United States v. Williams ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Gene N. WILLIAMS, Sergeant
United States Army, Appellant
No. 23-0006
Crim. App. No. 20130582
Argued October 24, 2023—Decided May 9, 2024
Military Judges: Karin G. Tackaberry (arraignment and pretrial
motions), Tara A. Osborne (pretrial motions),
Stephen E. Castlen (trial), and
Christopher Martin (rehearing)
For Appellant: Captain Kevin T. Todorow (argued);
Colonel Michael C. Friess, Lieutenant Colonel Dale
McFeatters, Major Bryan A. Osterhage, Major Sean
Patrick Flynn, and Jonathan F. Potter, Esq. (on brief);
Major Mitchell D. Herniak.
For Appellee: Captain Dominique L. Dove (argued);
Colonel Christopher B. Burgess, Lieutenant Colonel
Jacqueline J. DeGaine, Lieutenant Colonel Pamela L.
Jones, and Captain Lisa Limb (on brief); Major Kalin P.
Schlueter.
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge MAGGS, Judge
HARDY, and Judge JOHNSON joined.
_______________
United States v. Williams, No. 23-0006/AR
Opinion of the Court
Judge SPARKS delivered the opinion of the Court.
This case is before us for a third time. Previously, in
2013, a general court-martial composed of officer and
enlisted members convicted Appellant, contrary to his
pleas, of one specification of rape of TW, four specifications
of forcible sodomy of SW, and five specifications of assault
consummated by a battery of SW, in violation of Articles
120, 125, and 128, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 920, 925, 928 (2000 & 2006). The
panel sentenced Appellant to a dishonorable discharge,
confinement for twenty years, forfeiture of all pay and
allowances, and reduction to E-1. The convening authority
approved only a bad-conduct discharge, confinement for
twenty years, forfeiture of all pay and allowances, and
reduction to E-1. The lower court affirmed the findings and
sentence. We granted review on whether the military judge
abused his discretion by providing a propensity instruction,
vacated the judgment of the lower court, and remanded the
case to the lower court for further consideration of the
granted issue in light of United States v. Hills, 75 M.J. 350(C.A.A.F. 2016). 1
Upon remand, the lower court again affirmed the
findings and sentence, and we again reviewed the case. In
our second decision, we found a Hills violation and set
aside the findings of guilt as to the rape of TW specification,
three specifications of forcible sodomy of SW, and the
sentence. 2 We authorized a rehearing of the set aside
findings and the sentence.
In 2019, Appellant was tried at a combined rehearing
before a military judge at a general court-martial. The
1 In Hills, we held that using charged misconduct as
propensity evidence under Military Rule of Evidence 413 was an
abuse of discretion and that the military judge’s accompanying
members’ instructions “constituted constitutional error that was
not harmless beyond a reasonable doubt.” 75 M.J. at 353.
2 We affirmed one specification of forcible sodomy of SW, by
excepting the language of “divers occasions,” and affirmed the
five specifications of assault consummated by battery of SW.
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Opinion of the Court
rehearing offenses consisted of the three specifications of
forcible sodomy of SW, and two new additional charges: one
specification of aggravated sexual contact with EZ, a child
under the age of twelve, and one specification of sodomy of
EZ, a child under the age of twelve, in violation of Articles
120 and 125, UCMJ, 10 U.S.C. §§ 920, 925. The rape
specification of TW, for which Appellant was found guilty
at his first trial, and which we set aside and authorized for
rehearing, was dismissed by the Government.
At the rehearing, contrary to his pleas, Appellant was
found guilty of the three specifications of forcible sodomy of
SW and one specification of child sodomy of EZ. Appellant’s
sentence for these offenses, along with the resentencing for
the five specifications of assault consummated by battery
of SW, was a dishonorable discharge, confinement for
thirty-five years, forfeiture of all pay and allowances, and
reduction to E-l.
