United States v. Bright

UNITED STATES, Appellee
v.
Sean P. BRIGHT, Sergeant First Class
U.S. Army, Appellant
No. 07-0269
Crim. App. No. 20020938
United States Court of Appeals for the Armed Forces
Argued April 8, 2008
Decided June 9, 2008
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Charles W. Gittins, Esq. (argued); Captain Shay
Stanford (on brief); Captain Edward G. Bahdi and Captain Fansu
Ku.
For Appellee: Captain Teresa T. Phelps (argued); Colonel John
W. Miller II, Major Elizabeth G. Marotta, and Captain W. Todd
Kuchenthal (on brief); Major Tami L. Dillahunt and Captain
Michael Friess.
Amicus Curiae for Appellant: Charles B. Cromwell (law student)
(argued); Jeffrey T. Renz, Esq. (supervising attorney) (on
brief) -- for the University of Montana School of Law.
Military Judge: Ronald W. White
This opinion is subject to revision before final publication.
United States v. Bright, No. 07-0269/AR
Judge ERDMANN delivered the opinion of the court.
Sergeant First Class Sean P. Bright, a drill sergeant, was
convicted of raping a female trainee on three separate
occasions.1 The United States Army Court of Criminal Appeals
affirmed his convictions. United States v. Bright, No. ARMY
20020938 (A. Ct. Crim. App. Dec. 19, 2006). We granted review
to consider whether the evidence was legally sufficient to
support the findings of guilty as to the three rape
specifications. 65 M.J. 323 (C.A.A.F. 2007). We hold that the
evidence was not legally sufficient to support the rape
convictions and reverse the findings as to those specifications.2
BACKGROUND
Private W was twenty-three years old when she completed
basic training and arrived at Advanced Individual Training (AIT)
1
Bright was also convicted of several other offenses which are
not at issue in this appeal, including: two specifications each
of forcible sodomy, maltreatment, and violating a lawful
regulation by wrongfully having a relationship with a private;
one specification each of attempting to violate a lawful general
regulation by wrongfully asking a private to have a
relationship, adultery, and impeding an investigation. These
charges against Bright were based on allegations of
improprieties with three different female trainees. Private W,
the alleged victim of the rape specifications, was also named in
the forcible sodomy specifications, one maltreatment
specification, one disobedience specification, and the adultery
charge.
2
Oral argument in this case was heard at the University of
Montana School of Law, Missoula, Montana, as part of the court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
2
United States v. Bright, No. 07-0269/AR
on December 3, 2001. Bright, Private W’s platoon drill sergeant
at AIT, made Private W a squad leader. According to Private W’s
testimony, on February 1, 2002, Bright called her into his
office. Bright initially engaged her in a verbal exchange
typical of the platoon. He asked questions such as, “‘Are you
ready for this, private? Are you ready?’” and “‘You ain’t
ready. Are you scared?’” Although Private W did not know what
was behind the questions, she responded: “‘Yes, drill sergeant,
I’m ready,’” and “‘I ain’t scared of nothing, drill sergeant.’”
During this exchange, Bright also stated, “‘I’m going to get up
and you’re going to receive.’” Private W testified that she
responded “‘Hooah,’” but she did not know what Bright was
talking about at the time.
Private W testified that Bright then sent her to wait in
the hallway. Bright left and when he returned he winked at her
and called her back into his office. While she was standing in
front of Bright’s desk at parade rest, Bright asked Private W if
she found him attractive. Private W initially said, “‘I don’t
know,’” but when Bright pressed the issue, Private W answered
affirmatively. Bright told Private W to go to the female bay
and call him on his cell phone. Bright said that they “were
going to meet up at the Comfort Inn.” According to Private W’s
testimony, she first responded, “‘No, it’s a bad idea, drill
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United States v. Bright, No. 07-0269/AR
sergeant.’” Bright persisted, however, and Private W called
him.
During the phone call, Bright told Private W to take a cab
to the hotel and page him back with the room number. Private W
initially “told him no” because she didn’t “really want to go
meet up with my drill sergeant at a hotel.” Private W
testified, “[T]here’s only one reason you’re going to go meet up
with somebody at a hotel out of the blue for a couple of hours.”
