CAAF has granted review of what looks like another Winckelmann trailer:
No. 12-0516/AF. U.S. v. Michael S. TUNSTALL. CCA 37592. Review granted on the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) VIOLATED UNITED STATES v. BUBER, 62 M.J. 476 (C.A.A.F.2006), WHEN IT ONLY LOOKED AT THE CHANGE IN THE MAXIMUM POSSIBLE PUNISHMENT TO DETERMINE WHETHER THERE WAS A DRAMATIC CHANGE TO THE PENALTY LANDSCAPE, AND UNITED STATES v. MOFFEIT, 63 M.J. 40 (C.A.A.F. 2006), WHEN IT DID NOT USE THE PROPER STANDARD OF “BEYOND A REASONABLE DOUBT.”
No briefs will be filed under Rule 25.
This is the same case as United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013) (CAAFlog case page), where CAAF found that the trial judge erred in instructing the members on the offense of indecent acts as a lesser included offense of aggravated sexual assault, reversed the AFCCA on this issue, and remanded the case to the CCA for further proceedings. On remand, the AFCCA determined:
We are confident that we can reassess the sentence in accordance with the above authority. The appellant faced a maximum punishment of a dishonorable discharge, confinement for 36 years, total forfeiture of pay and allowances, and reduction to the grade of E-1. Setting aside Specification 2 of Charge I reduced the period of confinement from 36 years to 31 years. Thus, the penalty landscape is not substantially changed by the dismissal of this specification. Nevertheless, the dismissal of this specification could have some impact on the severity of the sentence adjudged.
Applying the criteria set forth in Sales, we are confident that, in the absence of Specification 2 of Charge I, the panel would have imposed at least a bad-conduct discharge, confinement for 4 months, reduction to E-1, and a reprimand. See Sales, 22 M.J. at 308. We reassess the sentence accordingly.
United States v. Tunstall, No. 37592, slip op. at 3 (A.F.Ct.Crim.App. Oct. 8, 2013) (op. on remand) (link to unpub. op.). The original findings were guilty of one specification of aggravated sexual assault, one specification of indecent acts (as a lesser included offense of a second specification of aggravated sexual assault), and one specification of adultery, in violation of Articles 120 (2007) and 134, UCMJ. The adjudged sentence was confinement for six months, a reprimand, reduction to E-1, and a bad-conduct discharge.
Update: CAAF summarily affirmed the AFCCA’s decision (daily journal, March 12):
No. 12-0516/AF. U.S. v. Michael S. TUNSTALL. CCA 37592. On consideration of the granted issue, __ M.J. __ (C.A.A.F. Daily Journal, March 5, 2014) (order granting review), and in view ofUnited States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.