after receiving additional clemency submissions from Appellant, the convening authority again approved the adjudged sentence.
Appellant now raises a single issue: whether relief is warranted due to delays in the post-trial processing of his case. We find modest sentence relief is warranted, and take appropriate action in our decretal paragraph.
The case is of interest because it discussions a denial of a deferral of sentence when the convening authority fails to put the reasoning in writing and does not follow R.C.M. 1103(d).
This case is before us a second time. At his first general court-martial, Appellant was found guilty of various offenses and sentenced to reduction to E-1, forfeiture of all pay and allowances, confinement for 26 years, and a dishonorable discharge. On appeal, we held that his trial defense counsel’s undisclosed conflicts of interest deprived him of the effective assistance of counsel, and we set aside the findings and sentence and authorized a rehearing. United States v. Hale, 76 M.J. 713 (N-M. Ct. Crim. App. 2017).
At his second trial, Appellant was found guilty, pursuant to his pleas, of violation of a lawful general order and wrongful use of an anabolic steroid in violation of Articles 92 and 112a, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 892, 912a (2012). He was additionally found guilty, contrary to his pleas, of rape, aggravated assault, adultery, kidnapping, and indecent language in violation of Articles 120, 128, and 134, UCMJ. He now asserts two assignments of error [AOEs]: (1) the military judge erred by not suppressing evidence obtained from the search of Appellant’s gym bag and subsequent urinalysis; and (2) the evidence is factually insufficient to sustain Appellant’s convictions for the offenses to which he pleaded not guilty. We find no prejudicial error and affirm.
In the News—pending appellate cases.
Worth the Read.
· Charles Oldfield, Professionalism in Legal Writing: Dos & Donts-Part 1.
“The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts.”
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