United States v. Datavs , 70 M.J. 595 ( 2011 )

OPINION OF THE COURT

ORR, Senior Judge,

delivered the opinion of the Court, in which BRAND, Chief Judge, joined:

Contrary to his pleas, a general court-martial composed of officer and enlisted members convicted the appellant of one specification of making a false official statement, one specification of forcible anal sodomy and one specification of forcible oral sodomy, in violation of Articles 107 and 125, UCMJ, 10 U.S.C. §§ 907, 925. The adjudged sentence consisted of a dishonorable discharge, forfeiture of all pay and allowances and reduction to the grade of E-l. The convening authority approved the sentence as adjudged. The appellant raises four issues for our consideration: 1) whether his trial defense counsel were ineffective; 2) whether the military judge abused his discretion by not permitting trial defense counsel to argue the mitigation of sex offender registration through reasonable inference and common knowledge; 3) whether the convening authority violated Rule for Courts-Martial (R.C.M.) 1107(d)(2) by approving total forfeitures of pay even though the appellant received no confinement; and 4) whether the appellant’s sentence to a dishonorable discharge was too severe. We heard oral argument on this case in the courtroom of the Supreme Court of Nevada in Las Vegas, Nevada, as part of our Outreach Program. After considering the record of trial, the briefs and arguments of counsel, with the exception of issue three, we find no error that materially prejudices a substantial right of the appellant and affirm. We take direct corrective action for the improper convening authority action in our concluding paragraph.

Background

The appellant was a Special Operations Equipment Maintenance member stationed at Cannon Air Force Base (AFB), New Mexico. Approximately a month and a half prior to the events leading to his court-martial, the appellant met SF, a woman who lived approximately 30 minutes from Cannon AFB. They saw each other on a weekly basis at softball games and the relationship between the appellant and SF progressed to a consensual sexual relationship. Late in the evening of the 14th of June 2008, the appellant asked SF to come to his apartment to discuss his upcoming deployment to Turkey. SF agreed and arrived at approximately 0200 the following day. SF knocked on the door and woke the appellant’s roommates, a married Airman and his wife who were renting out an extra room to the appellant. SF told them she was there to see the appellant and they let her in. SF then went to the appellant’s room where she found the appellant asleep so she woke him. They began kissing and quickly progressed to having consensual vaginal intercourse.

SF testified at trial that, unlike their first sexual encounter, the appellant became demanding. He asked her to perform oral sex to which she told the appellant “no,” but he pulled her head down and forced her to take his penis into her mouth. They then engaged in vaginal intercourse again, and although SF said she was now afraid, she continued because she did not want to make the appellant angry by refusing. SF testified the appellant put her into uncomfortable positions during intercourse, which caused her pain, but again, she did not complain to the appellant. At one point, the appellant slapped SF in the back and told her she “wasn’t in the right position.” SF then testified the appellant told her he wanted to have anal sex. She told the appellant “no,” but according to SF, the appellant proceeded despite her refusal. SF said the anal sex hurt so she shifted her weight and position, causing the appellant to stop. They then engaged in vaginal intercourse again, followed by SF performing oral sex on the appellant a second time.¹ Afterwards, SF and the appellant talked and she left the house.

SF went home and then went to church later in the day. That night, she told her mother “I may have been raped.” Her mother advised her to go to the hospital for a rape examination. SF agreed and was seen by TB, a registered Sexual Assault Nurse Examiner (SANE), and a family acquaintance. SF told TB that she had been sexually assaulted, to include being anally penetrated against her will. TB took several pictures and wrote a report outlining her findings. SF filed a complaint with Detective RP of the Clovis Police Department in New Mexico. On 23 June 2008, she told the detective that, although they started out having consensual vaginal sex, the appellant forced her to engage in oral and anal sex. On 28 July 2008, Detective RP and Special Agent PC of the Air Force Office of Special Investigations, interviewed the appellant in response to SF’s allegations. After being properly advised of his rights, the appellant told them the oral sex with SF was consensual. Initially, the appellant told the investigators that he had never had anal sex. When pressed, he said it may have “slipped in when he was from behind” but he pulled out and because it happened so quickly he did not consider it anal sex. Finally, he gave a written statement saying, “I asked her if she wanted to try anal. I had never tried it before and she said she was willing to try it.”