On direct examination, Private W indicated that she knew exactly
what Bright meant. Private W stated that when she initially
refused, Bright told her to meet him “‘[o]r else you can stay
here this weekend.’”
According to Private W, she was on “Gold Pass” status,
which meant that she could freely leave post on the weekends.
During the phone call, Bright reminded Private W that he
controlled her pass status and asked her if she wanted “to spend
eight months at Bravo locked down on Red Pass.” When Private W
responded that she did not want that, Bright answered, “‘Well,
then do what I just told you to do,’” and Private W agreed.
Private W testified that she packed a bag, took a cab to
the hotel, checked in and paid for the room, and then called
Bright with the room number. Private W watched television as
she waited for Bright to arrive. When he arrived a few minutes
later, Bright gave her money for the room, undressed himself and
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United States v. Bright, No. 07-0269/AR
told her to take off her clothes. She undressed and they had
sexual intercourse. When asked during cross-examination if
Bright threatened her, Private W answered, “Not physically, no.”
Private W’s testimony reveals that she met Bright at
various hotels on four more occasions: on or about February 8,
February 15, sometime in the middle of March, and on or about
April 5, 2002. As to the second encounter on February 8, 2002,
Private W testified that “[e]xactly the same thing” happened:
she arrived first and checked into the room; when Bright arrived
he told her to get undressed; after she undressed they had sex
and he left. Private W described the sex on the first and
second occasions as “[j]ust normal intercourse.” She said she
“wasn’t really doing anything . . . just laid there . . . and
waited.” When asked on cross-examination, “You didn’t tell him
to stop did you?,” Private W answered, “No.”
Private W’s testimony indicates that while she was out with
friends, Bright paged her to arrange their third encounter on
February 15, 2002. She testified: “[H]e kept paging me and
paging me and finally I called him back. And . . . he told me
to meet him at the Budget Lodge . . . . So I was like,
alright.” Bright arrived at the hotel first and was in bed
undressed when Private W arrived. Bright told her to take her
clothes off. Private W started undressing and Bright helped her
finish. In the words of Private W, “then we had sex.” Again,
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United States v. Bright, No. 07-0269/AR
Private W described their encounter as “[j]ust normal
intercourse.” She said that it was “[p]retty much the same as
usual. I just kind of laid there and didn’t really do much of
anything.” When asked on cross-examination, “And [you] just
casually kind of had sex and smoked cigarettes, is that right?,”
Private W answered, “Yes.”
The fourth incident involved a mix-up with hotel
arrangements. According to Private W, Bright “showed up
eventually” and sent Private W to get beer out of his car.
Private W testified, “I came back in and we just had sex.” On
cross-examination, Private W was asked, “so I take it on this
one ya’ll just had sex, drank beers, smoked cigarettes, is that
right?” Private W answered, “Yes.”
With respect to their last encounter on April 5, 2002,
Bright paged Private W to arrange their meeting. When she
called him back, he told her to meet him at a specific hotel.
According to Private W’s testimony, her response was “okay.”
When she arrived at the hotel, Private W called Bright with the
room number and ordered a pizza while she was waiting for him to
arrive. Bright told her to call back and order soda. Private W
testified that after the pizza came, “we ate, had sex, and he
left.” Private W also testified that “[l]ater on . . . he would
tell me he loved me and wanted me to have his baby and stuff
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United States v. Bright, No. 07-0269/AR
like that.” Her response was: “I told him it was crazy and no
way am I getting pregnant by anybody, let alone him.”
Private W’s testimony also described an incident of sodomy
that she tried to resist. Private W could not recall exactly
when the sodomy occurred, but believed it may have been during
their third encounter. According to Private W, Bright initiated
anal sex after intercourse. Her initial reaction was “‘Uh uh.’
. . . ‘No way.’” According to Private W’s testimony, Bright
flipped her body over and she tried to crawl away. He grabbed
her hips and pulled her back towards him. Private W testified
that she said “no” a couple times and tried to move away a
couple times and then just waited for it to end. Private W also
testified that Bright told her to perform oral sex on him.
According to Private W, Bright would “push my head in that
general direction and I’d just do it.”
