United States v. Specialist JONATHAN D. PEREZ ( 2016 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, HERRING, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JONATHAN D. PEREZ
United States Army, Appellant
ARMY 20140117
Headquarters, United States Army Alaska
Jeffery D. Lippert, Military Judge
Colonel Tyler J. Harder, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Brian
D. Andes, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Christopher A. Clausen, JA (on brief).
29 February 2016
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of one specification of willfully disobeying a superior
commissioned officer and two specifications of abusive sexual contact, in violation
of Articles 90 and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 920
(2012) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for four months, and reduction to the grade of E-1. The
convening authority approved the findings and sentence as adjudged.
We review appellant’s case pursuant to Article 66, UCMJ. We have considered
matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), one of which merits discussion and relief. The other matters are
without merit. Appellant assigns one error which warrants discussion but no relief.
PEREZ—ARMY 20140117
A. Providency to Abusive Sexual Contact
Appellant pleaded guilty to and was convicted of, inter alia, abusive sexual
contact on two occasions upon Mrs. HLP, by “touch[ing] her buttocks and genitals
with his hand.” Specification 1 of Charge II involved sexual contact when appellant
“knew or reasonably should have known that Mrs. HLP was asleep,” and
Specification 2 of Charge II involved sexual contact “by causing bodily harm.” The
stipulation of fact for both offenses described the touching as “direct touching and
touching through the clothing of Mrs. HLP’s genitalia, buttocks, and breasts.” The
military judge defined the term sexual contact as “touching or causing another
person to touch, either directly or through the clothing, the genitalia, anus, groin,
breast, inner thigh, or buttocks of any person.” Notably, the government did not
charge appellant with unlawful touching of Mrs. HLP’s breasts, although the
stipulation of fact did include those facts.
In the providence inquiry between the accused and military judge, the accused
initially stated for Specification 1 of Charge II: “I would put my hands on her
breasts. I knew that she was asleep. I touched her breasts and butt in order to mess
with my wife.” Later in the inquiry for the same specification, the military judge
and the accused discussed the touching as follows:
MJ: On this occasion, you did not touch her groin?
ACC: Um, no – I would not go – I would touch my wife, I
would put my hands down by her panty line – she has a
tattoo there, it’s like right above her genitals, and I would
just put my hand there and mess with that.
[. . .]
MJ: And her tattoo was where exactly?
ACC: Right above her genitals.
[. . . ]
MJ: Specialist Perez, I’d like you to stand up for me and
indicate to me on your body where your wife’s tattoo was
that you were touching or fondling.
ACC: [Stands up.] My wife’s tattoo is right above her
genitals, like maybe half an inch, sir [indicating his groin
area].
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PEREZ—ARMY 20140117
MJ: Is it above or below where her pubic hair would be?
ACC: It was dead center, sir.
MJ: Okay. All right. So, it’s on her pubic mound?
ACC: Yes, sir. It’s just right there, sir.
MJ: Right there. Okay. You can sit down. Thank you. The
accused indicated an area in the groin area.
After the government and the defense agreed on the judge’s description of the
appellant’s physical posturing, the providence inquiry moved on to Specification 2
of Charge II. The appellant described his conduct as “I would play with my wife’s
bust and butt and put my hands at her panty line to mess with her.” When pointing
out the discrepancy in the stipulation of fact, the military judge noted:
MJ: Okay. The next sentence says, “When they got into
disagreements, the accused would force his hands down
Mrs. HLP’s pants, touching her buttocks and genitals.” Is
that accurate?
ACC: I mean when we got into disagreements, I would try
to leave the house. When I got mad, I like going for a
drive. I don’t want to touch my wife, I don’t want to see
my wife.
The military judge then asked appellant, “So that’s not entirely accurate?” And
appellant responded “No, sir.” Shortly thereafter, the judge described the
appellant’s conduct as “you touched her on her buttocks and on her breasts and in
her groin area when she was awake, even though you believed that she didn’t want
you to touch her.” Appellant agreed with the military judge’s description. The
accused also agreed with the military judge’s final description as “you touched your
wife’s buttocks and genitals, which would be her groin area, around the area we
discussed where her tattoo is, without her consent.”
