United States v. Cobaugh

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Senior Airman ERIC B. COBAUGH
United States Air Force
ACM 38662
14 December 2015
Sentence adjudged 25 April 2014 by GCM convened at Ramstein Air Base,
Germany. Military Judge: Christopher F. Leavey.
Approved Sentence: Bad-conduct discharge, confinement for 12 months,
forfeiture of all pay and allowances, and reduction to E-1.
Appellate Counsel for Appellant: Captain Jonathan D. Legg.
Appellate Counsel for the United States: Major Roberto Ramirez and
Gerald R. Bruce, Esquire.
Before
MITCHELL, DUBRISKE, and BROWN
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
DUBRISKE, Judge:
At a general court-martial, Appellant was charged with failure to obey a lawful
order, attempted killing of an unborn child, and aggravated assault, in violation of
Articles 92, 119a, and 128, UCMJ, 10 U.S.C. §§ 892, 919a, 928. A panel of officer and
enlisted members found Appellant, contrary to his pleas, guilty of failing to obey a lawful
order and assault consummated by a battery, which was the lesser included offense of
aggravated assault.
Appellant was sentenced to a bad-conduct discharge, 12 months of confinement,
forfeiture of all pay and allowances, and reduction to E-1. The convening authority
approved the sentence as adjudged.
On appeal, Appellant alleges the military judge erred in addressing an ambiguity
in the sentence originally announced by the panel members. Appellant argues the
military judge should have either interpreted the ambiguity in Appellant’s favor or
properly instructed the members on reconsideration procedures prior to the panel
returning to deliberations to clarify the sentence. We find no error. However, prior to
completing our statutory review of this case, we direct the completion of a new action
and promulgating order.
Background
The charged offenses surrounded Appellant’s assault of his pregnant wife in which
he repeatedly struck her about the head and torso with his fists. Appellant also choked
his wife during this altercation, which was only stopped when numerous bystanders
intervened and forcibly restrained Appellant. The incident was witnessed by multiple
individuals, as well as partially captured on a surveillance video. Appellant was
subsequently given a no-contact order by his unit commander that prohibited him from
contacting his wife. Appellant violated this order within hours of its issuance, generating
the failure to obey a lawful order specification.
Sentence Ambiguity
After the panel completed deliberations on Appellant’s sentence, the military
judge reviewed the sentencing worksheet and, after returning it, requested the president
deliver the panel’s sentence. The president announced, in addition to the punitive
discharge, confinement, and reduction in rank, that Appellant was sentenced “[t]o forfeit
all pay and allowances” and “[t]o forfeit $372 of your pay per month for 12 months.”
Immediately after the sentence was read in open court, the military judge
recognized the announcement relating to forfeitures was ambiguous. The military judge
advised the president that while both punishments were permissible, they obviously could
not impose partial forfeitures in conjunction with total forfeitures. The panel president
noted the confusion stemmed from the portion of the sentencing instructions addressing
forfeitures of pay and allowances imposed by operation of law when a military member is
sentenced to a punitive discharge or six months or more of confinement.
The military judge then returned the panel members to the deliberation room to
determine what amount of forfeitures were appropriate based on the panel’s deliberations.
Trial counsel and trial defense counsel lodged no objections to this course of action when
asked by the military judge.
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The panel members returned a short time later. After the military judge confirmed
with the president that the forfeitures being imposed had received the necessary votes
from the panel, the president announced Appellant was sentenced to total forfeitures of
pay and allowances.
As Appellant’s trial defense counsel failed to object to the military judge’s
resolution of this issue, we review the claim for plain error. In order “[t]o prevail under a
plain error analysis, [the appellant bears the burden of showing] that: ‘(1) there was an
error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial
right.’” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (quoting United States
v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).
Regardless of whether the panel’s announcement was erroneous or instead
contained an ambiguity that required clarification, we believe the military judge properly
resolved the discrepancy prior to adjournment. See Rule for Courts-Martial (R.C.M.)
1007(b); R.C.M. 1009(c)(2); see generally United States v. Jones, 34 M.J. 270, 271
(C.M.A. 1992) (stating a sentence cannot be increased after adjournment even to correct
clear errors in the announcement of the sentence). Our superior court has recognized a
trial judge’s authority to correct an erroneous sentence under R.C.M. 1007(b) prior to
adjournment when it stated:
We do not suggest that sentences cannot be corrected, even
upward, on the spot. The mere utterance of the sentence does
not [a]ffect some magical transformation. Ordinarily, it will
be only after the hearing has terminated that a charge of
collective heart-changing can arise.
United States v. Baker, 32 M.J. 290, 293 n.6 (C.M.A. 1991). We believe the same
rationale likewise applies when a military judge clarifies an ambiguous sentence under
R.C.M. 1009(c)(2) before the court is adjourned.
While Appellant argues the military judge allowed the sentence to be increased in
this case, we do not believe the discussion on the record supports this claim. The military
judge simply requested the members clarify the mutually exclusive portions of the
sentence relating to forfeitures. The sentence returned by the members did not increase
the sentence given the initial announcement of total forfeitures of pay and allowances but
instead only served to correct the ambiguity. See United States v. Garner, 71 M.J. 430,
434 (C.A.A.F. 2013). The discussion between the military judge and the panel president
establishes the clarified sentence was the sentence the members initially intended to
impose.
Additionally, Appellant has failed to identify how he has been prejudiced by any
error in this case. Provided the members would have imposed partial forfeitures,
3 ACM 38662
Appellant’s adjudged sentence would have still mandated total forfeitures of pay and
allowances during his period of confinement by operation of law. Moreover, we note
that, pursuant to Appellant’s request, the convening authority deferred the adjudged
forfeitures until action, which occurred after Appellant’s release from confinement, to
facilitate the waiver of pay and allowances for the benefit of Appellant’s spouse. As
Appellant has not alleged he forfeited total pay and allowances between action and his
placement on appellate leave, we see no material prejudice in this case. See United States
v. Lonnette, 62 M.J. 296, 297 (C.A.A.F. 2006).
Convening Authority Action
Pursuant to defense motion, the military judge granted Appellant an additional 24
days of pretrial confinement credit because Appellant did not receive his prescription
medications in a timely manner leading up to trial. This credit should have been captured
in the convening authority’s action. R.C.M. 1107(f)(4)(F); Air Force Instruction (AFI)
51-201, Administration of Military Justice, ¶ 9.4.1 (6 June 2013). While there is no
evidence Appellant suffered prejudice in the form of extended confinement, we order a
corrected action and promulgating order that addresses this credit. See United States v.
Stanford, 37 M.J. 388, 391 (C.M.A. 1993).
We also note the convening authority’s action erroneously approved total
forfeitures of pay and allowances even though Appellant had been released from
confinement prior to action. R.C.M. 1107(d)(2), Discussion; AFI 51-201, Administration
of Military Justice, ¶ 9.26.1 (6 June 2013). We find no prejudice to Appellant but direct
the corrected action and promulgating order likewise address this matter.
Conclusion
The record of trial is returned to The Judge Advocate General for remand to the
convening authority for withdrawal of the original action and substitution of a corrected
action and promulgating order. Thereafter, Article 66, UCMJ, 10 U.S.C. § 866, shall
apply.
FOR THE COURT
LEAH M. CALAHAN
Clerk of the Court
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