During her testimony, Private W described how some of their
hotel encounters were arranged. She indicated that sometimes
Bright would “make something up to call [her] into his office”
and yell at her while gesturing with his hands that she should
call him. He also would page her using a code. She testified:
[I]f it was over the weekend or something and I never
called him back and he had been paging me then like on
Monday or something -- like one time he smoked us.
Right? He was like, “Private [W], you know you messed
up this weekend. You know what you did wrong,” . . . .
and we’re all down doing pushups.
7
United States v. Bright, No. 07-0269/AR
When asked if she had ever seen Bright’s “angry side,”
Private W testified that “he’ll like trash things and just start
throwing everything around all over the place in his office or
something if he’s mad. And he just goes off the hook . . . .”
Private W made clear in her testimony, however, that he never
threw things directly at her. She also testified that “if I
hadn’t called him in a while when I was supposed to call” he
would say to her things like:
Don’t you f[...]ing piss me off because you know I’ve
got control over this company and I can do whatever I
want so you better not piss me off and you better do
what I tell you to do and when I tell you to do it. I
don’t give a f[...] about anything else.
Private W emphasized this point later in her testimony, stating
that when she didn’t return his pages:
He would yell at me outside and he smoked the platoon
or he’d smoke us all or he’d just -- like one time he
paged me like a lot and I finally called him back and
he told me -- he told me, “Don’t piss me off. You
don’t want to mess with me. I’m the wrong person to
be playing around with.”
When asked during her testimony if Private W ever thought
about running or calling the police while at the hotel room, she
answered:
Not really. For one, there’s -- you know, I ain’t
that big of a person compared to Drill Sergeant
Bright, sir, and if I really wanted to run, and he
really wanted to stop me, I don’t think I’d make it
very far. And I never thought about calling the cops
really. You know? I didn’t think -- they’d be like,
“Oh, why are you here with him in the first place
anyways?”
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United States v. Bright, No. 07-0269/AR
On cross-examination, Private W was asked about their first
encounter on February 1, 2002: “[D]id he or did he not abuse
you, cause you any harm, or threaten you at that time?” She
answered, “He threatened to take away my pass status and he
threatened to keep me on lock down for the entire eight months
that I was at Bravo Company.” Defense counsel cross-examined
her further: “But you never tried to, again, not show up?”
Private W answered, “Well, if I just didn’t show up, I’d have
the consequences to deal with the next week when I saw him
again.”
On redirect examination, Government counsel specifically
asked Private W what those consequences were, and Private W
reiterated the concerns she had about her pass status: “He told
me he would take away my pass status and that I’d be locked down
at Bravo company for the entire time -- for the entire time that
I would be there. And I didn’t want to do that and that life
would be a living hell.” Private W never testified that she
feared Bright would physically harm her if she did not meet him
at the hotels to engage in sexual intercourse.
The Government also presented the testimony of Private M,
another squad leader at Bravo Company and a woman with whom
Private W had discussed the sexual relationship between herself
and Bright. Private M was asked if she had ever seen Bright’s
“angry side.” Private M answered affirmatively and testified
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United States v. Bright, No. 07-0269/AR
that she felt threatened while he was “chewing [her and Private
W] out because of our squads.” She stated that Bright said she
should be scared of him “‘[b]ecause you don’t know how mother
f[...]in’ violent I can get.’” Private M also stated:
[W]ell, like he would get up into people’s faces and
tell them to get in the f[...]ing grass -- “Get in the
f[...] -- get the hell out of my formation. Get in
the f[...]ing grass.” And he would like toss stuff
all around when he was tearing apart lockers. He
would throw people on the grass. He’d -- well, not
like throw them, but he would tell them to get in the
grass. Get (inaudible) and push. And he would be
yelling. He’d like grab their face yelling at them
and everything, cussing at ’em.
After the close of the Government’s case, the military
judge found that the evidence was legally insufficient to
support the specification regarding the first allegation of rape
on February 1, 2002. The members subsequently found Bright not
guilty of raping Private W on February 22, 2002, but guilty of
raping Private W on February 8, February 15, and April 5, 2002.3
Bright was sentenced to reduction to E-1, forfeiture of $550 pay
per month for twelve months, confinement for five years, and a
dishonorable discharge. The convening authority approved the
sentence as adjudged.4
3
The members also found Bright guilty of several related
offenses. See supra note 1.
