The AFCCA held that Nicholas A. Matichuk's findings and sentence were correct in law and fact, and that no error materially prejudiced his substantial rights.. Accordingly, the findings and sentence were affirmed.
Matichuk opinion here.
On August 19, 2020, AFCCA affirmed the sentence of Nicholas A. Matichuk (Appellant). Pursuant to his pleas and a pretrial agreement (PTA), Appellant was found guilty of one specification of wrongful use of a controlled substance on divers occasions and one specification of wrongful distribution of a controlled substance on divers occasions, in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. The military judge sentenced Appellant to a bad-conduct discharge, confinement for two months, forfeiture of $1,000.00 pay per month for two months, and reduction to the grade of E-1. Pursuant to Rule for Courts-Martial (R.C.M.) 1109(e)(2), due to Appellant's substantial assistance in the criminal investigation or prosecution of another person, the convening authority reduced the period of confinement to 30 days. On appeal, Appellant asserted one assignment of error: that his sentence was inappropriately severe. AFCCA found no prejudicial error, and affirmed.
Less than a year after entering active duty, Appellant began using lysergic acid diethylamide (LSD) with other active duty Air Force members and distributed LSD to other active duty Air Force members on multiple occasions. At trial, Appellant submitted to the convening authority a written request for reduction of his sentence in accordance with R.C.M. 1109(e). In support of this request, trial counsel noted that prior to his court-martial, Appellant had met with investigators from the Air Force Office of Special Investigations (AFOSI) and provided them with information that led to the investigation and preferral of charges against other members of his unit for similar drug offenses. Trial counsel asserted that Appellant's "assistance has substantially assisted the Government in prosecuting these drug cases."
With respect to Appellant’s argument that a similarly situated Airman had received a "nearly . . . identical sentence," despite being convicted contrary to his pleas, AFCCA noted that Appellant had already received some benefit from his guilty plea in the form of a favorable pre-trial agreement that dismissed a third specification charged against him. With respect to Appellant’s argument that his sentence was too severe in light of his testimony and cooperation in the prosecution of other Airmen, AFCCA held that this assistance had already been taken into account at the sentencing hearing. The adjudged sentence to confinement was below the maximum to which Appellant agreed in the pretrial agreement and less than half the amount Appellant's trial defense counsel conceded might be appropriate. Finally, AFCCA considered Appellant's argument that his sentence was inappropriate in comparison to the sentences received by other Airmen, but held that Appellant had not provided the court with sufficient information to determine whether these cases were sufficiently “closely related” to engage in sentence comparison. With these considerations in mind, the AFCCA found that Appellant's sentence was not inappropriately severe.
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