Ineffective Assistance of Counsel — Part A

Prior to trial, defense counsel² asked the convening authority to appoint a SANE to the defense team to assist during case preparation and to possibly testify in the defense’s case-in-chief. The convening authority denied the request. Trial defense counsel then submitted a motion to compel production of a SANE expert with the military judge, saying:

An expert consultant SANE is a necessity in Defense preparation of this case. No member of the Defense team has received formal or informal training regarding forensic evidence collection from a complainant after an allegation of sexual assault. Defense consultant will be utilized to confirm the accuracy of the findings of Government’s SANE .... the consultant may assist as a witness to explain said favorable evidence to court.... There is a reasonable probability that not ordering the appointment of such an expert would result in a fundamentally unfair trial.

Prior to the start of the court-martial, and before the judge could rule on the motion, trial defense counsel interviewed TB for several hours. Based on this conversation, counsel determined TB’s testimony would not harm the defense’s case if she only discussed the anal injuries she observed rather than the vaginal trauma she noticed. Defense counsel then entered into an agreement with the prosecution, electing to withdraw the motion to compel on the condition that the government’s SANE expert, TB, would not testify about the vaginal injuries she observed during the victim’s sexual assault examination, and would limit her testimony to portions of the examination related to the injuries to the anus only.

At trial, TB’s testimony was apparently not what defense counsel expected. Rather than the benign comments they thought she would make regarding the anal injuries, she testified the victim suffered extensive blunt force trauma to the area and opined the injuries were consistent with “forced anal penetration by a man’s penis.” TB also testified that you would not usually see any lacerations from consensual sodomy “because that particular sexual act is for pleasure, not for pain and when it’s done in a controlled environment with ... lubrication, [and a] willing party ... it doesn’t usually have injury with it.” During TB’s direct examination, and then again on cross-examination, TB acknowledged the injuries she observed could have been caused by consensual anal sodomy. Later she testified it was possible, but unlikely that an unlubrieated penis would just slip inside of an anus.

The defense’s case-in-chief consisted solely of the roommate’s testimony that he did not hear SF or the appellant after SF entered the apartment. The appellant did not testify and trial defense counsel did not renew their request for a sexual assault expert.

On appeal, the appellant argues his trial defense counsel were ineffective for a litany of reasons, chief among them, them failure to obtain an expert consultant in the field of sexual assault examinations.

Law

Service members have a fundamental right to the effective assistance of counsel at trial by courts-martial. United States v. Davis, 60 M.J. 469, 473 (C.A.A.F.2005) (citing United States v. Knight, 53 M.J. 340, 342 (C.A.A.F.2000)). We review claims of ineffective assistance of counsel de novo, United States v. Wiley, 47 M.J. 158, 159 (C.A.A.F.1997), under the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also 2 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 12.09 (2d ed. 1992). To prevail on claims of ineffective assistance of counsel, the appellant must show: 1) his counsel’s performance was so deficient that he was not functioning as counsel within the meaning of the Sixth Amendment³; and 2) his counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. We start with the proposition that defense counsel are presumed to be competent. United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F.2001). The appellant bears the heavy burden of establishing that his trial defense counsel was ineffective. United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F.2004). Our superior court has established a three-part test to determine whether the presumption of competence has been overcome:

1. Are the appellant’s allegations true; if so, “is there a reasonable explanation for counsel’s actions”?

2. If the allegations are true, did defense counsel’s level of advocacy “fall [] measurably below the performance ... [ordinarily expected] of fallible lawyers”?

3. If defense counsel was ineffective, is there “a reasonable probability that, absent the errors,” there would have been a different result?

United States v. Polk, 32 M.J. 150, 153 (C.M.A.1991) (citations omitted).

Discussion

The appellant contends his attorneys were unable to prepare an effective defense or to successfully challenge the government expert’s conclusions because they did not have the medical knowledge sufficient to understand the subject material. Additionally, the appellant maintains his trial defense counsel did not have a viable tactical reason for withdrawing the motion to compel an expert. The appellant points out the rape allegation had been dismissed and the victim admitted to having consensual sex, making the evidence about vaginal injuries “benign, or at least superfluous.” The appellant argues, “Defense eounsel[s’] explanation for withdrawing their motion does not explain how the defense felt competent to proceed in a forcible sodomy case when they remained ignorant regarding SANE examinations, especially the medical research related to anal sex.”

