United States v. Harris

GIERKE, Judge,

with whom

CRAWFORD, Chief Judge, joins (concurring in the result):

By deciding this case on the basis of the first granted issue, this Court appears to hold that the Court of Criminal Appeals erred by giving the convening authority an option to order a rehearing or reassess the sentence. The majority appears to say that no convening authority could have properly reassessed the sentence and that no reassessment, no matter how generous to appellant, could satisfy the criteria established by this Court. It implies that, even if the convening authority had reassessed the sentence and drastically reduced it, e.g., by approving only a one-grade reduction, this Court could not be satisfied that, absent the error, the sentence would have been at least of that magnitude. United States v. Sales, 22 MJ 305, 307 (CMA 1986). I cannot support that position.

In my view, the court below did not err by giving the convening authority the option to reassess the sentence. The error occurred when the convening authority exercised his option to reassess but did not apply the Sales criteria. His error was compounded by the failure of the court below to correct it.

Neither the staff judge advocate’s recommendation nor the convening authority’s action reflects cognizance of the Sales criteria for sentence reassessment. The court below could have remedied these deficiencies by specifically applying Sales in its review of the convening authority’s action, but it did not.

In my view, the court below abused its discretion by failing to review the convening authority’s reassessment under the Sales criteria. See United States v. Taylor, 47 MJ 322, 325 (1997). Thus, we are confronted with a sentence reassessment but no indication of the criteria under which that reassessment was made. Ordinarily, my preference would be to return the case to the court below for reconsideration under Sales. However, as the court below was afforded the opportunity to correct the error after the first remand and failed to apply the correct legal standard, I join the majority in ordering a sentence rehearing.