United States v. Jennings ( 2014 )


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  •                 UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
    UNITED STATES
    v.
    Staff Sergeant LASHAWN M. JENNINGS
    United States Air Force
    ACM 38355
    06 November 2014
    Sentence adjudged 6 March 2013 by GCM convened at Scott Air Force
    Base, Illinois. Military Judge: Lynn Schmidt1 (sitting alone).
    Approved Sentence: Confinement for 12 months and reduction to E-4.
    Appellate Counsel for the Appellant: Major Christopher D. James.
    Appellate Counsel for the United States: Lieutenant Colonel C. Taylor
    Smith; Captain Richard J. Schrider; and Gerald R. Bruce, Esquire.
    Before
    HECKER, WEBER, and KIEFER
    Appellate Military Judges
    OPINION OF THE COURT
    This opinion is subject to editorial correction before final release.
    KIEFER, Judge:
    A general court-martial composed of a military judge sitting alone convicted the
    appellant, contrary to her pleas, of a single specification of culpably negligent child
    endangerment resulting in harm, in violation of Article 134, UCMJ, 10 U.S.C. § 934.
    The military judge sentenced the appellant to confinement for 12 months and reduction to
    E-4. The convening authority approved the sentence as adjudged.
    The appellant challenges the severity of her sentence and claims ineffective
    assistance of trial defense counsel.2 We affirm.
    1
    Prior to this opinion, the military trial judge’s last name changed from Schmidt to Watkins.
    Background
    The appellant adopted a five-year-old child in 2005. Years later, she married
    Mr. James Jennings. In 2012, the child visited a school nurse complaining of a hurt arm.
    The nurse noticed significant bruising on the child’s arm and a bruise on his back.
    Eventually, the child disclosed that his stepfather, Mr. Jennings, had abused him by
    hitting him with his hand and a belt. A subsequent medical examination found several
    bruises on the child’s body.
    The child later described how Mr. Jennings regularly beat him, with the
    appellant’s knowledge. He also stated that shortly before his injuries were discovered,
    the appellant left him in the care of Mr. Jennings. On this occasion, Mr. Jennings
    punished the child for eating cookies by forcing him to eat the whole package of cookies,
    including crumbs that had fallen on the floor. Mr. Jennings also forced the child to eat
    other items on the floor, including two screws. A subsequent x-ray confirmed the child
    had ingested two screws.
    The appellant was convicted of endangering her child in a culpably negligent
    manner by leaving the child with a caregiver whom she knew had caused bodily harm to
    the child in the past.3
    Sentence Severity
    In this case, the appellant argues that her sentence of confinement for 12 months
    and reduction to E-4 was too severe based on the offense for which she was convicted.
    Additionally, she maintains that her sentence was unduly harsh as compared to the
    sentence her husband received in a civilian criminal proceeding for allegedly related
    conduct.
    This court “may affirm only such findings of guilty and the sentence or such part
    or amount of the sentence, as [we find] correct in law and fact and determine[], on the
    basis of the entire record, should be approved.”                 Article 66(c), UCMJ,
    10 U.S.C. § 866(c). We review sentence appropriateness de novo, employing
    “a sweeping congressional mandate to ensure a fair and just punishment for every
    accused.” United States v. Baier, 
    60 M.J. 382
    , 384 (C.A.A.F. 2005) (quoting
    United States v. Bauerbach, 
    55 M.J. 501
    , 504 (Army Ct. Crim. App. 2001)) (internal
    quotation marks omitted). “We assess sentence appropriateness by considering the
    particular appellant, the nature and seriousness of the offense, the appellant’s record of
    2
    The appellant raises the ineffective assistance of counsel issue pursuant to United States v. Grostefon, 
    12 M.J. 431
    (C.M.A. 1982).
    3
    The military judge acquitted the appellant of two specifications of assault consummated by a battery and
    two additional specifications of child endangerment by design.
    2                                              ACM 38355
    service, and all matters contained in the record of trial.” United States v. Anderson,
    