The fact that neither counsel possessed specialized knowledge concerning sexual assault examinations is not by itself sufficient to conclude defense counsel were ineffective. United States v. Hammer, 60 M.J. 810, 822 (A.F.Ct.Crim.App.2004) (“[T]here is no rule of law that requires a defense counsel to seek the assistance of an expert simply because the government is presenting expert testimony in the case.”). It is only when counsel show they are unable to gather and present evidence without expert assistance that there is a due process entitlement to the appointment of an expert. United States v. Short, 50 M.J. 370, 373 (C.A.A.F.1999). The relevant question is whether defense counsels’ deliberate and voluntary decision to withdraw the motion to compel was based on sound tactical or strategic reasoning. We believe it was.

According to the trial defense counsels’ post-trial affidavits, their rationale for withdrawing the request for a SANE expert was two-fold:

First, they believed TB’s testimony would not be harmful to the defense if she only testified about the anal injuries she observed. During pretrial interviews, TB told defense counsel that “the trauma she documented in [SF’s] vagina was some of the worst she had ever seen,” and would have caused SF a great deal of pain during intercourse. “In contrast, [TB] did not speak in such terms regarding her anal findings. She indicated that the trauma to [SF’s] anus was considerable, but she agreed the injuries could have been caused by a first-time experience with anal sex, a single insertion of the penis, or even a partial insertion of the penis.” Consequently, “[a]s a result of our interview, it was clear that if the government intended to get into the vaginal examination, we would need a SANE to keep [TB] from injecting her own assumptions into her testimony; however, there were no such similar indications regarding the anal examination.” The defense was also concerned about potential spillover that could result if TB discussed the vaginal injuries even though the victim admitted the vaginal sex was consensual.

Second, they did not want to delay the case. In her affidavit, the area defense counsel (ADC) stated she had spoken with two witnesses, SF’s ex-boyfriend and the appellant’s ex-girlfriend, both of whom she opined could provide damaging testimony about the appellant. Because the government had apparently not spoken with either individual, the defense wanted to get to trial before they could be interviewed by the prosecution. The appellant apparently wanted to proceed to trial as soon as possible because he had already been waiting for over a year for resolution of his case. According to the senior defense counsel (SDC), the SANE expert they wanted would not be available on the agreed upon start date, necessitating a delay.⁴

Appellate courts give great deference to trial defense counsel’s judgments, and “[a]s a general matter, [the court] will not second-guess the strategic or tactical decisions made at trial by defense counsel.” United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F.2009) (quoting Anderson, 55 M.J. at 202). See also United States v. Morgan, 37 M.J. 407, 409 (C.M.A.1993). We find trial defense counsels’ decision to withdraw the request for expert assistance before the trial was made after careful determination that such a course of action was in the best interest of the appellant. Counsel had a reasonable basis to be concerned that TB’s testimony concerning SF’s vaginal injuries would spillover to the anal sodomy specification. SF had previously testified at the Article 32, UCMJ, 10 U.S.C. § 832, hearing that some of the instances of vaginal intercourse that occurred were in fact unwanted and caused her a great deal of pain. Defense counsel believed that SF’s accounting of the vaginal pain was supported by TB’s findings. As the SDC explained in his post-trial affidavit:

[I]f the members were to see the vaginal portion of the SANE report, they might surmise that the tears, lacerations and abrasions noted by [TB] corroborated [SF’s] unwilling participation in the subsequent vaginal intercourse. If the members were to draw that conclusion, then it was logical to believe they would be more likely to view the acts of oral and anal sodomy as noneonsensual as well. By securing an agreement from the government to keep the SANE report out of evidence, we effectively eliminated this danger to the defense case.

The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time decisions are made, not on how they now appear in hindsight. United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F.1997) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). The appellant’s counsel made the decision to withdraw the request for an expert in order to limit TB’s testimony about the vaginal injuries only after extensively interviewing TB. Counsels’ decision was justified by the facts of the case and the information derived from TB. Determining whether to make such a tradeoff is just one of the many tactical decisions that defense counsel must make while formulating a trial strategy, and it is precisely the reason appellate courts are proscribed from second guessing counsel. United States v. Grigoruk, 52 M.J. 312, 315 (C.A.A.F.2000) (citing Morgan, 37 M.J. at 410).

