United States v. Staff Sergeant BRANDON C. MORROW ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, LIND, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant BRANDON C. MORROW
United States Army, Appellant
ARMY 20111135
Headquarters, 82d Airborne Division
Reynold P. Masterton, Military Judge
Colonel Lorianne M. Campanella, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Steve T. Nam, JA (on brief).
27 February 2014
----------------------------------
SUMMARY DISPOSITION
----------------------------------
HAIGHT, Judge:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of failure to obey a lawful general regulation, maltreatment of
a subordinate (two specifications), and assault consummated by battery (two
specifications), in violation of Articles 92, 93, and 128, Uniform Code of Military
Justice, 10 U.S.C. §§ 892, 893, 928 [hereinafter UCMJ]. 1 The military judge
sentenced appellant to a bad-conduct discharge, confinement for two months,
forfeiture of $978.00 pay per month for two months, and reduction to the grade of
E-1. The convening authority approved the adjudged sentence. 2
1
The Article 128, UCMJ, offenses of which appellant was convicted were originally
charged and referred as Article 120, UCMJ, wrongful sexual contact offenses.
Pursuant to his pretrial agreement, appellant pleaded guilty to the lesser-included
offenses of assault consummated by battery.
2
The convening authority deferred automatic and adjudged forfeitures until action.
MORROW — ARMY 20111135
This case is before us for review pursuant to Article 66, U CMJ. Appellant
raises four assignments of error. One assignment of error warrants discussion and
relief, leaving another assignment of error moot. Yet another assignment of error
warrants brief discussion but no relief. The remaining assignment of error is
without merit.
DISCUSSION
Hazing Offenses
Appellant was a platoon sergeant. During his time in this position of
responsibility, he repeatedly assaulted and hazed his subordinates. For his
assaultive behavior of ripping off one particular Private E -2’s boxer shorts in front
of others during a field exercise at the Joint Readiness Training Center and striking
this same soldier on multiple occasions in the testicles, appellant pleaded guilty to ,
and was convicted of, two batteries. For additional conduct towards this victim of
kicking him in the stomach and choking him and for behavior towards another
subordinate of stapling that victim in the body, appellant pleaded guilty to and was
convicted of regulatory disobedience by “wrongfully hazing” those soldiers as well
as two specifications of maltreatment by subjecting those soldiers to “hazing
rituals.”
The providence inquiry clearly reveals the abusive activities that formed the
basis for the Article 92, UCMJ, charge were the same instances of misconduct for
which appellant was charged with maltreatment. While discussing the regulatory
violation, the military judge repeatedly mentioned that the underlying conduct had
already been fully inquired into when they had previously discussed the
maltreatment offenses. In short, appellant now stan ds convicted for the same
misconduct of failing to obey Army Regulation 600 -20’s proscription against
“hazing,” as well as two counts of maltreating subordinates by subjecting them to
“hazing rituals.” Army Reg. 600-20, Army Command Policy, para. 4-20 (Hazing)
(18 Mar. 2008) (RAR, 27 Apr. 2010)
Appellant, in one assignment of error, claims these specifications are either
multiplicious or that Article 93, UCMJ, preempts Article 92, UCMJ, under the facts
of this case. In another assignment of error, appellant contends the three
specifications are an unreasonable multiplication of charges. Either way, appellant
requests the finding of guilty to the Article 92 offense, the Specification of Charge I,
be set aside and that specification and charge be dismissed. The government
concedes the specifications are facially duplicative and Charge I and its
specification should be dismissed.
We agree with appellant that he suffered an unreasonable multiplication of
charges. The Article 92, UCMJ, charge sought to punish appellant for violating a
general regulation prohibiting the same conduct for which he was also convicted
2
MORROW — ARMY 20111135
under Article 93. “Congress never intended this multiplic ation of offenses.” United
States v. Curry, 28 M.J. 419, 424 (C.M.A 1989). Accordingly, we will dismiss the
regulatory disobedience offense as an unreasonable multiplication of charges. See
United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001).
Sentence Disparity
Appellant claims his punishment is disproportionately severe when compared
to those received by other noncommissioned officers who mistreated the same
victims. The government acknowledges these other cases are “closely related” and
that appellant’s sentence is the only one to include confinement or a punitive
discharge. See United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). However,
the government distinguishes appellant’s case and points out appellant was the
victims’ platoon sergeant whereas the other perpetrators held lesser positions of
responsibility. We find this difference to be a “rational basis” f or any sentence
disparity. See United States v. Durant, 55 M.J. 258 (C.A.A.F. 2001). Appellant’s
repeated crimes were witnessed by subordin ate soldiers and were even committed,
on occasion, while in unit formation, a formation for which appellant was solely
responsible at the time.
CONCLUSION
On consideration of the entire record and the assigned error s, the findings of
guilty of the Specification of Charge I and Charge I are set aside and that
specification and charge are dismissed. We AFFIRM the remaining findings of
Guilty.
We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Second, appellant pleaded guilty in a judge -alone, special court-martial.
Third, we find the nature of the remaining offense s captures the gravamen of the
original specifications, and the circumstances surrounding appellant’s conduct
remain admissible with respect to the remaining offenses, including the fact that an
Army regulation prohibited the very maltreatment in which he engaged. F inally,
based on our experience, we are familiar with the remaining offense s so that we may
reliably determine what sentence would have been imposed at trial.
Reassessing the sentence based on the noted error and the entire record, we
AFFIRM the approved sentence. We find this reassessed sentence is not only purged
3
MORROW — ARMY 20111135
of any error but is also appropriate. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).
Senior Judge COOK and Senior Judge LIND concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES,
MALCOLM JR.
H. SQUIRES, JR.
Clerk
Clerk ofofCourt
Court
4