4
As noted, the Army Court of Criminal Appeals summarily
affirmed. United States v. Bright, No. ARMY 20020938 (A. Ct.
Crim. App. Dec. 19, 2006).
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United States v. Bright, No. 07-0269/AR
DISCUSSION
The question before us is whether the evidence is legally
sufficient to support the findings of guilty as to the
specifications alleging rape on February 8, February 15, and
April 5, 2002. Legal sufficiency is a question of law that this
court reviews de novo. United States v. Tollinchi, 54 M.J. 80,
82 (C.A.A.F. 2000). The test for legal sufficiency is whether,
considering the evidence in the light most favorable to the
prosecution, any reasonable factfinder could have found all the
essential elements of the offense beyond a reasonable doubt.
United States v. Day, 66 M.J. 172, 173 (C.A.A.F. 2008).
Under Article 120(a), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920(a) (2000), “[a]ny person . . . who
commits an act of sexual intercourse, by force and without
consent, is guilty of rape.” The Manual for Courts-Martial,
United States (MCM) identifies the essential elements of rape as
follows: (1) “That the accused committed an act of sexual
intercourse;” and (2) “That the act of sexual intercourse was
done by force and without consent.” MCM pt. IV, para. 45.b.
(2005 ed.).5
5
While not applicable to this case, we note that Article 120,
UCMJ, has been amended since Bright’s court-martial. See
National Defense Authorization Act (NDAA) for Fiscal Year 2006,
Pub. L. No 109-163, 119 Stat. 3136, 3257-63 (2006) (to be
codified as amended at 10 U.S.C. § 920). Corresponding
provisions in the MCM have also been amended. See MCM pt. IV,
para. 45 (2008 ed.).
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United States v. Bright, No. 07-0269/AR
The MCM states further:
Force and lack of consent are necessary to the
offense. Thus, if the victim consents to the act, it
is not rape. The lack of consent required, however,
is more than mere lack of acquiescence. If a victim
in possession of his or her mental faculties fails to
make lack of consent reasonably manifest by taking
such measures of resistance as are called for by the
circumstances, the inference may be drawn that the
victim did consent. Consent, however, may not be
inferred if resistance would have been futile, where
resistance is overcome by threats of death or great
bodily harm, or where the victim is unable to resist
because of the lack of mental or physical faculties.
In such a case there is no consent and the force
involved in penetration will suffice. All the
surrounding circumstances are to be considered in
determining whether a victim gave consent, or whether
he or she failed or ceased to resist only because of a
reasonable fear of death or grievous bodily harm.
MCM pt. IV, para. 45.c.(1)(b).
We have recognized that force and lack of consent are
separate elements but “there may be circumstances in which the
two elements are so closely intertwined that both elements may
be proved by the same evidence.” United States v. Simpson, 58
M.J. 368, 377 (C.A.A.F. 2003). We have also recognized that
force can be actual or constructive. See United States v.
Hicks, 24 M.J. 3, 6 (C.M.A. 1987). In determining whether force
and lack of consent occurred, the court-martial must consider
the totality of the circumstances presented in the case. United
States v. Cauley, 45 M.J. 353, 356 (C.A.A.F. 1996).
Bright contends that the rape specifications must be set
aside because the Government failed to establish that sexual
12
United States v. Bright, No. 07-0269/AR
intercourse occurred without Private W’s consent; or if the
intercourse did occur without consent, the Government failed to
establish that Bright would reasonably have been aware of
Private W’s non-consent due to her conduct. Bright also argues
that the evidence was legally insufficient to establish
constructive force because there was no nexus in time, place or
circumstances between Bright’s on-duty tirades and the off-post
intercourse.
The Government responds that Private W had a reasonable
belief that resistance would be futile based upon Bright’s
repeated threats, intimidation, and abuse of his authority and
position as Private W’s drill sergeant. Consequently, the
Government contends, consent may not be inferred and
constructive force has been established.
