United States v. Johansson, NMCCA 200401940 (N-M. Ct. Crim. App. May 31, 2007), was a seriously divided decision.
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.