On appeal, the lower court then set aside Appellant’s
conviction for child sodomy of EZ, finding it was statutorily
time-barred pursuant to United States v. McPherson, 81
M.J. 372 (C.A.A.F. 2021). At this point, Appellant
remained convicted of four specifications of forcible sodomy
of SW, and five specifications of assault consummated by a
battery of SW. The lower court reassessed Appellant’s
sentence in light of United States v. Winckelmann, 73 M.J.
11 (C.A.A.F. 2013), and concluded that it could affirm only
so much of the sentence that provided for a dishonorable
discharge, confinement for nineteen years, forfeiture of all
pay and allowances, and reduction to the grade of E-1. We
then granted review of the following issue:
Whether the Army Court abused its discretion in
reassessing Appellant’s sentence.
United States v. Williams, 83 M.J. 257 (C.A.A.F. 2023)
(order granting review).
This Court will set aside a sentence reassessment by a
Court of Criminal Appeals only when necessary to correct
an obvious miscarriage of justice or an abuse of discretion.
United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). We
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Opinion of the Court
hold that there was not an obvious miscarriage of justice
and to the extent there was an abuse of discretion there is
no prejudice.
I. Background
A. 2013 Court-Martial
The initial allegations against Appellant were brought
by his ex-wives, SW and TW. Both testified to violent
marriages that involved rape, in the case of TW, and
forcible anal sodomy and battery, in the case of SW.
As we described in our prior opinion:
Appellant married TW in May 2000. During
trial, TW testified that while they were married,
Appellant raped her on divers occasions between
late 2000 and early 2003. TW claimed that
Appellant forced her to have nonconsensual
sex “[q]uite often, three or four times a week,
sometimes every[]day of the week” over a
108-week period. TW’s rape allegations formed
the basis of Charge I.
After Appellant and TW divorced in 2004,
Appellant married SW. Appellant and SW were
married for nearly eight years, during which time
Appellant allegedly forcibly anally sodomized her
and physically assaulted her multiple times. SW
testified that on one occasion in November 2007,
she escaped from Appellant’s grasp while he was
anally sodomizing her. She sought safety in their
children’s bedroom and attempted to barricade
the door, but Appellant kicked in the door, causing
it to come crashing down on her head. Scared for
her life and bleeding from her head, SW ran to a
neighbor’s house for help. That neighbor called
911, and an ambulance transported SW to the
hospital. Photographs taken that night document
the broken door and SW’s injuries from the
assault.
United States v. Williams, 77 M.J. 459, 461 (C.A.A.F. 2018)
(alterations in original) (footnote omitted).
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Opinion of the Court
B. Rehearing
At the rehearing, Appellant’s stepdaughter, EZ,
testified that, when she was seven or eight years old and
living in Germany, Appellant drove her to a secluded part
of the woods and put his penis in her anus. SW again
testified that Appellant forcibly sodomized her on multiple
occasions.
C. Sentence Reassessment 3
On appeal, the lower court set aside Appellant’s
conviction for child sodomy of EZ, finding it was statutorily
time-barred. Because the lower court set aside the child
sodomy conviction, it next needed to determine whether it
could reassess the sentence. First, the lower court
determined by its setting aside of the sodomy of a child
under the age of twelve, Appellant remained convicted of
the same offenses approved by the convening authority
from the first court-martial with the exception of the rape
of TW specification previously set aside, and the two
sodomy specifications that were no longer on divers
occasions but on one occasion. Therefore, the lower court
determined that it was limited in its sentence
reassessment to no greater than Appellant’s twenty years
of confinement that was approved by the convening
authority at his original court-martial pursuant to Article
63, UCMJ, 10 U.S.C. § 863 (2012), and Rule for Courts-
Martial (R.C.M.) 810(d).
In Winckelmann, 73 M.J. at 15-16, we set forth the
following list of four illustrative, although not exclusive,
factors for the lower court to consider in determining
whether to reassess a sentence or order a rehearing on the
sentence:
3 The case facts quoted and cited in this section were taken
from the lower court’s memorandum opinion on further review,
United States v. Williams, No. ARMY 20130582, 2022 CCA
LEXIS 345, 2022 WL 2100908 (A.F. Ct. Crim. App. June 10,
2022) (unpublished).
