CAAF decided the Army case of United States v. Winckelmann, No. 11-0280/AR, 73 M.J. 11 (Winckelmann IV) (CAAFlog case page) (link to slip op.), on December 18, 2013, finding that the Army CCA did not abuse its discretion when it decided to reassess Appellant’s sentence rather than remand the case for a sentence rehearing. CAAF affirms the CCA and denies further relief to Appellant, whose original sentence included confinement for 31 years, but after two reassessments that term of confinement was reduced to eleven years.
Chief Judge Baker writes for the court. Judges Stucky and Ryan write separately, concurring in the result.
Appellant (a Lieutenant Colonel in the Army) was convicted in 2007, pursuant to his pleas of guilty at a general court-martial composed of officer members, of two specifications of conduct unbecoming an officer and two specifications of indecent acts with another in violation of Articles 133 and 134, UCMJ. Additionally, contrary to his pleas, he was convicted of two additional specification of conduct unbecoming an officer in violation of Article 133, and one specification of possession of child pornography, three specifications of attempted enticement of a minor (in violation of 18 U.S.C. § 2422(b)), two specifications of communicating indecent language, and two specifications of obstruction of justice, all in violation of Article 134. The military judge merged some of the offenses for sentencing and Appellant was sentenced by the members to confinement for 31 years, total forfeitures, and a dismissal.
The Army CCA set aside the sole specification of possession of child pornography and one of the three specifications of attempted enticement of a minor in a 2010 opinion (Winckelmann I), and then reassessed the sentence, reducing the period of confinement from 31 years to 20 years. CAAF then reviewed the case and set aside a second of the attempted enticement specifications, remanding the case for reconsideration of three of the Article 134 charges in light of Fosler, in a 2011 opinion (Winckelmann II) (CAAFlog case page). On remand, the CCA set aside two of the charges under Article 134 due to the Government’s failure to charge a terminal element, and again reassessed the sentence, reducing the term of confinement to eleven years, in a 2012 opinion (Winckelmann III).
Appellant then petitioned CAAF, arguing that rather than “reassess” the sentence, the CCA should have remanded the case for a sentence rehearing (an entirely new sentencing hearing, but where Appellant could not receive an approved sentence greater than the original sentence). CAAF granted review of a single issue:
Whether the Army Court of Criminal Appeals, after disapproving the findings of guilty for Charge IV and its Specifications and after considering this Honorable Court’s decision dismissing Specification 3 of Charge III, erred by reassessing appellant’s sentence to confinement, first from 31 years to 20 years (in their initial decision), and then from 20 years to 11 years (in a subsequent decision), rather than directing a sentence rehearing.
The Chief Judge’s majority opinion traces the history of sentence reassessments, beginning further back in time than my argument preview in this case. It starts with the Supreme Court’s consideration of a sentence reassessment in the military murder/rape habeas case of Jackson v. Taylor, 353 U.S. 569 (1957):
In Jackson v. Taylor, the appellant was convicted of premeditated murder and attempted rape, and received a life sentence. The board of review set aside the murder conviction, reassessed the sentence and affirmed a term of confinement of twenty years. Jackson argued before the Supreme Court that the board should have ordered a rehearing on sentence and that it lacked authority to impose the twenty-year sentence to confinement.
Slip op. at 7 (citations omitted). Jackson lost.