An Air Force JAG certificate of review was filed at CAAF today, seeking review of the Air Force Court’s unpublished decision in United States v. Perez, No. ACM 36799 (A.F. Ct. Crim. App. Sept. 12, 2007). (The Air Force Court’s opinion is available here. Thanks, JMTGst!)
Senior Airman Perez was found guilty of rape, disobeying an order, and assault consummated by a battery. The military judge sentenced him to confinement for 18 months, a BCD, and reduction to E-1. After trial, the SJA’s office discovered that the alleged rape victim had recanted. The CA ordered a post-trial Article 39(a) session. The military judge then found that credible evidence existed that the alleged victim had recanted and that that new evidence warranted a new trial. He also stated that had he been aware of the new evidence, he would not have convicted Perez of rape and that he would have imposed a sentence of only confinement for six months, reduction in grade, and total forfeitures for the remaining offenses.
Rather than order a new trial, the convening authority disapproved the finding of guilty to the rape offense. At the SJA’s advice, the CA approved a sentence of a BCD, confinement for 206 days, and reduction to E-1. (Note that the MJ had said his sentence for the remaining offenses would not have included a punitive discharge.)
The issue before the Air Force Court was whether this action by the convening authority was an unreviewable exercise of clemency or a legal matter that could be subjected to the equivalent of a Sales/Peoples analysis. The Air Force Court concluded that it was the latter. The court reasoned:
In this case, although there was no error at the time of trial, thereafter new evidence was discovered. This evidence met the criteria, under R.C.M. 1210, for a new trial. Rather than ordering a rehearing on findings and sentencing or sentencing only, the convening authority decided to take other corrective action designed solely to provide an expeditious means to correct the error. See R.C.M. 1107(c)(2)(A), Discussion. In the case sub judice, the actions of the convening authority amount to corrective action based upon errors (new evidence) rather than action in the form of clemency.
The court then ruled that the CA erred in his reassessment when he approved a sentence greater than that which the MJ would have adjudged. The court reasoned:
The convening authority had the benefit of knowing exactly what the sentencing authority would have done, but he reassessed a sentence greater than that which the sentencing authority would have imposed absent the error (new evidence). Under the unique circumstances of this case, the correct standard would have been to order a sentence rehearing or apply the above referenced standard for sentence reassessment.
The correctness of that ruling is now before CAAF.