The Air Force Court of Criminal Appeals (AFCCA) affirmed the sentence of Appellant Gregory C.S. Merritt II. Appellate Military Judge Meginley dissented in a separate opinion. Appellant was charged with wrongful possession of child pornography in violation of Article 134 UCMJ and sentenced to dishonorable discharge, confinement for 30 months, forfeiture of all pay and allowances, and reduction to the grade of E-1. In accordance with a pretrial agreement (PTA) the convening authority disapproved the forfeitures but approved the remainder of the sentence.
Merritt Opinion Here
Appellant was stationed at Kadena Air Base in Japan when his wife found an “animated depiction of child pornography” on their home computer. Appellant’s wife contacted the Security Forces who in turn contacted special agents of the Air Force Office of Special Investigation (AFOSI). Those agents secured authorization to search Appellants electronic devices, conducted a search of his home computer, and found 428 files with positive “hash values” on file with the National Center for Missing and Exploited Children. Positive hash values indicate the file has been connected to actual victims of child pornography.
During his confinement, Appellant complained that he was denied sterile water and medical supplies he needed for his Continuous Positive Airway Pressure (CPAP) machine, a device prescribed to combat sleep apnea. Appellant complained to confinement officials that the water he was given had a “rusty orange tint” and caused a buildup of rust in the machine. After some time, confinement officials began bringing him bottled water. Appellant also made multiple requests for “supplies” needed for the machine which he never received, but he was still able to use the CPAP device without those supplies.
Issues Raised on Appeal
Appellant first argued that his confinement conditions constituted cruel and unusual punishment under the Eighth Amendment and under Art 55 UCMJ. Appellant also argued that, in the alternative, his confinement conditions caused his sentence to be inappropriately severe, and therefore warrant relief under Art 66(d) UCMJ and United States v. Gay, 74 M.J. 736, 740 (A.F. Ct. Crim. App. 2015).
Cruel and Unusual Punishment
Citing US v. Gay, the court noted that the Supreme Court’s interpretation of the Eighth Amendment applies to Article 55, UCMJ. To evaluate an Eighth Amendment claim, and therefore an Art 55 claim, the court applied a three-factor test from United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006). Under the Lovett test, an appellant can prove an Eighth Amendment violation by showing:
(1) an objectively, sufficiently serious act or omission resulting in the denial of necessities; (2) a culpable state of mind on the part of prison officials amounting to deliberate indifference to [his] health and safety; and (3) that he “has exhausted the prisoner- grievance system . . . and that he has petitioned for relief under Article 138, UCMJ, 10 [U.S.C.] § 938 .”
The court held that Appellant failed to meet his burden under the first prong because, even assuming his factual assertions were true, “there is insufficient evidence to objectively conclude that a sufficiently serious act or omission occurred that resulted in the denial of necessities.”
The court ruled against Appellant on the second Lovett prong as well because the record showed no evidence that the confinement officials intentionally deprived Appellant sterile water and medical supplies in order to harm him. In short, Appellant did not prove that the confinement officials had a “culpable state of mind.”
The court also found that Appellant failed the third Lovett prong because he did not exhaust the administrative remedies available to him and file an Article 138 complaint. The court acknowledged that in “rare circumstances” military appellate courts have excused an Appellant’s inability to satisfy the third prong, but the facts of this case did not fall into one of the rare exceptions.
Therefore, the court denied relief under the Eighth amendment and Art 55, UCMJ.
Sentence Appropriateness, Article 66(d), UCMJ
The court explained that Art 66(d)(1) of the UCMJ requires a Court of Criminal Appeal (CCA) to approve only so much of the sentence as it finds “on the basis of the entire record, should be approved.” As part of its sentence appropriateness review, a CCA should decline to affirm a part of the sentence it finds to be excessive. Importantly, citing Gay, the court noted that the courts discretion not to affirm part of a sentence must be based on some form of legal error in the post-trial process, not merely because the court disapproves of the sentence. Moreover, the review must be limited to information on the record through sentencing.
The court found “no legal error or deficiency in the post-trial process,” noting that the actions of the confinement officials conduct did not amount to an unlawful increase in the severity of Appellant’s sentence.
Furthermore, the court also held that because there was no information about Appellant’s post-trial confinement in the “entire record,” those details could not be considered in reviewing the sentence.
Timeliness of Post-trial Processing
Finally, Appellant argued that he was entitled to relief because his case was not docketed with the appellate court within the 30 days following the convening authority’s Decision on Action memorandum, which Appellant argues constitutes unreasonable delay and results in a due process violation.
Citing Livak, the court applied a 150-day gap between sentencing and docketing with the appellate court as the timeframe beyond which it would find a facially unreasonable delay. Because a total of only 83 days had passed between conclusion of trial and docketing, the court did not find a facially unreasonable delay. The court added that, even if there were a facially unreasonable delay, there would still be no due process violation under Moreno because the delay did not prejudice appellant.
Judge Meginley would have granted relief on the grounds of cruel and unusual punishment in violation of the Eighth Amendment and Art 55, UCMJ.
Judge Meginley first takes issue with the second prong of the Lovett test – requiring that an appellant show culpable intent on the part of the prison officials – because it is excessively difficult to prove the state of mind of confinement facility officials when the appellant has “little opportunity to question officials or gather evidence.” Judge Meginley therefore argues that the burden should not be on the appellant to show the culpable intent of the confinement officials, and as a result would have found that there was sufficient deliberate indifference to satisfy the second Lovett prong.
Judge Meginley also rejects the third Lovettprong’s requirement that an appellant file an Article 138, UCMJ complaint in order to exhaust his administrative remedies. Instead, Judge Meginley believes this requirement is arbitrary and inflexible.
As a result, Judge Meginley would have granted sentence relief due to Appellant’s post-trial treatment.
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