While we find the defense decision to withdraw the request for an expert in exchange for limiting TB’s testimony was within the bounds of reasonable performance expected from competent counsel, we conclude that defense counsels’ failure to seek production of a SANE expert after TB testified was not. As previously mentioned, counsels’ initial decision not to seek expert assistance was a reasonable trial strategy based on pretrial discussions with TB. However, once trial defense counsel realized TB’s testimony changed from the expected benign description of the anal injuries to providing her opinion that the trauma was extremely significant and resulted from forcible penetration, accompanied by a substantial discussion of the medical findings she made during her examination, trial defense counsel should have realized they were unprepared to cross-examine her. Because of the importance of TB’s testimony and counsels’ unfamiliarity with the subject matter, the prudent course of action would have been to ask the military judge for a delay to request expert assistance. We find counsels’ failure to obtain expert assistance at this point of the trial fell measurably below the performance ordinarily expected of fallible lawyers. See Polk, 32 M.J. at 153. By defense counsels’ own admission, they did not have the training or expertise to fully understand the medical evidence presented by TB. Nevertheless, defense counsel elected to conduct cross-examination without the benefit of expert assistance. Despite their lack of expertise, however, they were successful in getting TB to admit that SF’s anal injuries could have been the result of consensual sex.

Our determination that counsels’ performance was deficient is not based on the advantage of hindsight. Following trial, at the urging of his trial defense counsel, the appellant hired BO, a registered SANE nurse with 17 years of experience, to review the record of trial and provide a second opinion. BO reviewed the testimony of TB from the Article 32, UCMJ, hearing and the court-martial, as well as the exam photographs. BO disagreed with many of TB’s conclusions. She criticized TB’s experience, methodology, and the procedures she employed to make her findings. BO’s opinion illustrates that a SANE expert’s assistance would have raised the level of trial defense counsels’ performance in this case; however, that does not end our inquiry.

Having concluded the appellant’s defense counsels’ performance was deficient, we must next determine whether there is a “reasonable probability that, absent the errors,” there would have been a different result. Polk, 32 M.J. at 153. Based on the entire record of trial, and the matters submitted by the appellant, we do not find there would have been a different result.

The crux of the appellant’s argument is that his trial defense counsels’ decision to proceed without expert assistance led to his conviction. We disagree. The outcome in this case was based primarily upon the credibility of SF and Detective RP. Trial defense counsel pointed out the many inconsistencies in SF’s testimony during cross-examination and closing argument. The panel members had an opportunity to hear SF’s and Detective RP’s testimony and to observe their demeanor. After hearing their in-court testimony and the arguments of counsel, the members concluded the appellant made a false official statement when he claimed, “I’ve never, ever had anal sex,” and “it may have slipped if I was going from behind or something.” They also found the appellant forced SF to perform oral sex on him without her consent in the first instance. Additionally, they found the appellant guilty of committing forcible anal sodomy.

The trial defense counsels’ decision not to renew their request for expert assistance is primarily relevant to the specification alleging forcible anal sodomy. After comparing SF’s testimony to the appellant’s 15 August 2008 written statement, both indicate that the two of them engaged in anal sodomy. The critical difference in their versions of the event is whether the anal sodomy occurred by force and without SF’s consent. In this case, the government called TB to assist the court members in deciding these two critical differences. The appellant asserts that the members decided the issue of consent adversely to him because his counsel did not renew their request for expert assistance and as a result, TB’s testimony essentially went unchallenged. He argues that a defense SANE consultant would have enabled the defense to undermine the testimony of the government expert. We disagree.

Without question, the report submitted by BO is highly critical of TB’s report, her testimony, and the defense counsel’s performance during cross-examination. However, the two expert opinions are fairly consistent on three key points: first, that SF sustained some injuries to her anus; second, that some force is necessary to perform anal sex; and third, that SF’s injuries could have occurred from either consensual or non-eonsensual anal sex.