We turn first to the issue of consent and consider whether
Private W made her lack of consent “reasonably manifest by
taking such measures of resistance as called for by the
circumstances.” MCM pt. IV, para. 45.c.(1)(b). Proof that
Private W physically resisted Bright is not needed to support a
finding of lack of consent. Cauley, 45 M.J. at 356 (citing
United States v. Webster, 40 M.J. 384, 386 (C.M.A. 1994)). “A
lack of consent can be manifested by the victim in a number of
ways other than physical resistance.” Id. In Webster for
example, we concluded that the victim’s repeated verbal
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United States v. Bright, No. 07-0269/AR
rejections were enough to establish that the members could
reasonably have found or inferred beyond a reasonable doubt the
element of lack of consent. 40 M.J. at 387.
In this case, however, the record is devoid of any evidence
showing that Private W manifested a lack of consent or took any
measures to resist sexual intercourse with Bright on February 8,
February 15, and April 5, 2002. Private W’s testimony
establishes that on each occasion, she made arrangements by
phone with Bright to meet at a hotel, fully cognizant that once
at the hotel, the two would engage in sexual intercourse. Then,
unaccompanied by Bright, Private W made her own way to the
designated hotel.
In two of these three incidents, Private W reached the
hotel before Bright and waited for him to arrive. Excluding the
incident of sodomy which is not at issue in this appeal, Private
W’s descriptions of their sexual encounters do not include any
indication that Private W verbally or physically resisted sexual
intercourse either at the time the arrangements were made to
meet for sex or once the two were together at the hotel.
On the contrary, Private W’s testimony reveals that during
the phone calls preceding the hotel meetings on February 15, and
April 5, 2002, she affirmatively voiced her agreement to meet
Bright at the hotels, and there is no question that she knew
they would engage in sexual intercourse at the hotels. In
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United States v. Bright, No. 07-0269/AR
addition, when trial counsel asked her about having sex with
Bright on February 8, 2002, Private W testified expressly that
she did not tell Bright to stop.
This conduct contrasts markedly with her response to Bright
on the one occasion when he initiated anal sodomy after
intercourse. According to Private W’s testimony, at that time
she repeatedly told Bright “no” and tried to crawl away to avoid
his advances. While Private W’s conduct with respect to the
sodomy incident clearly supports a finding that lack of consent
was reasonably manifest as to that act, Private W’s accounts of
what she called “[j]ust normal intercourse” lack any similar
manifestations of lack of consent. We conclude that her
testimony with respect to the acts of “normal intercourse” fails
to provide a basis from which lack of consent can reasonably be
inferred.
Our conclusion that Private W did not make her lack of
consent reasonably manifest does not end our inquiry into
consent. As stated in the MCM, “[c]onsent, however, may not be
inferred if resistance would have been futile, where resistance
is overcome by threats of death or great bodily harm, or where
the victim is unable to resist because of the lack of mental or
physical faculties.” MCM pt. IV, para. 45.c.(1)(b). As this
case does not involve questions regarding the lack of mental or
physical faculties, we next consider whether “resistance would
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United States v. Bright, No. 07-0269/AR
have been futile, where resistance is overcome by threats of
death or great bodily harm.” Id.
In support of its argument that resistance would have been
futile, the Government points to Private W’s testimony that
before she entered the Army, she was told that she would be
raped by a drill sergeant and there was nothing she could do
about it. The Government also points to Private W’s testimony
that she did not think about running or calling the police when
she was with Bright at the hotels because “I ain’t that big of a
person compared to Drill Sergeant Bright” and “if I really
wanted to run, and he really wanted to stop me, I don’t think
I’d make it very far.” In addition the Government relies on the
testimony of another squad leader, Private M, who testified that
in the presence of Private W, Bright talked about his capacity
for violence. Finally, the Government points to the sodomy
incident, where Private W verbally indicated non-consent and
tried to crawl away, but Bright pulled her back and subjected
her to an act of sodomy despite Private W’s resistance.
In resolving questions of legal sufficiency, this court is
“‘bound to draw every reasonable inference from the evidence of
record in favor of the prosecution.’” United States v. Rogers,
54 M.J. 244, 246 (C.A.A.F. 2000) (quoting United States v.
Blocker, 32 M.J. 281, 284 (C.M.A. 1991)). When considered under
this standard, Private W’s testimony about the incident of
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United States v. Bright, No. 07-0269/AR
forcible sodomy and her testimony regarding Bright’s ability to
catch her if she ran from the hotel arguably provides some
support for a finding that, once Private W was physically
present in the hotel with Bright, resistance to sex may have
been futile.
