Below is a brief description of a recent AFCCA opinion.
The Appellant had been previous been found guilty of dereliction of duty for pursuing sexual relationships and unprofessional dating relationships with junior airmen, as well for sexual assaulting a junior airman, violating 10 U.S.C. § 892 (3) and 10 U.S.C. § 920. The court-martial sentenced the Appellant to a bad-conduct discharge, a one year imprisonment and reduction to E-3.
In a previous appeal, the Appellant successfully challenged his dereliction of duty for unprofessional dating relationships and his sexual assault charges, both due to factual insufficiency. The trial judge had set aside the sentence and ordered a rehearing on the remaining charges, but the Appellant had already completed his year-long sentenced before a decision was reached.
During a rehearing, the Appellant was sentenced to a reduction to E-5 paygrade and a reprimand. The Appellant now challenges his sentence alleging that (1) the military judge did not consider his year-long imprisonment during sentencing, (2) his counsel was not conflict-free as counsel understudied the judge following the court martial and (3) that the remaining charges are vague.
The Court found that there was no prejudicial error and affirmed the sentence.
The Military Judge advised the Appellant that if he chose to have a Military Judge rehear the case, the Judge would not consider the sentence. Both parties agreed that the sentence could not exceed the original sentence and that the Appellant could not gain pretrial confinement credit.
Under R.C.M. 810(d), a Military Judge is not required to consider a previous sentence during a rehearing and cannot issue confinement credit.
The Military Judge ruled that considering the yearlong sentence would lead undermine the court’s ability to issue an independent ruling on the case, thus the Military Judge did not abuse his discretion.
Conflict-Free Trial Defense Counsel
The Court found that there was no merit to this allegation and did not discuss it.
The Court had previously heard and rejected claims that the statute in question was vague in 2017. The Court declined to address this challenge.
The Court considered whether the Appellant’s right to due process and a speedy post-trial appeal were violated, as the case was docketed five days later than the Court of Criminal Appeals requires. Given the delay, the Court examined whether there was oppressive incarceration, anxiety and concern or impairment of the appellant’s ability to present a defense. Given that the Appellant was not sentenced to confinement and did not raise any concerns regarding possible impairments and anxiety, the Court found that there was no due process violations. Furthermore, the delay was not so unreasonable to create public distrust of the fairness of military justice system, thus there was no due process violations.
The Court found no prejudicial error and affirmed the sentence.