United States v. Sergeant TERRACE L. SOLOMON ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant TERRACE L. SOLOMON
United States Army, Appellant
ARMY 20160456
Headquarters, United States Army Alaska
Sean F. Mangan, Military Judge
Colonel Erik L. Christiansen, Staff Judge Advocate
For Appellant: Captain Catherine E. Godfrey, JA; Zachary Spilman, Esquire (on
brief and reply brief)
For Appellee: Colonel Steven P. Haight, J A; Lieutenant Colonel Wayne H.
Williams, JA; Major Hannah E. Kaufman, JA; Captain Christopher T. Leighton, JA
(on brief).
10 March 2020
SUMMARY DISPOSITION ON FURTHER REVIEW
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
FLEMING, Judge:
In our second review of appellant's case under Article 66, UCMJ, we dismiss
an additional specification and reassess his sentence. 1
1An enlisted panel sitting as a general court-martial convicted appellant contrary to
his pleas of two specifications of violating an order from a superior commissioned
officer, two specifications of insubordinate conduct towards a superior
noncommissioned officer, one specification of assault consummated by a battery of a
child under the age of sixteen, three specifications of assault consummated by a
battery, one specification of simple assault, and one specification of using language
( continued ... )
SOLOMON-ARMY 20160456
Appellant raised eight assignments of error in our first review under Article
66, UCMJ. 2 See United States v. Solomon, ARMY 20160456, 2019 CCA LEXIS 149
(Army Ct. Crim. App. 3 Apr. 10) (mem. op.). We issued a lengthy memorandum
opinion affirming, dismissing, and setting aside various specifications and setting
aside the sentence. Id. at * 3 6-3 7 We remanded the case and provided the same or
a different convening authority with two options: "1) order a rehearing on
Specification 2 of Charge III and the sentence; or 2) dismiss Specification 2 of
Charge III and reassess the sentence, affirming no more than a bad-conduct
discharge, confinement for twenty-four months, forfeiture of all pay and allowances,
and reduction to the grade of E-1. " 3 Id. at *3 7. As to the second option, we stated:
In reassessing the sentence, we are satisfied that the
sentence adjudged on the offenses we affirm would have
been at least a bad-conduct discharge, confinement for
twenty-four months, forfeiture of all pay and allowances,
and reduction to the grade of E-1. See United States v.
Sales, 22 M.J. 305, 308 (C.M.A. 1986); United States v.
( ... continued)
that was prejudicial to good order and discipline and was of a nature to bring
discredit on the armed forces, in violation of Articles 90, 91, 128, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 890,891,928,934 [UCMJ]. The panel
sentenced appellant to a dishonorable discharge, confinement for twelve years, total
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority disapproved the findings of guilty to one of the specifications of
assault consummated by a battery and the specification of using language that was
prejudicial to good order and discipline and was of a nature to bring discredit on the
armed forces. The convening authority approved only so much of the sentence
extending to a dishonorable discharge, confinement for three years, total forfeiture
of all pay and allowances, and reduction to the grade of E-1. The convening
authority also credited appellant with 243 days of pretrial confinement credit against
the sentence to confinement.
2We determined two errors merited discussion; one of which merited relief. We
determined one of the two matters filed by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), merited relief. Solomon, 2019 CCA LEXIS
149, at *3, 37.
3As to any sentence to confinement, appellant was credited with the 243 days of
pretrial confinement credit originally granted at trial and with an additional 86 days
of confinement credit for the government's noncompliance with R.C.M. 305. Id. at
*37.
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SOLOMON-ARMY 20160456
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). This
reassessment, being both appropriate and purging the
record as it stands of error, does not otherwise limit the
sentence that may be adjudged at a rehearing. See UCMJ,
art. 63.
Id. at *37 n. 23.
In September 2019, the convening authority selected our second option by
dismissing Specification 2 of Charge III, reassessing the sentence, and approving a
bad-conduct discharge, confinement for twenty-four months, forfeiture of all pay and
allowances, and reduction to the grade of E-1.
Appellant's case is again before us for review pursuant to Article 66, UCMJ.
Appellant renews seven assignments of error previously raised during our initial
review and asserts three new assignments of error. One of appellant's new
assignments of error merits discussion but no relief. 4
LAW AND DISCUSSION
Appellant now asserts the convening authority was not authorized to reassess
his sentence after our court set the sentence aside. We pause to note that appellant
did not file a request for reconsideration regarding this alleged legal error with our
court after our issuance of our memorandum opinion. Appellant did, however, in his
Rule for Courts-Martial (R.C.M.) 1105 submission to the convening authority assert
"[t]he Army court is wrong. " 5 Despite his assertion of error, appellant urged the
convening authority to approve a sentence of no punishment - a defense request the
convening authority denied.
Having now notified our court of this alleged error, we will assume, without·
deciding, that our court erred in granting the convening authority the ability to
4We have given full and fair consideration to all of appellant's other assignments of
error and the matter raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), and find they merit neither discussion nor relief.
5 Pursuant to R.C.M. 1105, after a sentence is adjudged, an accused may submit
matters to the convening authority "[t]hat may reasonably tend to affect the
convening authority's decision whether to disapprove any findings of guilty or to
approve the sentence, except as may be limited by R.C.M. l 107(b)(3)(C)." An
accused's submissions may include "[a]llegations of errors affecting the legality of
the findings or sentence." R.C.M. l 105(b)(2)(A).
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SOLOMON-ARMY 20160456
reassess appellant's sentence after we set the sentence aside. Even if we erred, this
court then possessed and still possesses the authority to reassess appellant's
sentence. See Winckelmann, 73 M.J. at 15 ( courts of criminal appeals have "broad
discretion" in deciding to reassess a sentence to cure error as well as in arriving at
the reassessed sentence). We exercised this authority in our memorandum opinion
when we stated "in reassessing the sentence" that appellant's sentence "would have
been at least a bad-conduct discharge, confinement for twenty-four months,
forfeiture of all pay and allowances, and reduction to the grade of E-1." Solomon,
2019 CCA LEXIS 149, at *37 n. 23.
We have again closely reviewed appellant's record of trial and are satisfied
that the sentence adjudged for the offenses we affirm would have been at least a bad-
conduct discharge, confinement for twenty-four months, forfeiture of all pay and
allowances, and reduction to the grade of E-1. See Winckelmann, 73 M.J. at 15-16;
Sales, 22 M.J. at 308. This reassessment is both appropriate and purges the record
as it stands of error. See UCMJ, art. 63
CONCLUSION
Specification 2 of Charge III is DISMISSED. We reassess the sentence and
affirm no more than a bad-conduct discharge, confinement for twenty-four months,
forfeiture of all pay and allowances, and reduction to the grade of E-1. As to any
sentence to confinement, appellant will be credited with the 243 days of pretrial
confinement credit originally granted at trial and with an additional 86 days of
confinement credit for the government's noncompliance with R.C.M. 305.
Senior Judge BURTON and Judge RODRIGUEZ concur.
FOR THE COURT:
Chief Deputy Clerk of Court
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