    67 M.J. 703
    , 705 (A.F. Ct. Crim. App. 2009) (citing United States v. Snelling,
    
    14 M.J. 267
    , 268 (C.M.A. 1982)). Although we are accorded great discretion in
    determining whether a particular sentence is appropriate, we are not authorized to engage
    in exercises of clemency. United States v. Nerad, 
    69 M.J. 138
    , 146 (C.A.A.F. 2010).
    Additionally, “[t]he Courts of Criminal Appeals are required to engage in sentence
    comparison only ‘in those rare instances in which sentence appropriateness can be fairly
    determined only by reference to disparate sentences adjudged in closely related cases.’”
    United States v. Sothen, 
    54 M.J. 294
    , 296 (C.A.A.F. 2001) (quoting United States v.
    Ballard, 
    20 M.J. 282
    , 283 (C.M.A. 1985)). Sentence comparison is not required unless
    this court finds that any cited cases are “closely related” to the appellant’s case and the
    sentences are “highly disparate.” United States v. Lacy, 
    50 M.J. 286
    , 288 (C.A.A.F.
    1999). Closely related cases include those which pertain to “coactors involved in a
    common crime, servicemembers involved in a common or parallel scheme, or some other
    direct nexus between the servicemembers whose sentences are sought to be compared.”
    
    Id. The “appellant
    bears the burden of demonstrating that any cited cases are ‘closely
    related’ to his or her case and that the sentences are ‘highly disparate.’ If the appellant
    meets that burden . . . then the Government must show that there is a rational basis for the
    disparity.” 
    Id. We decline
    the appellant’s invitation to engage in sentence comparison. While the
    two cases may appear factually “related,” we find they are not “closely related” as
    defined by our case law. Even if we were to find the appellant’s case is “closely related”
    to her husband’s civilian criminal case, the appellant would still need to demonstrate that
    her sentence was “highly disparate” from her husband’s sentence before we would
    consider granting relief on a sentence comparison basis.
    Our assessment of whether a sentence is highly disparate may consider both the
    elements of the sentences to be compared as well as the punitive exposure each person
    faced. The appellant argues that her husband received only “weekend confinement,
    probation and counseling.” There is no evidence in the record to support this claim.
    Even if we accepted it at face value, however, this statement still fails to address what
    charge(s) Mr. Jennings was convicted of, the maximum sentence authorized, the facts and
    evidence presented, and whether any plea bargain was involved in his case. Accordingly,
    we cannot say that the appellant’s sentence is “highly disparate” from her husband’s
    sentence, given the different jurisdiction and unknown circumstances of his case.
    Accordingly, because the appellant’s case and that of her husband are not “closely
    related” and because we do not find the sentences to be “highly disparate” on the facts
    presented, we are not required to conduct a sentence comparison in this case.
    As part of our authority to review the appropriateness of a sentence, however, we
    also consider the appellant’s sentence in its own right. The appellant was convicted of
    3                                    ACM 38355
    endangering her child in a culpably negligent manner by leaving the child with a
    caregiver whom she knew to have been abusive in the past. Additionally, the child
    sustained harm through the appellant’s culpably negligent act. The appellant faced a
    maximum sentence of a bad-conduct discharge, confinement for 2 years, reduction to
    E-1, and total forfeiture of all pay and allowances, and was sentenced to 12 months
    confinement and reduction to E-4. The appellant’s argument that “50% of the maximum
    confinement” is too severe fails to consider the entire range of punishment at issue.
    Notably, the appellant did not receive a bad-conduct discharge, which would have been a
    severe punishment with a lasting impact, especially for the appellant who had over
    18 years of service and was approaching retirement eligible status. Furthermore, she did
    not receive any adjudged forfeitures and was only reduced to E-4.
    Evaluating the severity of the sentence, we find that reduction to E-4 and
    confinement for 12 months is not inappropriate based on the facts and circumstances of
    this case and all matters in the record of trial.
    Ineffective Assistance of Counsel
    Appellant also argues that her trial defense counsel was ineffective for failing to
    submit evidence that the child previously made an unsubstantiated allegation of abuse
    (against different individuals) and failing to cross-examine the child about being a
    “thief.”
    When reviewing claims of ineffective assistance of counsel, we follow the
    two-part test outlined by the United States Supreme Court in Strickland v. Washington,
    