However, the members are bound to consider the totality of
the circumstances presented by each case. Cauley, 45 M.J. at
356. On the facts of this case, when addressing whether the
futility of resisting sexual intercourse with Bright establishes
lack of consent, the Government cannot overcome the fact that
Private W was physically separated from Bright at the time she
agreed to meet him for sex on February 8, February 15, and April
5, 2002. After affirmatively indicating on the phone that she
was willing to meet him at the hotel, Private W made her own way
to the hotel unaccompanied by Bright who arrived at the hotel on
each occasion separately. There is no evidence to support the
inference that avoiding the hotel room would have been a futile
act of resistance.
In fact, Private W never testified that it would have been
futile to resist the encounters altogether. Rather, she
testified that if she did not meet him at the hotels as
requested, there would be consequences. In particular, she
indicated that on one occasion where she did ignore his pages,
Bright “smoked the platoon.” That is, after she resisted his
17
United States v. Bright, No. 07-0269/AR
advances, he subjected the platoon to rigorous physical training
in the form of push-ups as a consequence for Private W’s
decision not to return his pages. She also testified that he
threatened to revoke her Gold Pass status, which would require
her to remain on base.
The facts preceding each of the sexual encounters in this
case differ significantly from those of United States v. Clark,
35 M.J. 432, 435 (C.M.A. 1992), and Simpson, 58 M.J. at 377,
upon which the Government relies. In Clark, the evidence
supported findings that the appellant confined the victim in an
isolated area in a small shed with brick walls and a metal door
and that he positioned himself between the door and the victim.
35 M.J. at 433-35. In Simpson, the evidence supported findings
that the appellant refused to accept verbal and physical
indications that his victims were not willing participants and
that he used his authority over the victims to issue orders that
placed them in the isolated locations where the charged rapes
occurred. 58 M.J. at 377. In this case, the sexual encounters
took place in hotel rooms to which Private W traveled
unaccompanied by Bright after agreeing to meet him for sex.
We next consider whether the record could support a finding
that resistance was overcome by threats of death or grievous
bodily injury. We conclude that the record could not support
such a finding. There is no evidence that the extra physical
18
United States v. Bright, No. 07-0269/AR
training endured by the platoon, while no doubt grueling,
created a risk of death or grievous bodily injury. Nor could a
reasonable factfinder infer that the heated statements Bright
made in formation or in his office when he addressed Private M’s
and Private W’s performance as squad leaders conveyed threats of
death or grievous bodily harm if Private W resisted his sexual
advances.
Indeed, Private W never testified that Bright threatened
her with death or grievous bodily harm. Rather, when given an
opportunity to explain the threats at issue, Bright was explicit
that: “He threatened to take away my pass status and he
threatened to keep me on lock down for the entire eight months
that I was at Bravo Company.” She subsequently reiterated this
concern: “[H]e told me he would take away my pass status and
that I’d be locked down at Bravo company for the entire time --
for the entire time that I would be there. And I didn’t want to
do that and that life would be a living hell.”
We do not question that Bright’s conduct -- an egregious
abuse of his position for which he was charged and convicted of
maltreatment -- was criminal. However, we cannot conclude that
a reasonable factfinder could find that the particular
circumstances involved in this case show that “resistance [was]
overcome by threats of death or great bodily harm” necessary to
sustain a conviction for rape. MCM pt. IV, para. 45.c.(1)(b).
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For all the reasons stated above, we hold that a reasonable
factfinder could not find that the evidence establishes lack of
consent beyond a reasonable doubt. Accordingly, we hold that
the evidence is not legally sufficient to support the three rape
specifications. Because our legal conclusions regarding the
element of lack of consent resolves the question of legal
sufficiency, we do not consider the matter of constructive
force.
DECISION
As the evidence in this case is legally insufficient to
support convictions for rape on February 8, 2002, February 15,
2002, and April 5, 2002, the findings of guilty as to Charge I,
Specifications 2, 3, and 5 are set aside. The remaining
findings are affirmed. The record of trial is returned to the
Judge Advocate General of the Army for remand to the United
States Army Court of Criminal Appeals. The lower court may
reassess the sentence or order a rehearing on sentence, as
appropriate.
20