Opinion Analysis: A finding based on a theory not presented at trial means reversal in United States v. Bennitt, No. 12-0616/AR
CAAF decided the Army case of United States v. Bennitt, 74 M.J. 125, No. 12-0616/AR (CAAFlog case page) (link to slip op.), on Thursday, April 2, 2015. The court holds that the Army CCA erred in approving Appellant’s sentence, because the CCA made a finding based on a theory not presented at trial. CAAF reverses the decision of the Army court and remands the case for further action.
Judge Ryan write for the court. She is joined by all but Chief Judge Baker, who dissents.
CAAF granted review of a single issue:
Whether the Army Court of Criminal Appeals abused its discretion by reaffirming appellant’s approved sentence after this court set aside his conviction for manslaughter.
This is CAAF’s second opinion in this case. Previously, in a 2013 decision (CAAFlog case page), CAAF reversed Appellant’s conviction of involuntary manslaughter for his distribution of prescription opioid painkillers to his 16 year-old girlfriend (“LK”), who overdosed and died in Appellant’s barracks room in 2009. Yet Appellant also pleaded guilty to four specifications each of wrongful use and wrongful distribution of a controlled substance in violation of Article 112a, and CAAF remanded the case for reassessment of the sentence based on just those offenses. Despite the fact that Appellant was no longer convicted of manslaughter, the CCA affirmed the entire adjudged sentence (confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge) in two opinions:
The CCA explained that “[a]lthough appellant now stands acquitted of involuntary manslaughter, pursuant to Rule for CourtsMartial [sic] 1001(b)(4), LK’s death was directly related to appellant’s conviction for oxymorphone distribution. Therefore, the evidence underlying the dismissed charge was proper aggravation evidence . . . .” Bennitt II, 2013 CCA LEXIS 838, at *3-4, 2013 WL 5588229, at *1.
On a motion for reconsideration in light of United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), the CCA again reassessed, and did not change, Appellant’s sentence. United States v. Bennitt (Bennitt III), No. ACM 20100172, 2014 CCA LEXIS 188, at *11, 2014 WL 1246764, at *3 (A. Ct. Crim. App. Mar. 25, 2014) (unpublished). The CCA’s reasoning did change, however. The CCA concluded that evidence of LK’s death was admissible aggravation evidence because Appellant’s Article 112a, UCMJ, conviction of oxymorphone distribution on divers occasions on or about February 14, 2009, included distribution of the drug to LK. Bennitt III, 2014 CCA LEXIS 188, at *9-10, 2014 WL 1246764, at *3.
Slip op. at 2-3 (marks in original). Yet Judge Ryan finds fault with the CCA’s revised reasoning, concluding that “the CCA erred as a matter of law in its second reassessment when it stated that Appellant was convicted of distribution of oxymorphone to LK as part of his Article 112a, UCMJ, conviction.” Slip op. at 4. This was error because:
The CCA’s finding was based on “a theory not presented to the trier of fact.”
Slip op. at 9.