United States v. Specialist BRANDON C. PATTERSON ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist BRANDON C. PATTERSON
United States Army, Appellant
ARMY 20150325
Headquarters, Fort Hood
Rebecca K. Connally, Military Judge
Colonel Ian G. Corey, Staff Judge Advocate
For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Ryan T.
Yoder, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Captain Austin L. Fenwick, JA (on brief).
4 January 2017
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SUMMARY DISPOSITION
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PENLAND, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of rape of a child and forcible sodomy, in violation of Articles
120b and 125 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920b, 925
(2012) [hereinafter UCMJ]. The military judge sentenced appellant to be
dishonorably discharged, to be confined for sixteen years, and to be reduced to the
grade of E-1. In accordance with a pretrial agreement, the convening authority
approved only so much of the adjudged sentence as provided for a dishonorable
discharge, confinement for ten years, and reduction to E-1.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one issue, which merits discussion and relief. We have considered the matters
personally submitted by appellant pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982); they lack merit.
The Specification of Charge I (rape of a child) and the Specification of
Charge II (forcible sodomy) arose from one sexual act appellant committed upon his
PATTERSON—ARMY 20150325
four-year old daughter. Trial counsel informed the military judge that the
government made this charging decision based on exigencies of proof. The military
judge merged the Specifications of Charges I and II for sentencing purposes.
Appellant now asserts that both specifications were one criminal act and asks this
court to dismiss the Specification of Charge II. The government concedes an
unreasonable multiplication of charges, but argues the correct remedy is to
conditionally dismiss Charge II and its Specification.
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts-Martial
[hereinafter R.C.M.] 307(c)(4). When specifications are charged in the alternative
for exigencies of proof, it is the military judge’s responsibility to consolidate or
dismiss a specification. United States v. Elespuru, 73 M.J. 326, 329 (C.A.A.F.
2014). Under the facts of this case, the Specification of Charge II constitutes an
unreasonable multiplication of charges with the Specification of Charge I. We will
therefore provide relief in our decretal paragraph.
In United States v. Sales, our superior court set forth the standard for sentence
reassessment: “if the [service] court can determine to its satisfaction that, absent
any error, the sentence adjudged would have been of at least a certain severity, then
a sentence of that severity or less will be free of the prejudicial effects of
error . . . .” 22 M.J. 305, 308 (C.M.A. 1986). After conducting a thorough analysis
on the basis of the entire record and in accordance with the principles articulated in
Sales and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), we are
confident in our ability to reassess appellant’s sentence without the need for a
rehearing.
Because the military judge merged the Specification of Charge I with the
Specification of Charge II for sentencing, we are confident she would have adjudged
the same sentence absent the error noted, and the convening authority would have
approved the same sentence absent that error. We also conclude, pursuant to Article
66, UCMJ, that such a sentence is not inappropriately severe for the remaining
finding of guilty; the gravamen of the offense and aggravation evidence remain
unchanged.
CONCLUSION
The findings of guilty of the Specification of Charge II and Charge II are set
aside and DISMISSED. The remaining findings of guilty and the sentence are
AFFIRMED. 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 art. 75(a).
Senior Judge CAMPANELLA and Judge HERRING concur.
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PATTERSON—ARMY 20150325
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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