TB’s SANE report and testimony corroborate SF’s and the appellant’s statements that they engaged in anal sex on 15 June 2008. TB testified her examination revealed SF sustained injuries from trauma that caused her anus to be “open” with “quite a bit of dilatation.” Even though BO disagreed with TB’s description of the nature and extent of SF’s injuries, she acknowledged that the laceration on SF’s anus was actively oozing. Both experts agree that assuming SF and the appellant engaged in anal sex, some amount of force occurred. BO stated that “it would take some force to have anal sex, whether consensual or non-consensual. Force is going to be needed to get a penis in an anus in any situation.” As previously stated, TB testified that SF’s injuries were most likely caused by “forced anal penetration by a man’s penis,” but offered several medical theories explaining how they could have occurred during consensual anal sex. Neither expert gave a definitive opinion on the issue of consent. In fact, they chose not to do so. Although TB opined that “[t]wo people who are experienced with anal sex normally don’t incur injury,” BO asserts the injuries could have occurred during consensual or nonconsensual sex, even between people experienced with anal sex “due to the sensitivity of the anus and the fact that it is not meant to be entered.” Despite her criticism of TB’s testimony and lack of experience, BO concluded that “all of the descriptions [TB] has described [ie. lacerations, swelling of the tissue] could occur with consensual or nonconsensual sex.” Given the fact that both experts agree that force was necessary to engage in anal sex and SF’s injuries could have resulted from consensual or nonconsensual sex, we are not convinced that there is “a reasonable probability” that, even if she assisted the defense counsel during the trial, there would have been a different result. See Polk, 32 M.J. at 153. As such, we find the appellant did not suffer any prejudice as a result of trial defenses’ deficient performance in failing to seek a SANE expert after TB testified.

Ineffective Assistance of Counsel — Part B

Separate from the failure to obtain a SANE expert, the appellant argues his counsel made several other mistakes that amounted to ineffective assistance. He contends trial defense counsel failed to challenge two panel members who were also victim advocates, one of whom had been an acting Sexual Assault Response Coordinator (SARC) for a short period; counsel failed to seek admission of telephone records for the purpose of impeaching SF; counsel failed to effectively argue a mistake of fact defense during closing argument; and counsel failed to introduce evidence during sentencing proceedings that the appellant would be required to register as a sex offender. Having reviewed the record, it is clear the appellant’s counsel acted well within the professional norms expected of able defense counsel with regard to the matters raised by the appellant. Accordingly, we need only briefly comment on the appellant’s concerns.

During voir dire, two panel members, Captain (Capt) EW and Master Sergeant (MSgt) SG, each stated they attended sexual assault training and had been appointed as victim advocates, but neither had actually assisted any victims to that point.⁵ Nonetheless, the appellant asserts “[v]ictim advocates volunteer for their positions because they sympathize with those individuals that claim to have been sexually assaulted.” Therefore, “[a]ny reasonable defense attorney would challenge these types of panel members.” We disagree. In her post-trial affidavit, the ADC explained how she and her co-counsel discussed with the appellant whether to seek removal of the two members, but decided that keeping both on the panel would be advantageous. Trial defense counsel were both of the opinion that the two members kept a “balance among the sexes on the panel” and based on their answers during voir dire, they felt the two members, both women, “would take offense to a female displaying similar characteristics [ie. strong and athletic] suddenly claiming she was to[o] afraid to defend herself or fight back.” Defense counsels’ strategy was reasonable and not ineffective. Furthermore, in response to the military judge’s query, the appellant expressly stated he waived any challenge for cause against Capt EW and MSgt SG and specifically confirmed he had discussed the issue with counsel. We will not permit the appellant to benefit from invited error. United States v. Catt, 1 M.J. 41, 47 (C.M.A.1975) (citing United States v. Airhart, 48 C.M.R. 685 (1974) (‘Where the defense, armed with full knowledge of its right to make objection or challenge, deliberately and consciously declines to do so and expressly waives that right, we have consistently declined to ... permit the defense to induce the error and then take advantage of it on appeal.”)).

The appellant next argues his trial defense counsel were unable to lay a proper foundation for telephone records that would have apparently shown SF called the appellant several times after the incident to counter her testimony that she did not call the appellant. In the ADC’s post-trial affidavit, she stated she asked SF during cross-examination about the discrepancy between her testimony and the telephone logs in order to impeach her testimony but she never intended to have the documents admitted because doing so would have called attention to the location of SF’s former boyfriend, a detrimental witness to the defense’s case. Again, the defense counsel’s rationale was reasonable and did not amount to ineffective assistance.

