United States v. Private First Class ALLEN H. TAPP ( 2015 )

                              MULLIGAN, HERRING, and BURTON
                                  Appellate Military Judges
                                UNITED STATES, Appellee
                            Private First Class ALLEN H. TAPP
                               United States Army, Appellant
                                       ARMY 20130776
                              Headquarters, 7th Infantry Division
                               Jeffrey D. Lippert, Military Judge
                  Lieutenant Colonel Michael S. Devine, Staff Judge Advocate
    For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
    Robert H. Meek, III, JA (on brief).
    For Appellee: Major A.G. Courie, III, JA; Major John K. Choike, JA; Captain John
    Gardella, JA (on brief).
                                        23 October 2015
                                   SUMMARY DISPOSITION
    Per Curiam:
           A military judge sitting as a general court-martial convicted appellant,
    consistent with his pleas, of possession of child pornography, as defined by 18
    U.S.C. § 2286(8), and three specifications of communicating indecent language to a
    child under the age of sixteen years in violation of Article 134, Uniform Code of
    Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The military judge
    sentenced appellant to a bad-conduct discharge, confinement of thirty-six months,
    and a reduction to the grade of E-1. The convening authority only approved so much
    of the sentence providing for a bad-conduct discharge, confinement for fourteen
    months, and a reduction to the grade of E-1. Although the terms of a pretrial
    agreement capped confinement at fifteen months, the convening authority approved
    only fourteen months confinement due to the delays in the post-trial processing of
    the case.
    TAPP—ARMY 20130776
           Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
    Appellant raises one assignment of error which lacks merit. However, we have
    identified two issues that warrant discussion, one of which warrants relief.
           The first issue involves delays in appellant’s post-trial processing. The
    convening authority took action 253 days after the sentence was adjudged. The
    actual trial transcript is only 138 pages. The record is silent as to the government’s
    reason for taking this long to complete post-trial processing. The convening
    authority, in reducing appellant’s sentence to confinement by one month to
    “…compensate for the delays in the post-trial processing of this case” nonetheless
    conceded the unreasonableness of this delay. Although we find no due process
    violation in the post-trial processing of appellant’s case, we must still review the
    appropriateness of appellant’s sentence in light of this excessive delay. UCMJ art.
    66(c); United States v. Tardif, 
    57 M.J. 219
    , 224 (C.A.A.F. 2002) (“[Pursuant to
    Article 66(c), UCMJ, service courts] must determine what findings and sentence
    ‘should be approved,’ based on all the facts and circumstances reflected in the
    record, including the unexplained and unreasonable post-trial delay.”); see generally
    United States v. Toohey, 
    63 M.J. 353
    , 362-63 (C.A.A.F. 2006; United States v. Ney,
    68 M.J. 613
    , 617 (Army Ct. Crim. App. 2010); United States v. Collazo, 
    53 M.J. 721
    , 727 (Army Ct. Crim. App. 2000).
            Upon examining the entire record, including appellant’s Rule for Court-
    Martial 1105 submission and the action by the convening authority, we find relief is
    not warranted. Any appearance of harm caused by the government’s delayed post-
    trial processing was ameliorated by the convening authority’s action in approving
    only that portion of appellant’s sentence to confinement extending to fourteen
            The second issue involves Specification 1 of The Charge wherein appellant
    pleaded guilty by exceptions and substitutions to knowingly possessing ninety-five
    images of child pornography. 1 These images were sealed in the record of trial as
    attachment 1 to Pros. Ex. 1, the stipulation of fact admitted at trial. We have
    determined five of these images are in fact duplicates of other images contained in
    this attachment. 2
          Accordingly, we will replace the words “ninety-eight” as they appear in
    Specification 1 of Charge I with the word “ninety” in our decretal paragraph.
      General Court-Martial Order Number 11, dated 21 April 2014, incorrectly reflects that appellant
    pleaded guilty to possession of ninety-eight images of child pornography. This error will be
    corrected in conjunction with the relief specified in our decretal paragraph.
      Images with the file names 0021.jpg, 0022.jpg, 0027.jpg, 0048.jpg and 0018-1.jpg are duplicates
    of 0011-1.jpg, 0016-1.jpg, 0013-1.jpg, 0010-1.jpg and 0026-1.jpg, respectively.
    TAPP—ARMY 20130776
          On consideration of the entire record we affirm only so much of Specification
    1 of The Charge as provides,
                 In that, Private First Class (E-3) Allen H. Tapp, U.S. Army,
                 did, at or near Joint Base Lewis-McChord, Washington, on
                 or about 18 April 2011, wrongfully and knowingly possess
                 ninety images of child pornography as defined by Title 18
                 United States Code Section 2256(8), such conduct being of
                 a nature to bring discredit upon the armed forces.
    The remaining findings of guilty are AFFIRMED. Reassessing the sentence on the
    basis of the error noted, the entire record, and applying the principles of United
    States v. Sales, 
    22 M.J. 305
    , 308 (C.M.A. 1986) and the factors set forth in United
    States v. Winklemann, 
    73 M.J. 11
    , 15-16 (C.A.A.F. 2013), we are confident the
    military judge would have adjudged the same sentence.
           In applying the Winklemann factors, our decision does not result in a change
    in the penalty landscape or exposure because appellant’s maximum punishment
    remains the same. Id. at 15-16. Additionally, appellant chose sentencing before a
    military judge alone. We are confident as judges of this court in gauging the
    sentence the military judge would have adjudged. Id. at 16. Further, this correction
    does not change the gravamen of the offenses. Appellant remains convicted of a
    specification of possessing child pornography and three specifications of
    communicating indecent language to a child under the age of sixteen years in
    violation of Article 134, UCMJ. Id. A finding of guilty as to five fewer images
    does not mitigate the seriousness of the appellant’s offenses when viewed in their
    totality. Finally, this court reviews a substantial number of courts-martial involving
    child pornography and communication of indecent language to a child under the age
    of sixteen years. We have extensive experience and familiarity with such cases to
    reliably determine what sentence would have been imposed at trial. Id.
          The sentence is AFFIRMED. All rights, privileges, and property of which
    appellant has been deprived by virtue of the findings set aside by this decision, are
    hereby ordered restored.
                                            FOR THE COURT:
                                            FOR THE COURT:
                                            JOHN P. TAITT
                                            DeputyP. TAITT
                                                   Clerk of Court
                                            Deputy Clerk of Court

Document Info

DocketNumber: ARMY 20130776

Filed Date: 10/23/2015

Precedential Status: Non-Precedential

Modified Date: 10/26/2015