United States v. Specialist DRAKE S. McANINCH

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist DRAKE S. McANINCH
United States Army, Appellant
ARMY 20170091
Headquarters, United States Army Alaska
Jeffrey Lippert and Lanny J. Acosta, Military Judges
Colonel Erik L. Christiansen, Staff Judge Advocate (pretrial)
Colonel Roseanne M. Bennett, Staff Judge Advocate (recommendation)
Lieutenant Colonel Stephen W. McGaha, Acting Staff Judge Advocate (addendum)
For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Zachary Spilman,
Esquire (on motion for remand).
For Appellee: Lieutenant Colonel Eric K. Stafford, JA.
13 March 2018
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of three specifications of rape of a child, one specification of
sexual abuse of a child, and one specification of production of child pornography,
in violation of Articles 120b and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 920b, 934. The military judge sentenced the accused to a dishonorable
discharge, confinement for twenty-four years, forfeiture of all pay and allowances,
and reduction to the grade of E-1. The acting staff judge advocate’s addendum to
the post-trial recommendation (addendum) agreed with defense assertions that the
post-trial processing delay of appellant’s case was unreasonable and recommended
disapproving one month of confinement. The convening authority approved the
findings and all of the sentence except for one month of confinement.
This case is before us for Article 66, UCMJ, review. Although this case has
yet to be briefed on any assignment of error, it is before us pursuant to appellant’s
unopposed “Motion For Remand For A New Convening Authority’s Action.”
McANINCH—ARMY 20170091
Appellant asserts that the addendum contained new matters in the form of a Rule for
Courts-Martial (R.C.M.) 1105A letter from the child victim’s mother and that
neither the addendum nor the R.C.M. 1105A letter were served on either appellant or
appellant’s counsel.
Granting the motion would return jurisdiction over the case to the convening
authority. We see no issue in raising this assignment of error as a motion because, if
such relief is required, resolving the issue early serves the needs of judicial
economy. Appellant served the motion along with supporting affidavits on 6 March
2018. Government appellate counsel informed the court on 9 March 2018 the
government did not oppose the motion.
LAW AND DISCUSSION
Appellant was convicted of numerous offenses occurring between on or about
3 June 2013 and on or about 31 July 2014. The limitation to the convening
authority’s discretion as to action on the findings and sentence does not apply where
“at least one offense resulting in a finding of guilty occurred prior to 24 June 2014,”
in which case the prior version of R.C.M. 1107 applies. See R.C.M. 1107, note.
Thus, the convening authority had the discretion in taking action on appellant’s case
to disapprove some or all of appellant’s findings and sentence. See R.C.M. 1107(c),
(d)(1) (2012 ed.).
We will not speculate as to what action the convening authority would have
taken in this case if appellant had been allowed to submit materials to address the
new R.C.M. 1105A matters. We therefore grant relief as directed in our decretal
paragraph.
CONCLUSION
The convening authority’s action, dated 4 January 2018, is set aside. The
record of trial is returned to the Judge Advocate General for a new SJAR,
Addendum, and action by the same or a different convening authority in accordance
with Article 60(c)-(e), UCMJ. We also note, the promulgating order dated 4 January
2018 incorrectly lists “Charge I” as a violation of “Article 120” rather than Article
120b and should be corrected in a new promulgating order upon issuance of the new
action.
FOR THE COURT:
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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