Additionally, the appellant contends defense counsel failed to argue mistake of fact as to consent during her closing argument. The appellant argues his counsel should have stressed to the members “once she pushed him off, he did not attempt to pursue anal sex again.” As a consequence, the appellant contends “defense counsel failed to make one of the most basic and primary arguments that lead to an acquittal in this type of sexual assault case.” We find the appellant’s argument is without merit. In her summation, defense counsel thoroughly discussed the evidence and put forward the argument that SF’s actions and failure to voice her disagreement over what was taking place would have led to the honest and reasonable belief that she had consented to the oral and anal sex. Furthermore, the military judged properly instructed the members on the possibility of a mistake of fact defense. Court members are presumed to follow the military judge’s instructions. United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F.2000).

Next, the appellant argues his defense counsel failed to introduce evidence during the sentencing proceedings that he would be required to register as a sex offender. The ADC logically explained in her affidavit that she did not want to concentrate on this issue because, “Restrictions for sex offenders are favorable to most Americans as they are viewed as a means of protecting society. Very little if any sympathy is drawn from a sex offender having a specific restriction.” Instead, counsel chose to focus on the appellant’s low risk for recidivism and used a defense psychologist to present the information to the members. Additionally, the issue was not raised through the appellant’s un-sworn testimony because he was very upset with the members’ findings and refused to make an oral statement and could only be convinced to submit a previously written statement that did not discuss sex offender registry impact. Given the fact that the appellant’s sentence did not include confinement, it is quite apparent trial defense counsel argued the points in mitigation very well. Her rationale for not wanting to highlight the sex offender registry was reasonable.

Sexual Offender Registration

In his second issue, the appellant claims the military judge abused his discretion by not permitting the trial defense counsel to discuss the impact of sex offender registry during sentencing. During presen-tencing, trial counsel made a motion in li-mine, asking the judge to prohibit trial defense counsel from discussing the effects of sex offender registration. The SDC argued that all states have some form of sex offender registry and such an outcome was a reasonable inference from the appellant’s conviction. The military judge ruled sex offender registration was a collateral matter and went to facts not in evidence before the court.

“We review a military judge’s decision whether to instruct on a specific collateral consequence of a sentence for abuse of discretion.” United States v. Boyd, 55 M.J. 217, 220 (C.A.A.F.2001) (citing United States v. Perry, 48 M.J. 197, 199 (C.A.A.F.1998)). The abuse of discretion standard is strict and involves “more than a mere difference of opinion.” United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F.2000). The challenged action “must be ‘arbitrary, fanciful, clearly unreasonable’ or ‘clearly erroneous.’” Id. (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F.1997); United States v. Travers, 25 M.J. 61, 62 (C.M.A.1987)). As a general proposition, collateral consequences of a particular sentence are not relevant to a court-martial proceeding. United States v. Quesinberry, 31 C.M.R. 195, 198 (C.M.A.1962) (“In sum, the rule which is applicable here is simply that precept which commands courts-martial to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration.”).

While our superior court has to some degree relaxed the general rule to permit discussion of collateral impact in cases involving retirement benefits, to date the court has not made such a policy change with respect to sex offender registration, and we decline to do so today. See Boyd, 55 M.J. at 221. Retirement benefits are defined and quantifiable and can be explained to the sentencing authority with specific accuracy. The requirements for registering as a sex offender on the other hand are not nearly as precise. Each state has different rules as to when registration is required and how compliance is monitored and measured. Given these differences, the military judge did not abuse his discretion by finding there was insufficient information for the members to make an informed decision on the issue. While the effects of registration may be difficult for the appellant, the military judge did not abuse his discretion by precluding trial defense counsel from discussing the matter during argument.

Improper Convening Authority Action

The appellant was sentenced to a dishonorable discharge, forfeiture of all pay and allowances and reduction to the grade of E-l. The convening authority approved the sentence as adjudged. The appellant asserts the convening authority’s action violated R.C.M. 1107(d)(2). Specifically, the Discussion to R.C.M. 1107(d)(2) states, “When an accused is not serving confinement, the accused should not be deprived of more than two-thirds pay for any month as a result of one or more sentences by court-martial and other stoppages or involuntary deductions, unless requested by the accused.” The government counsel concedes that by application of the Discussion in R.C.M. 1107(d)(2), and the holding in United States v. Warner, 25 M.J. 64 (C.M.A.1987), forfeiture should have been limited to two-thirds of the appellant’s pay. We agree. We find the approved sentence materially prejudiced the substantial rights of the appellant because it exceeds the maximum authorized. See Article 59(a), UCMJ, 10 U.S.C. § 859(a).

