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Corporal Johansson was convicted contrary to his pleas and sentenced to seven years, a DD, total forfeitures, and reduction to E-1 for forcible sodomy with a child under the age of 12 and committing an indecent act upon the body of a child under the age of 16. NMCCA reversed the conviction on the forcible sodomy charge but nevertheless affirmed the sentence as adjudged. A two-judge majority held that "we are not convinced beyond a reasonable doubt that the evidence establishes the appellant penetrated the victim's sexual organ." While the court noted that indecent acts with a child under 16 is an LIO of the forcible sodomy offense, Johansson had already been found guilty in the second charge of the non-penetration aspects of that misconduct. Accordingly, the court "set aside the finding of guilt to Charge I and the specification thereunder, and affirm[ed] only the finding of guilt to Charge II and its sole specification."
NMCCA then "reassessed" the sentence:
Applying the analysis set forth in United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006) and United States v. Sales, 22 M.J. 305 (C.M.A. 1988), and after carefully considering the entire record, we are satisfied beyond a reasonable doubt that, even if the appellant had not been convicted of Charge I, the court-martial would not have adjudged a sentence less than that approved by the convening authority in this case.Yeah, right. Two Navy captains sitting in the Washington Navy Yard in 2007 somehow divined that the officer and enlisted members at Parris Island in 2003 hadn't given Cpl Johannson even a single day's extra confinement because he was found guilty of two offenses rather than one or because they believed that he had penetrated his victim's vagina with his tongue. Such a claim strains credulity.
CAAF was not in a credulous mood on Thursday. In a summary disposition, it reversed NMCCA's affirmance of the sentence and told them to try again. United States v. Johansson, __ M.J. ___, No. 07-0696/MC (C.A.A.F. Mar. 20, 2008) (summary disposition). CAAF ruled:
[I]t is unclear whether the Court of Criminal Appeals considered the dramatic change in the sentencing landscape when it reassessed the sentence. See United States v. Buber, 62 M.J. 476 (C.A.A.F. 2006). Accordingly, said petition is granted on the following issue raised by Appellant:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY REASSESSING APPELLANT'S SENTENCE IN A MANNER THAT DID NOT AFFORD APPELLANT ANY RELIEF.
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings, but reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals. The Court of Criminal Appeals may reassess the sentence based on the affirmed findings of guilty after considering the dramatic change in the sentencing landscape or order a rehearing on sentence. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000) shall apply.
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5 comments:
I guess appellate judges, at least at NMCCA, are not presumed to know and follow the law.
"The law" is not at issue here. This is a pure sentencing matter. Sentencing is largely discretionary, with broad legal boundaries. The difference between, say, 20 months of confinement, versus, say 30 months of confinement, is not really a "legal" issue. So your alluded to "presumption" is irrelevant.
But, truth be told, NO! NMCCA judges are NOT presumed to know the and follow the law. They sometimes follow their gut instincts and garnish it with the most plausible legal citation.
I didn't realize that sentencing was divorced from law. And if "gut instinct" is a substitute for the law why have any rules for sentencing at all?
Although biased as the trial defense counsel in this case, I have to add that the sentence adjudged--7 years confinement--was the maximum confinement that could be given for the remaining specification of indecent acts with a child. Compare this to the life sentence that was available to the members for forcible sodomy of a child. I think CAAF got it right that with such a vast difference between the charge set aside on appeal and what remains, there needs to be an actual sentence reassessment or a rehearing.
Well, OK, I guess sentencing is not divorced from "the law." But, in the context of the alluded to presumption, it has no effect or relevance. Except, of course, that appellate judges are presumed to know the sentence maximum and to approve no more.
Otherwise, "the law" on sentencing is simply a broad mandate for the sentencing authority to use its discretion. So my comment is limited to the context of sentence reassessment: there is no presumption to follow.
But, anon 1, if you think there is such a sentencing presumption, pray tell, what is it?
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