United States v. Desmond

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 39502 (f rev) ________________________ UNITED STATES Appellee v. Alexander J. DESMOND Technical Sergeant (E-6), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Upon Further Review Decided 31 August 2020 ________________________ Military Judge: Andrew Kalavanos.

Approved sentence: Dishonorable discharge, confinement for 15 years, and reduction to E-1. Sentence adjudged 2 April 2018 by GCM convened at Hurlburt Field, Florida.

For Appellant: Major Mark J. Schwartz, USAF; Major Dustin J. Weis- man, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mi- chael T. Bunnell, USAF; Major Peter Kellett, USAF; Mary Ellen Payne, Esquire.

Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ PER CURIAM: This case was submitted for our review with a single assignment of error by Appellant alleging the staff judge advocate (SJA) provided incorrect advice with respect to the power of the convening authority to act on the findings and United States v. Desmond, No. ACM 39502 (f rev)

sentence in his case. Appellant requested we remand the case to the convening authority for new post-trial processing. The Government did not oppose Appel- lant’s request, and on 5 August 2019, we set aside the convening authority’s action and returned the record of trial for new post-trial processing. Appellant’s case is now before us again for review on its merits without assignment of er- ror.

A military judge sitting as a general court-martial convicted Appellant, in accordance with his pleas pursuant to a pretrial agreement, of one specification of sodomy on a child under the age of 12; two specifications of aggravated sex- ual abuse of a child; one specification of attempted rape of a child; and one specification of rape of a child in violation of Articles 125, 120, 80, and 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 920, 880, 920b, respectively. All offenses but the Article 120b offense were committed prior to June 2012 but after 1 October 2007 and were charged under the versions of those articles then in effect. 1 The Article 120b offense was committed in 2016. 2 The military judge sentenced Appellant to a dishonorable discharge, confine- ment for 35 years, and a reduction to the grade of E-1. Pursuant to the terms of the pretrial agreement, the convening authority approved a sentence con- sisting of a dishonorable discharge, 15 years of confinement, and reduction to the grade of E-1.

Effective 24 June 2014, Congress significantly constricted convening au- thorities’ historically broad power to modify court-martial findings and sen- tences. 3 In so doing, Congress provided that in cases where an accused is con- victed of offenses which occurred both before and after 24 June 2014, convening authorities would have the power they had on the date of the earliest offense, except with respect to certain mandatory minimum sentences. 4 Appellant was convicted of offenses committed before and after 24 June 2014, but in the orig- inal post-trial processing of his case, the SJA erroneously advised the conven- ing authority he had only the post-24 June 2014 powers.

After new post-trial processing, the convening authority approved a sen- tence of a dishonorable discharge, 15 years of confinement, and reduction to

United States v. Desmond, No. ACM 39502 (f rev)

the grade of E-1. 5 We have reviewed the new SJA recommendation and find that it accurately states the law applicable to Appellant’s case.

The approved findings and sentence are correct in law and fact, and no er- ror materially prejudicial to Appellant’s substantial rights occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (Manual for Courts-Martial, United States (2016 ed.)). Accordingly, the approved findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court