We now analyze the case to determine whether we can reassess the sentence. United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002). Before reassessing a sentence, this Court must be confident “that, absent any error, the sentence adjudged would have been of at least a certain severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A.1986). A “dramatic change in the ‘penalty landscape’ ” gravitates away from our ability to reassess a sentence. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F.2003). Ultimately, a sentence can be reassessed only if we “confidently can discern the extent of the error’s effect on the sentencing authority’s decision.” United States v. Reed, 33 M.J. 98, 99 (C.M.A.1991). In United States v. Harris, 53 M.J. 86, 88 (C.A.A.F.2000), our superior court decided that if the appellate court “cannot determine that the sentence would have been at least of a certain magnitude,” it must order a rehearing. See also United States v. Poole, 26 M.J. 272, 274 (C.M.A.1988).

Although the approved forfeitures exceed the maximum punishment authorized, we are confident the convening authority would have approved a punishment which includes a forfeiture of two-thirds of his pay per month from the time the sentence was adjudged until he took action on this case. Considering the evidence in the record, we find that a reassessed sentence of a dishonorable discharge, forfeiture of $933.00 pay per month for two months and reduction to the grade of E-l cures the error. We also find, after considering the appellant’s character, the nature and seriousness of the offense, and the entire record, that the reassessed sentence is appropriate.

Sentence Severity

Finally, the appellant argues a dishonorable discharge is too severe given the members sentenced him to no confinement. We review sentence appropriateness de novo. United States v. Baier, 60 M.J. 382, 383-84 (C.A.A.F.2005). We make such determinations in light of the character of the offender, the nature and seriousness of his offenses, and the entire record of trial. United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982). Additionally, while we have a great deal of discretion in determining whether a particular sentence is appropriate, we are not authorized to engage in exercises of clemency. United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F.1999); United States v. Healy, 26 M.J. 394, 395-96 (C.M.A.1988).

The appellant was convicted of orally and anally sodomizing a non-consenting victim, offenses considered amongst the most serious crimes recognized by society.⁶ We have given individualized consideration to this particular appellant, the nature and seriousness of the offenses, the appellant’s record of service, and all other matters contained in the record of trial. The approved sentence was clearly within the discretion of the convening authority and was appropriate in this case. Accordingly, we hold that the approved sentence is not inappropriately severe.

Appellate Delay

As this Court was finalizing its separate opinions in this case, the appellant filed a motion asserting that the delay in his case is unreasonable. We agree. The overall delay of more than 540 days between the time the case was docketed at the Air Force Court of Criminal Appeals and completion of review by this Court is facially unreasonable. Because the delay is facially unreasonable, we examine the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice. See United States v. Moreno, 63 M.J. 129, 135-36 (C.A.A.F.2006). When we assume error, but are able to directly conclude that any error was harmless beyond a reasonable doubt, we do not need to engage in a separate analysis of each factor. United States v. Allison, 63 M.J. 365, 370 (C.A.A.F.2006). This approach is appropriate in the appellant’s case. Having considered the totality of the circumstances and the entire record, we conclude that any denial of the appellant’s right to speedy post-trial review and appeal was harmless beyond a reasonable doubt.⁷

Conclusion

We affirm the findings and only so much of the sentence as provides for a dishonorable discharge, forfeiture of $933.00 of his pay for two months and reduction to E-l. The approved findings and the sentence, as modified, are correct in law and fact and no error prejudicial to the substantial rights of the appellant occurred. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.2000). Accordingly, the findings and sentence, as modified, are

AFFIRMED.

1 . SF testified the appellant forced her to perform oral sex on him a second time but the appellant was acquitted of this allegation.

2 . The appellant was represented by a senior defense counsel (SDC) and an area defense counsel (ADC).

3 . U.S. Const, amend. XI.

4 . At the same time the defense withdrew their motion to compel the sexual assault nurse examiner (SANE) expert, the military judge granted a two-month delay request from the government due to witness availability.

5 . Captain EW said she had filled in for the base Sexual Assault Response Coordinator (SARC) on one occasion, but she did not complete any victim advocate duties.

6 . The maximum sentence for forcible sodomy is confinement for life.

7 . We note this Court approved seven requests from the appellant for an enlargement of time in this case. Additionally, we approved the appellant's request for oral argument.