On August 7, 2020, the AFCCA affirmed the sentence of SSgt Yogendra Rambharose, as reassessed by the convening authority. The AFCCA found that Rambharose's assignments of error did not materially prejudice his substantial rights.
SSgt Yogendra Rambharose (Appellant) was charged with five specifications of abusive sexual contact by causing bodily harm in violation of Article 120, UCMJ, for groping three junior female co-workers. Appellant, contrary to his pleas, was convicted of two specifications of abusive sexual contact, and in accordance with his pleas, of two specifications of assault consummated by battery (a lesser included offense). The military judge sentenced Appellant to a bad-conduct discharge, confinement for 18 months, and reduction to the grade of E-1. The convening authority then reduced the term of confinement to 15 months, while approving the discharge and grade reduction.
On appeal, the Air Force Court of Criminal Appeals set aside one conviction of abusive sexual contact as factually insufficient, affirmed the remaining three convictions, and reassessed the sentence to a bad-conduct discharge, 13 months confinement, and reduction to the grade of E-1. Appellant then petitioned CAAF, who set aside AFCCA’s decision and remanded the record of trial to be reviewed in light of the CAAF’s decision in United States v. Hukill. On remand, the remaining conviction for abusive sexual contact was set aside, but the lesser included offense of assault consummated by battery for that specification and the other two convictions for assault consummated by a battery were affirmed. The case was then remanded to the convening authority with a rehearing authorized to review the greater offense of abusive sexual contact, as to the charge, and as to the sentence. The convening authority found that a “rehearing on the finding of guilt as to the greater offense of abusive sexual contact in Specification 1 of the Charge of the former proceedings, was found to be impractical.” However, the convening authority reassessed the sentence for the remaining findings of guilty to a bad-conduct discharge, 6 months confinement, and reduction to the grade of E-1, stating that “the reassessed sentence [was] appropriate based on the individualized consideration of [Appellant], the nature and seriousness of the offenses, [Appellant’s] record of service, and all matters contained in the record of trial.”
The issues raised by Appellant were: (1) whether it was improper for the convening authority to reassess the sentencewhere this court had not expressly authorized a reassessment; (2) whether it was improper for the convening authority to reassess the sentence given the dramatic change in the penalty landscape and impossibility of ascertaining how severe the punishment would have been absent the constitutional error at trial; (3) whether Appellant is entitled to sentence relief because the Air Force improperly discharged him while his appeal was pending; and (4) whether Appellant is entitled to relief for unreasonable post-trial delay.
The court found no error materially prejudicial to Appellant’s substantial rights and therefore, affirmed the sentence as reassessed by the convening authority.
The Court rejected Appellant’s argument that the convening authority requires explicit authorization in order to reassess the sentence and concluded that, as it did not “otherwise direct” the convening authority, it was under the convening authority's discretion to “reassess the sentence based on the approved findings of guilty.” The Court did not consider, however, whether court's authorization a rehearing as to the sentence should be considered as directing the convening authority to conduct a rehearing on the sentence, barring the convening authority from reassessing the sentence absent a rehearing.
2. Convening Authority’s Sentence Reassessment
Under Article 59(a), UCMJ, “[i]f the error at trial was one of constitutional magnitude,” the reviewing authority must be “persuaded beyond a reasonable doubt that its reassessment has rendered harmless any error affecting the sentence adjudged at trial.” United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986) (citing Chapman v. California, 386 U.S. 18 (1967)). In reviewing the convening authority’s determination de novo, and weighing the four factors identified by the CAAF in Winckelmann to assist in determining whether a sentence may be reliably reassessed, the Court found that the sentence reassessment by the convening authority was appropriate and that they were “satisfied beyond a reasonable doubt that, absent the constitutional errors, the military judge would have imposed a sentence no lower than that reassessed by the convening authority.”
The most significant consideration weighing against this conclusion is the substantial change to Appellant’s punitive exposure. At first glance, it seems impossible to determine what sentence the military judge would have imposed if presented with the three specifications of assault consummated by a battery, rather than the two specifications of abusive sexual contact and two specifications of assault consummated by a battery, as these are significantly higher convictions. The Court, however, emphasized the fact that “the evidence on which the military judge based her sentencing decision would have been substantially similar had Appellant been convicted at trial of only the three remaining offenses.” The military judge sentenced Appellant to a bad-conduct discharge, confinement for 18 months, and reduction to the grade of E-1, so given essentially the same evidence, it was reasonable to conclude that the military judge would not have sentenced Appellant to less than the convening authority’s final sentence of a bad-conduct discharge, confinement for 6 months, and reduction to the grade of E-1, despite the lesser charges. Yet it still seemed difficult to determine this beyond a reasonable doubt. Ultimately, while the Court conceded this factor does weigh against reassessment, they found that in considering the totality of the circumstances, they were able to determine beyond a reasonable doubt that the prejudicial effects of the previous constitutional errors had been removed.
3. Sentence Appropriateness
Appellant argued that he is entitled to relief for various adverse consequences suffered due to the Air Force Personnel Center prematurely separating him from the Air Force while his appeal was still pending. CAAF has interpreted Article 66(c), UCMJ, as establishing “a discretionary standard for sentence appropriateness relief award by the [CCAs]” if the CCA identifies a “legal error or deficiency.” United States v. Gay, 75 M.J. 264, 268 (C.A.A.F. 2016). However, this Court has found that Article 66(c) “does not extend [our] reach to all finance or personnel matters that may have some link to a court-martial sentence” United States v. Buford, 77 M.J. 562, 565 (A.F. Ct. Crim. App. 2017).
In Buford, this Court found that Article 66 did not authorize the court to review the asserted pay errors as they did “not concern the legality or appropriateness of an approved court-martial sentence,” but rather, were “plainly a collateral administrative matter.” Id. In the present case, CAAF concluded that the circumstances under which Appellant requests relief are similarly “administrative matter[s]” and therefore, the AFCCA declined to grant Appellant relief. Id.
4. Post-Trial Delay
The record of trial was not re-docketed with the court until 28 days after the convening authority took action, which the court notes exceeds the 30-day threshold for a presumptively unreasonable post-trial delay established by CAAF in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). However, considering the factors identified in Moreno—finding “no discernible prejudice from the delay,” no due process violation, and an absence of a demand for speedy post-trial processing—the Court concluded “the delay was not so egregious as to impugn the fairness and integrity of the military justice system” and as a result, Appellant is not entitled to relief for unreasonable post-trial delay.
Emily J. Eslinger
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