United States v. Sergeant First Class SEAN J. DILLON

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and SCHASBERGER
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant First Class SEAN J. DILLON
United States Army, Appellant
ARMY 20160324
Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
Richard J. Henry, Military Judge
Colonel David E. Mendelson, Staff Judge Advocate
For Appellant: Major Julie L. Borchers, JA; Captain Daniel C. Kim, JA (on brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Wayne H. Williams, JA; Captain Joshua Banister, JA (on brief).
17 January 2019
--------------------------------
SUMMARY DISPOSITION
--------------------------------
SCHASBERGER, Judge:
Sergeant First Class Sean Dillon argues he suffered unlawful post-trial
punishment when his escorts publically removed the rank from his uniform
immediately after trial. We agree. The public, premature removal of appellant’s
rank was unlawful and inappropriate. We grant relief in our decretal paragraph.
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of sexual assault, one specification of
aggravated sexual assault of a child, one specification of aggravated sexual assault,
one specification of forcible sodomy, and one specification of indecent acts with a
child in violation of Articles 120, 125, and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§920, 925, and 934. 1 The military judge sentenced appellant to
1
Appellant’s convictions span multiple revisions of the UCMJ. The military judge
acquitted appellant of one specification of rape of a child, one specification of
sexual assault, and one specification of sodomy of a child.
DILLON—ARMY 20160324
a dishonorable discharge, thirty years of confinement, and a reduction to the grade
of E-1. The convening authority approved the adjudged sentence, except that he
approved only so much of appellant’s sentence to confinement as extends to twenty-
nine years and 11 months of confinement.
In addition to appellant’s allegation of unlawful post-trial punishment,
appellant alleges his conviction is legally and factually insufficient. After a
thorough review of the record we ourselves are convinced beyond a reasonable doubt
appellant committed the offenses of which he was convicted. We have also
considered the initial matters and the further supplementary matters appellant raised
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 2 We find these
matters merit no relief.
2
Among other claims, appellant alleges ineffective assistance of counsel in that: (1)
his defense counsel did not present sufficient evidence in mitigation regarding his
medical issues; (2) his defense counsel did not ask for a DNA expert to counter the
government expert; and, (3) his defense counsel did not ask for a post-trial 39(a)
session to contest personal jurisdiction. None of these claims warrant relief.
We find defense counsel’s conduct within the range of reasonable professional
assistance. Cf. United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). Defense
counsel introduced ample evidence of appellant’s medical issues, including witness
testimony on the circumstances of appellant’s injuries and corroboration of
appellant’s unsworn statement. As to the need for an expert to understand or explain
the DNA evidence, the defense team effectively countered the DNA evidence
through cross-examination and appellant fails to show what more would be gained
with expert assistance. Further, “we need not determine whether any of the alleged
errors [in counsel’s performance] establish[] constitutional deficiencies under the
first prong of Strickland . . . [if] any such errors would not have been prejudicial
under the high hurdle established by the second prong of Strickland.” Id.(quotations omitted) (alterations original). We find this is such a case. There is no
reasonable probability that, absent the alleged errors, the result would be different.
See United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016). Further, appellant’s
claim regarding personal jurisdiction is meritless. Although appellant was close to
retirement before any charges were preferred, he was not, in fact, retired.
Appellant’s additional allegation of error is that he has been prohibited any contact
with his minor biological sons due to blanket prison policies. We conclude the
reasoning of the majority opinion in United States v. Jessie, ARMY 20160187 (Army
Ct. Crim. App. 28 Dec. 2018), applies to appellant. Further, even if this court had
decided Jessie differently, we would not find appellant’s sentence inappropriate as—
unlike in Jessie—appellant has not shown he exhausted administrative remedies.
2
DILLON—ARMY 20160324
BACKGROUND
Appellant has fathered five children, two of whom are daughters. One
daughter, CM, lived mostly with her mother. She would visit appellant for the
summer. The other daughter, HD, lived with her parents and brothers during the
times her mother and appellant were married. These periods were from HD’s birth
in 1995 through 2005 and then again in 2009 through 2014. During the four years
her parents were divorced, HD and her brothers would visit appellant.
Appellant sexually abused his daughters. He sexually assaulted HD starting
in 2007 when she was in the sixth grade. Appellant would take her to an attic
bedroom of their house in Oklahoma and preform various sexual acts on her. This
abuse continued until March 2014 when HD told her mother, who told a friend, who
told the police. Appellant also sexually abused his older daughter, CM. In 2007,
appellant committed an indecent act on CM when she was 14 years of age.
After trial, outside the courthouse, military escorts, including appellant’s
company commander, ripped appellant’s rank insignia off his uniform. This was
witnessed by several people including appellant’s family members and a civilian
witness from the trial. After having his rank removed, appellant was escorted to the
hospital before being taken to jail. Several days later, during a meeting between
appellant and his trial defense counsel, the defense counsel noted the absence of
rank and asked appellant and appellant’s company commander about it. Appellant’s
commander acknowledged the error.
