Baker is remanded because "the convening authority violated Appellant’s basic due process rights when she decided to take no action on sentence before allowing Appellant five days to respond to the victim’s post-trial submission of matters in accordance with Rule for CourtsMartial (R.C.M.) 1106(d)(3)"
Appellant pled guilty to three sexual abuses of a child and of receiving and viewing CP; for which he was sentenced to 15 months, RiR, and a DD.
That leaves two issues on table when the case comes back one of which asks "whether trial counsel’s sentencing argument improperly referenced victim impact and criticized Appellant’s apology when no victim impact evidence had been admitted."
Note to DC. "Appellant did not file a motion with the military judge alleging convening authority error, as permitted under R.C.M. 1104(b)(2)."
In remanding, the court notes that "In this case, “some colorable showing of possible prejudice” is demonstrated because the R.C.M. 1106A submission contained new information, Appellant has articulated how he would have responded to the victim’s submission had he been given the required opportunity, that his response would have been different from his initial clemency submission, and the convening authority could have granted some clemency relief."
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Joint R. App. Pro.
Army Crim. L. Deskbook