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Opinion of the Court
(1) Dramatic changes in the penalty landscape
and exposure.
(2) Whether an appellant chose sentencing by
members or a military judge alone. . . .
(3) Whether the nature of the remaining offenses
capture the gravamen of criminal conduct
included within the original offenses and, in
related manner, whether significant or
aggravating circumstances addressed at the
court-martial remain admissible and relevant to
the remaining offenses.
(4) Whether the remaining offenses are of the type
that judges of the courts of criminal appeals
should have the experience and familiarity with to
reliably determine what sentence would have
been imposed at trial.
(Citations omitted.)
Assessing the first Winckelmann factor, the lower court
found that the dismissal of the child sodomy offense did not
make “dramatic changes in the penalty landscape” in light
of the offenses for which Appellant remained convicted, as
he “still face[d] a maximum punishment of confinement for
life without eligibility for parole.” Evaluating the second
factor, the lower court found that Appellant’s choice of
sentencing by a military judge at the rehearing favored
reassessment. The lower court found that the third
Winckelmann factor favored reassessment because the
remaining offenses captured the “gravamen of [the]
criminal conduct . . . in light of the offenses for which
[A]ppellant was convicted in his original trial.” In this
regard, the lower court noted that “[t]he gravamen of
criminal conduct in the original trial centered around SW
and formed the basis of a significant number of the charges
and specifications that spanned a variety of dates and
locations,” compared to the rape specification involving TW
on one date and in one location. The lower court
determined that the “gravamen of the criminal conduct
[A]ppellant was charged with remain[ed] in the charges
and specifications involving SW, along with the child
sodomy charges.” Finally, regarding the previously set
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Opinion of the Court
aside rape specification, the lower court found that the
fourth Winckelmann factor favored reassessment because
“based on [their] experiences as judges on [the] court,” the
judges of the lower court were “familiar with the offense of
rape such that [the judges could] reliably determine what
sentence would have likely been imposed had [A]ppellant
not been convicted” of the rape specification. The lower
court then reassessed the sentence affirming only so much
of the sentence as provided for nineteen years of
confinement, forfeiture of all pay and allowances, reduction
to E-1, and a dishonorable discharge.
II. Analysis
Appellant argues that the lower court failed to
adequately analyze the final three Winckelmann factors.
Appellant takes issue with the lower court finding that the
second Winckelmann factor weighed in favor of
reassessment because he was sentenced by a military judge
at his second court-martial when “[t]he real sentence to be
evaluated is the one adjudged at Appellant’s first court-
martial—done by members.” Appellant argues that the
third Winckelmann factor did not favor reassessment
because although he stands convicted of four instances of
forcible sodomy of SW these crimes were not the gravamen
of his misconduct when compared to the rape of TW.
Finally, Appellant contends that the fourth Winckelmann
factor did not favor reassessment because the lower court
was not familiar with the remaining offense of forcible
sodomy because it has not been a criminal offense since
2016.
We will only disturb the lower court’s sentence
reassessment in order to prevent obvious miscarriages of
justice or abuses of discretion. Harris, 53 M.J. at 88. As an
initial matter, due to the complex procedural history, it is
necessary for us to determine if the lower court had any
sentence limitations when it conducted the sentence
reassessment. 4 Article 63, UCMJ, states, in pertinent part:
4 For purposes of this opinion, when we refer to “sentence
reassessment” that includes both a Court of Criminal Appeals
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Upon a rehearing the accused may not be tried for
any offense of which he was found not guilty by
the first court-martial, and no sentence in excess
of or more severe than the original sentence may
be adjudged, unless the sentence is based upon a
finding of guilty of an offense not considered upon
the merits in the original proceedings.