In matters raised pursuant to Grostefon, appellant contends “the military
judge erred in accepting appellant’s guilty plea to Specifications 1 and 2 of Charge
II, abusive sexual contact, where appellant states he never touched Mrs. HLP’s
genitals as charged.” We review a military judge’s decision to accept a guilty plea
for an abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.
2008) (citing United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)). A guilty
plea will only be set aside if we find a substantial basis in law or fact to question the
plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We
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PEREZ—ARMY 20140117
apply this “substantial basis” test by determining whether the record raises a
substantial question about the factual basis of appellant’s guilty plea or the law
underpinning the plea. Id.; see also UCMJ art. 45(a); Rule for Courts-Martial
[hereinafter R.C.M.] 910(e).
We agree with appellant that “genitals” is not the same as “groin” or “groin
area” as described by the military judge. The military judge’s Benchbook does not
expressly define “genitals,” but it does define “female sex organ” as “includes not
only the vagina, which is the canal that connects the uterus to the external genital
opening of the genital canal, but also the external genital organs including the labia
majora and the labia minora. ‘Labia’ is the Latin and medically correct term for
‘lips.’” Dep’t. of Army, Pam. 27-9, Legal Services: Military Judge’s Benchbook
[hereinafter Benchbook], para. 3-45-1(d) (10 Sept. 2014). In the creation of Article
120, Congress expressly delineated genitalia and groin in defining sexual contact.
See 10 U.S.C. § 920(g)(2)(A) (2012). “A statute should be construed so that effect
is given to all its provisions, so that no part will be inoperative or superfluous, void,
or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009), see also 2A
Norman J. Singer & J. D. Shambie Singer, Sutherland Statutes and Statutory
Construction § 46:6, 245 (7th ed. 2014).
Because of the differentiation by Congress in Article 120 of “genitalia” and
“groin,” for either the military judge or this court to substitute “groin” for the
charged “genitals” would constitute a material, and possibly fatal, variance. See
generally, United States v. Treat, 73 M.J. 331 (C.A.A.F. 2014). Here, the military
judge failed to elicit a sufficient factual basis of appellant touching Mrs. HLP’s
genitals. Accordingly, we will set aside “genitals” in the affected specifications in
our decretal paragraph.
B. Dilatory Post-Trial Processing
The convening authority took action 357 days after the sentence was
adjudged. Although we find no due process violation in the post-trial processing of
appellant’s case, we must still review the appropriateness of the sentence in light of
the alleged dilatory post-trial processing. 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
are] required to 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).
Here, significant delay was caused by a late submission of R.C.M. 1105
matters (Post-Trial Matters) from the defense counsel. Furthermore, there is no
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PEREZ—ARMY 20140117
evidence appellant demanded speedy post-trial processing until submission of those
same Post-Trial Matters, 330 days after appellant’s court-martial. We decline to
grant relief under these circumstances.
CONCLUSION
The court affirms only so much of the finding of guilty of Specification 1 of
Charge II as finds that:
[Appellant], U.S. Army, did, at or near Joint Base
Elmendorf-Richardson, between on or about 01 June 2012
and on or about 21 August 2013, commit sexual contact
upon Mrs. HLP, to wit: touch her buttocks with his hand,
when the accused knew or reasonably should have known
that Mrs. HLP was asleep.
The court affirms only so much of the finding of guilty of Specification 2 of
Charge II as finds that:
[Appellant], U.S. Army, did, at or near Joint Base
Elmendorf-Richardson, between on or about 01 June 2012
and on or about 21 August 2013, commit sexual contact
upon Mrs. HLP, to wit: touch her buttocks with his hand,
by causing bodily harm to her, to wit: the non-consensual
touching of Mrs. HLP with his hand.
The remaining findings of guilty are AFFIRMED.
Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of United States v. Sales, 22 M.J. 305, 307-08
(C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013), we are confident the military judge would have adjudged at least as severe a
sentence as that which the convening authority ultimately approved. The approved
sentence is AFFIRMED. All rights, privileges, and property, of which appellant has
been deprived by virtue of those findings set aside and dismissed by this decision
are ordered restored.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
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