Recently, the AFCCA decided United States v. Cink, in which the Court reviewed an involuntary manslaughter conviction.
Cink (E-4) was sentenced to confinement for six years, dishonorable discharge, forfeiture of all pay/allowances, and reduction to E-1. Cink’s sentence stems from a pre-trial agreement pursuant to one specification of involuntary manslaughter in violation of Article 119, UCMJ, 10 U.S.C. § 919. The AFCCA affirmed.
On June 18, 2016, Cink consumed 10-12 beers in 4 hours. At 1800, Cink drove himself, his brother and their friend home (a 40-mile drive). An hour into the drive, Cink failed to stop at a stop sign and collided with an SUV. The SUV contained the driver (DA), her mother (LAR), and two of DA’s young children (PA and EA). LAR was killed in the accident. Cink’s BAC was 0.282, three times greater than Texas’s legal limit. After trial, Cink was confined for almost two months. Nine statements were submitted to the military judge on behalf of DA and eight of her children.
Cink raised three issues on appeal: (1) whether the military judge erred by considering unsworn statements written by the victim’s grandchildren pursuant to R.C.M. 1001A because they were not offered by the grandchildren themselves or through a designee; (2) whether Cink is entitled to relief due to his post-trail confinement, and (3) whether Cink is entitled to a new post-trial process because the Government failed to serve him with a copy of the record of trial.
Under US v. Barker, 77 M.J. 377 (C.A.A.F. 2018), all procedures in R.C.M. 1001A contemplate actual participation of the victim, and the statement being offered by the victim or through her counsel. A victim exercises the right to be heard by offering an unsworn victim impact statement in person or through a designee. Here, the statements were not offered by the victim(s) or their advocate(s) as R.C.M. 1001A requires. The military judge here appointed DA to be the representative for PA and EA only. None of the other grandchildren offered a statement personally, via counsel, or through a designated representative. Even though the military judge erred, the Court stated that the error did not substantially influence the adjudged sentence. The Court held that the statements were not of a nature to change the trajectory of the sentencing case—their materiality in light of the case was low.
Under US v. Gay, the Court applies the Supreme Court’s interpretation of the Eighth Amendment to claims raised under Article 55, UCMJ. Cink did not assert that the conditions of his confinement violated the Eight Amendment or Article 55, UCMJ. Cink filed no grievances or Article 138, UCMJ, complaints during his confinement. Cink’s quarters could house up to six people. The Court found that Cink’s case is not one of those rare situations in which the conditions of confinement warrant sentence relief in the absence of an Eight Amendment of Article 55, UCMJ, violation. See US v. Ferrando, 77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017).
Cink asserted the Government failed to provide him with a copy of the record as required under Article 54(d), UCMJ, 10 U.S.C. § 854(d). The record included a receipt, signed by Cink, indicating proper service on October 24, 2018. For this reason, the Court rejected Cink’s third contention.