An Opportunity Missed

SrA Perez pled guilty to disobeying an order and assault consummated by a battery. A military judge also convicted him of rape. The judge sentenced SrA Perez to a BCD, confinement for 18 months, and reduction to E-1--that must have been some rape or some judge to garner such a light sentence for such a serious offense. United States v. Perez, No. 36799 (A.F. Ct. Crim. App. Sep. 12, 2007).

After trial but before the record was authenticated, the legal office learned that the victim of the rape may have recanted. Rather than contact the judge, which they should have done, the legal office decided to conduct an investigation. By the time the investigation was completed the judge had already authenticated the record. The convening authority ordered the military judge to determine two issues: (1) Whether or not credible evidence existed that the alleged victim had recanted her in-trial testimony; and (2) Whether, if recanted, it amounted to "new evidence" which meets the R.C.M. 1210 standard for a new trial. The trial judge answered both questions affirmatively, but decided that the convening authority need to know more than he asked. The military judge noted that based on the new evidence he would have acquitted the accused of rape and would have sentenced him to confinement for 6 months, reduction to E-1, and total forfeitures, and no BCD.

Apparently under R.C.M. 1107(c)(2)(A), the convening authority disapproved the finding of guilty to the rape charge and apparently under R.C.M. 1107(d)(2), reassessed the sentence to a BCD, confinement for 206 days, and reduction to E-1 (the max confinement was for 12 months). R.C.M. 1107(d)(2), provides that "[t]he convening authority shall approve that sentence which is warranted by the circumstances of the offense and appropriate for the accused."

The Air Force Court of Criminal Appeals makes an interesting observation:

In reassessing a sentence, the only guidance (although not on point) provided to the convening authority is found in R.C.M. 1007. That Rule, and specifically R.C.M. 1107(e)(1)(B)(iv), provides the convening authority with an avenue to forego a rehearing after a superior authority has disapproved some of the findings of guilty based upon prejudicial error. Reasessment is appropriate only when the convening authority determines that the sentence would be at least a certain magnitude had the prejkudicial error not been committed and the reassesses sentence is appropriate in relation to the affirmed findings.

The AFCCA then claims that 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)." The court then asserts that the convening authority should have ordered a sentencing rehearing or reassessed the sentence to that which the military judge would have applied. So the court corrects the "error" by affirming only so much of the sentence as provides for confinement for 6 months and reduction to E-1.

(1) Strange that after noting the dearth of case law on such an issue, the court decided not to publish this case.

(2) The court suggests the only guidance found in the MCM is R.C.M. 1107(e)(1)(B)(iv), and that it isn't really on point. But R.C.M. 1107(c)(2)(A) and (d)(2) appear to be on point, and the court fails to discuss why they aren't. R.C.M. 1107(c)(2)(A) provides that the may in his sole discretion set aside a finding of guilty and "shall approve the sentence that is warranted by the circumstances of the offense and appropriate for the accused." I'm not sure where they get the authority to decide differently.