Appellant first raised this issue of unlawful punishment in his Rule for
Courts-Martial 1105 submissions. The Staff Judge Advocate (SJA) responded to this
allegation in his addendum to the SJA’s Recommendation, but claimed there was no
legal error.
On appeal, appellant provided a signed personal statement 3 describing the
events at issue, and provided an affidavit from a witness. The government provided
no contrary evidence or affidavits.
3
In the future, we will ordinarily expect such assertions to be made by way of
affidavit to enjoy full evidentiary weight before this court. See United States v.
Tovarchavez, 2017 CCA LEXIS 602, *2-9 (Army Ct. Crim. App. 2017). This court
granted appellant’s motion to attach his unsworn declaration prior to this court’s
memorandum opinion in Tovarchavez.
3
DILLON—ARMY 20160324
LAW AND DISCUSSION
It is unrebutted that appellant’s chain of command publicly removed the rank
from his uniform as he was led away from the courthouse. Appellant alleges this
constitutes illegal post-trial punishment in violation of Articles 55 and 57 of the
UCMJ. We agree in part.
We address the Article 57 claim first. Article 57(a) states: “Any. . . reduction
in grade that is included in a sentence of a court-martial takes effect on the earlier
of. . . the date that is 14 days after the date on which the sentence is adjudged; or. . .
the date on which the sentence is approved by the convening authority.” As the
sentence was adjudged on 28 April 2016, and the convening authority did not take
action until 20 October 2016, appellant’s reduction in rank took effect on 12 May
2016, fourteen days after the sentence was adjudged. By removing appellant’s rank,
his chain of command purportedly reduced 4 him from the rank of Sergeant First
Class to the rank of Private E1 on 28 April 2016. Although this act did not affect
appellant’s pay, we find it lowered his military status in the eyes of the military
community prior to 12 May 2016, thus violating Article 57, UCMJ.
We next consider appellant’s Article 55 argument. We review allegations of
cruel or unusual punishment de novo. United States v. White, 54 M.J. 469, 471
(C.A.A.F. 2001). “Both the Eighth Amendment and Article 55, UCMJ, prohibit
cruel and unusual punishment. In general, we apply the Supreme Court’s
interpretation of the Eighth Amendment to claims raised under Article 55, UCMJ.”
United States v. Gay, 74 M.J. 736, 740 (A.F. Ct. Crim. App. 2015) aff’d, 75 M.J.
264 (C.A.A.F. 2016). The Eighth Amendment forbids punishment that is
“incompatible with the evolving standards of decency that mark the progress of a
maturing society, or which involve the unnecessary and wanton infliction of pain.”
United States v. Lovett, 63 M.J. 211,214 (C.A.A.F. 2006) (citations omitted).
Having reviewed previous cases with similar circumstances, we find decisions
on both sides of the issue. In United States v. Fields, the accused’s first sergeant
ordered the accused into the bathroom, ripped off his rank, and then brought him
back to the court room. Our sister court found that the first sergeant’s actions did
4
There is no evidence that appellant’s pay was reduced at this time, but forcing
appellant to appear as a Private E1 is a loss in military status. See Dep’t of Army
Pam. 27-9, Legal Services: Military Judge’s Benchbook, para. 8-3-31 (10 Sept.
2014). “A reduction carries both the loss of military status and the incidents thereof
and results in a corresponding reduction of military pay.”
4
DILLON—ARMY 20160324
not amount to a violation of Article 55 or the Eighth Amendment. 5 74 M.J. 619, 623
(A.F. Ct. Crim. App. 2015). On the other hand, in United States v. Anderson, this
court found a violation of Article 55 when a noncommissioned officer publically
removed Sergeant Anderson’s rank with a knife. 2005 CCA LEXIS 516 (Army Ct.
Crim. App. 22 March 2005).
Relying on appellant’s own assertions, his company commander removed his
rank under the misunderstanding appellant’s adjudged reduction took effect
immediately. For this reason, we do not find the removal was done with the intent
to degrade or humiliate appellant. Rather, we conclude appellant’s commander
removed the rank insignia in a manner similar to how he might have done it after
imposition of non-judicial punishment under Article 15, UCMJ. Under the specific
circumstance of this case, we find the removal of appellant’s rank was not so
“incompatible with evolving standards of decency” as to violate Article 55, UCMJ.
Further, we find no evidence appellant’s chain of command compounded their error
by parading appellant in front of his unit or other soldiers to humiliate him.
Therefore, we conclude the removal of appellant’s rank, though contrary to Article
57, did not violate Article 55 or the Eighth Amendment.
CONCLUSION
Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Reassessing the sentence on the basis of the error noted, we affirm
only so much of the sentence as provides for a dishonorable discharge, reduction to
the grade of E-1, and confinement for twenty-nine years ten months and twenty-three
days. All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the sentence set aside by this decision, are ordered restored.
See UCMJ arts. 58a(b), 58b(c), and 75(a).
Senior Judge MULLIGAN and Judge FEBBO concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
5
The Air Force Court of Criminal Appeals found a violation of Article 57 and as a
remedy did not affirm the reduction in rank.
5