United States v. Cieslewicz

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
Appellate Military Judges
UNITED STATES OF AMERICA
v.
TYLER R. CIESLEWICZ
SECOND LIEUTENANT (O-1), U.S. MARINE CORPS
NMCCA 201300421
GENERAL COURT-MARTIAL
Sentence Adjudged: 7 August 2013.
Military Judge: Col Daniel Daugherty, USMC.
Convening Authority: Commanding General, Training Command,
Quantico, VA.
Staff Judge Advocate's Recommendation: LtCol M.E. Sayegh,
USMC.
For Appellant: CDR Michael C. Pallesen, JAGC, USN.
For Appellee: Capt Suzanne M. Dempsey, USMC.
26 June 2014
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of two
specifications of disrespect toward a superior commissioned
officer, drunk on duty, conduct unbecoming an officer and a
gentleman, drunk and disorderly conduct, and wrongful
communication of a threat, in violation of Articles 89, 112,
133, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 889, 912, 933, and 934. The military judge sentenced the
appellant to a reprimand, confinement for 220 days, forfeiture
of all pay and allowances, and a dismissal.1 With the exception
of the reprimand and confinement in excess of 84 days, the
convening authority (CA) approved the sentence as adjudged.
In the appellant’s sole assignment of error, he contends
that the approved sentence is inappropriately severe. After
carefully considering the record of trial and the submissions of
the parties, we are convinced that the findings and sentence are
correct in law and fact, and that no error materially
prejudicial to the substantial rights of the appellant occurred.
Arts. 59(a) and 66(c), UCMJ.
Factual Background
The appellant reported to The Basic School (TBS) on 5
November 2012 and was assigned to Company A, Basic Officer
Course 1-13. Within approximately a week of his arrival, the
appellant checked into a local hotel for a period of four days.
He caused substantial damage to his assigned room and was
charged with a misdemeanor violation in civilian court. Because
alcohol served as a reason for the appellant having destroyed
hotel property in the amount of more than $500.00, the
appellant’s command directed the appellant to attend the 30-day
Inpatient Alcohol Treatment Program at Fort Belvoir. The
appellant was dropped from Company A and assigned to Company M.
Following his completion of the in-patient alcohol
treatment program on 27 December 2013, the appellant relapsed on
13 January 2013 and was readmitted to in-patient alcohol
treatment. The appellant completed treatment and was released
on 31 January 2013.
On 12 February 2013, the appellant was drunk on duty and
underwent a fitness for duty test. Based on his level of
intoxication, medical personnel determined that the appellant
was not competent to perform duties. On 2 March 2013, he was
arrested by the Stafford County Sheriff’s Office for public
intoxication. Released from jail on 3 March 2013 at
approximately 1700, the appellant failed to report for duty the
next morning.
1
Following the announcement of sentence, the military judge recommended that
the convening authority suspend the dismissal and all confinement in excess
of time served. Record at 79.
2
Based on his three separate alcohol-related incidents,
charges were preferred against the appellant on 12 March 2013.
The appellant negotiated a pretrial agreement to resolve his
charges at nonjudicial punishment (NJP). On 26 March 2013, the
Commanding Officer, The Basic School, imposed NJP on the
appellant. Following imposition of NJP, the appellant was once
again assigned to in-patient treatment at Fort Belvoir.
The appellant was released from in-patient alcohol
treatment on 23 April 2013. He returned to TBS to complete his
out-processing and final physical prior to going on leave
awaiting separation from the Marine Corps.
On 15 May 2013, the appellant agreed to stand duty as the
Junior Officer of the Day (JOOD) from 1200 until 1700. Prior to
assuming JOOD duty, he drank vodka to alleviate his hangover
from the day before and continued to drink while on duty. At
approximately 1245, the Executive Officer, TBS, noticed that the
appellant was intoxicated. The appellant’s company commander
escorted the appellant to the company office and the appellant
became combative and argumentative. The Quantico Provost
Marshall’s Office (PMO), Marine Corps Base Quantico, was
contacted and Officer GY apprehended the appellant and
transported him to PMO headquarters. During his transportation,
the appellant offered Officer GY money in exchange for allowing
him to escape into the woods. His offer rebuffed, the appellant
arrived at PMO headquarters and while there, the appellant
refused Officer GY’s request to remain seated and walked towards
the exit prompting Officer GY to chase down and subdue the
appellant. After approximately two hours of processing, Officer
GY transported the appellant to the Rappahannock Regional Jail
to begin pretrial confinement. The appellant’s company
commander accompanied Officer GY. While in the car, the
appellant was disrespectful to his company commander and later
threatened to kill him. The appellant’s company executive
officer arrived at the Rappahannock Regional Jail and when the
appellant saw him, he became disrespectful and unleashed a
torrent of invective.2
2
When the appellant saw Capt DJ, his executive officer, the appellant said:
“Captain [DJ], you f***** me. You f***** me, Captain [DJ]. Does this make
you feel good? Do you feel like a man? I bet you got that paperwork
correct. They won’t let me be a Marine officer, but they let someone like
Captain [DJ] be one.” PE 3 at 6.
3
Sentence Appropriateness
In accordance with Article 66(c), UCMJ, a military
appellate court “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence as it finds
correct in law and fact and determines, on the basis of the
entire record, should be approved.” This court reviews the
appropriateness of the sentence de novo. United States v.
Baier, 60 M.J. 382, 384 (C.A.A.F. 2005). “Sentence
appropriateness involves the judicial function of assuring that
justice is done and that the accused gets the punishment he
deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). This requires “‘individualized consideration’ of the
particular accused ‘on the basis of the nature and seriousness
of the offense and the character of the offender.’” United
States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting
United States v. Mamaluy, 27 C.M.R. 176, 180-81 (C.M.A. 1959)).
After review of the entire record, we find that the
sentence is appropriate for this offender and his offenses.
Baier, 60 M.J. at 384-85; Healy, 26 M.J. at 395-96; Snelling, 14
M.J. at 268. In addition to considering the nature and the
seriousness of the specific offenses committed by the appellant,
we have carefully considered the individual characteristics of
the appellant, his prior record, and his diagnosis of alcohol
dependency. Considering the entire record, we conclude that
justice is done and that the appellant receives the punishment
he deserves by affirming the sentence as approved by the CA.
Granting sentence relief at this point would be to engage in
dispensing clemency -- a prerogative uniquely reserved for the
CA -- and we decline to do so. Healy, 26 M.J. at 395-96.
Conclusion
The findings and the sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
4