The implementing rule further provides:
When a rehearing or sentencing is combined with
trial on new charges, the maximum punishment
that may be imposed shall be the maximum
punishment under R.C.M. 1003 for the offenses
being reheard as limited in this rule, plus the total
maximum punishment under R.C.M. 1003 for any
new charges of which the accused has been found
guilty.
R.C.M. 810(d)(1).
The 2013 court-martial convening authority approved
Appellant’s sentence of a bad-conduct discharge,
confinement for twenty years, forfeiture of all pay and
allowances, and reduction to E-1. At Appellant’s rehearing,
he was sentenced to a dishonorable discharge, confinement
for thirty-five years, forfeiture of all pay and allowances,
and reduction to E-l. At the time of the rehearing, this
sentence complied with Article 63, UCMJ, even though it
was a harsher sentence than the first court-martial
sentence, as Appellant was found guilty of a child sodomy
offense that was not considered on the merits at his
original trial. However, when the child sodomy offense was
later set aside by the lower court, Appellant was no longer
found guilty of an offense that was not considered at his
original trial. This negated the basis on which the thirty-
five years of confinement was a permissible sentence. Thus,
the lower court correctly began Appellant’s sentence
reassessment with a sentence limitation of no greater than
deciding if it can perform a sentence reassessment in accordance
with Winckelmann, and a Court of Criminal Appeals performing
a sentence reassessment.
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Opinion of the Court
twenty years of confinement, as limited by his original
trial. 5
The lower court’s analysis considered both the first
court-martial offenses and the rehearing offenses during
its sentence reassessment review. Although Appellant was
no longer found guilty of an offense that was not considered
at his first court-martial when the lower court set aside the
child sodomy conviction, this does not mean that the lower
court was permitted to use the first court-martial, aside
from the sentencing cap, in its sentence reassessment of
the rehearing. We believe that part of the confusion as to
which offenses to consider stems from the third factor in
Winckelmann which states, “Whether the nature of the
remaining offenses capture the gravamen of criminal
conduct included within the original offenses.” 73 M.J. at
16. Because the Court in Winckelmann reassessed the
sentence from a single proceeding, the words “original
offenses” were naturally used to describe the offenses
charged in the first (and only) proceeding in that case. But
here, there were multiple proceedings—Appellant’s initial
court-martial and the rehearing. In this situation, a Court
of Criminal Appeals should look to the proceeding that
resulted in a sentencing error—usually the most recent
proceeding—when conducting a Winckelmann
reassessment analysis. Because reassessment is conducted
in response to a sentencing error, the analysis must
therefore examine the proceeding that caused the error.
Nothing that happened prior to the rehearing, aside from
the sentencing cap, was relevant to the lower court’s
5 The lower court, however, failed to consider that in United
States v. Mitchell, 58 M.J. 446, 448 (C.A.A.F. 2003), we stated
that although the difference in a bad-conduct and dishonorable
discharge may be subjective, for purposes of reviewing a
rehearing “a dishonorable discharge is more severe than a bad-
conduct discharge.” Accordingly, the lower court erred by
affirming Appellant’s dishonorable discharge, which was more
severe than the bad-conduct discharge approved by the
convening authority at Appellant’s first court-martial. We
correct this error in our decretal paragraph.
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Opinion of the Court
sentence reassessment. We do not sanction the lower
court’s Winckelmann analysis for factors three and four
that used the first court-martial’s rape offense in its
analysis. Nonetheless, Appellant forcibly sodomized and
assaulted SW on multiple occasions. The offenses he is
convicted of have a maximum confinement sentence of life
without eligibility for parole. However, consistent with
Article 63, UCMJ, and R.C.M. 810(d), his sentence was
capped at twenty years by the first court-martial. Under
these circumstances, his sentence to nineteen years of
confinement is not an obvious miscarriage of justice and to
the extent that there was an abuse of discretion there is no
prejudice.
III. Conclusion
The decision of the United States Army Court of
Criminal Appeals is affirmed as to the findings and to only
so much of the sentence as provides for a bad-conduct
discharge, confinement for nineteen years, forfeiture of all
pay and allowances, and reduction to E-1.
10