    466 U.S. 668
    , 687 (1984). See United States v. Tippit, 
    65 M.J. 69
    , 76 (C.A.A.F. 2007).
    Our superior court has applied this standard to military courts-martial, noting that “[i]n
    order to prevail on a claim of ineffective assistance of counsel, an appellant must
    demonstrate both (1) that his counsel’s performance was deficient, and (2) that this
    deficiency resulted in prejudice.” United States v. Green, 
    68 M.J. 360
    , 361
    (C.A.A.F. 2010) (citing 
    Strickland, 466 U.S. at 687
    ; United States v. Mazza,
    
    67 M.J. 470
    , 474 (C.A.A.F. 2009)).
    “[T]he defense bears the burden of establishing the truth of the factual allegations
    that would provide the basis for finding deficient performance.” 
    Tippit, 65 M.J. at 76
    .
    When there is a factual dispute, appellate courts determine whether further fact-finding is
    required consistent with United States v. Ginn, 
    47 M.J. 236
    , 243 (C.A.A.F. 1997). If,
    however, the facts alleged by the defense would not result in relief under Strickland, the
    court may address the claim without the necessity of resolving the factual dispute.
    See 
    Ginn, 47 M.J. at 248
    . Such is the case here.
    Trial defense counsel acknowledged in a post-trial affidavit that he was aware of a
    prior abuse allegation made by the child against several members of the appellant’s
    4                                   ACM 38355
    family while they were caring for the child in Florida at the appellant’s request. He was
    also aware the child had been arrested at Scott Air Force Base (AFB), Illinois, for a theft
    issue. Notwithstanding this, trial defense counsel elected to not question the child or any
    other witness about either the prior abuse allegation or the theft issue. His basis for
    declining these lines of inquiry was that they did not fit with his case theory of casting
    blame on the appellant’s husband, and he also wanted to avoid alienating the fact-finder
    and creating added sympathy for the child. These are typical tactical decisions normally
    entrusted to a trial defense counsel. United States v. Perez, 
    64 M.J. 239
    , 243 (C.A.A.F.
    2006) (holding as a general matter, appellate courts will not second guess the strategic or
    tactical decisions made at trial by defense counsel). Upon review of the record, we find
    these decisions were reasonable based on the facts of this case. Consequently, we do not
    find trial defense counsel’s performance to be deficient.
    Additionally, even if there was some deficiency in trial defense counsel’s tactical
    decisions, there was no prejudice to the appellant. To establish prejudice, the appellant
    must show “that there is a reasonable probability that, but for counsel’s [deficient
    performance], the result of the proceedings would have been different.” 
    Strickland, 466 U.S. at 694
    . First, the evidence trial defense counsel allegedly failed to use at trial
    falls short of the appellant’s representations or would not have been beneficial to the
    defense case. While the prior abuse allegation was not substantiated, the findings did not
    indicate that the child lied or was untrustworthy and, as trial defense counsel noted, the
    report about this allegation indicated the child had been left with family members who
    had a “pattern of reports” filed against them at the civilian family services agency.
    Regarding the child’s arrest at Scott AFB, there is some question whether this would
    have even been admissible in this prosecution for assault and child endangerment. A
    failed attempt to characterize the child as a delinquent may have also had negative
    ramifications for the appellant in sentencing.
    In this case, the appellant was acquitted of four of five specifications.
    Additionally, she did not receive a punitive discharge. We agree with trial defense
    counsel that the physical evidence of abuse was overwhelming and attacking the child
    through use of a prior allegation of abuse and a possible theft was unlikely to result in a
    better outcome. Further, a failed effort to attack the child in this manner could have
    resulted in convictions on additional specifications or an increased sentence.
    Accordingly, applying the Strickland standard, trial defense counsel’s actions were not
    deficient, and there was no prejudice to the appellant.
    Conclusion
    The approved findings and the sentence are correct in law and fact, and no error
    materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
    and 66(c), 10 U.S.C. §§ 859(a), 866(c).
    5                                   ACM 38355
    Accordingly, the approved findings and the sentence are AFFIRMED.
    FOR THE COURT
    STEVEN LUCAS
    Clerk of the Court
    6                           ACM 38355
    

Document Info

Docket Number: ACM 38355

Filed Date: 11/6/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021