Court of Appeals for the Armed Forces

United States v. Cole

[AFCCA] uph[eld the Appellant's] sentence for offenses that he pled guilty to, which included simple assault with an unloaded firearm. Despite finding that the military judge erred during the providence inquiry by “indicating that Appellant was charged with the offense of assault consummated by a battery and in advising and conducting a colloquy on matters that were not part of the charged offense,” [T]he AFCCA concluded that “such errors did not substantially influence Appellant’s adjudged sentence,[and affirmed the sentence]. We disagree and reverse the decision of the AFCCA as to the sentence.

Judge Johnson writes for a unanimous bench.

[W]​e hold that the military judge improperly identified [the] Specification as assault consummated by battery, and his erroneous view of the elements of the offense alleged makes it unclear whether he sentenced Appellant for aggravated assault with a dangerous weapon or simple assault with an unloaded firearm, thereby materially prejudicing Appellant’s substantial right to be sentenced for the correct offense based on a consideration of the nature, circumstances, and seriousness of the offense.

• The military judge purported to explain the elements of the simple assault.
• In doing so, the military judge referred to the offense as an assault consummated by a battery, but he instructed on the elements of an aggravated assault with a dangerous weapon.
• The military judge "properly" instructed on the wrong offense.
• The Appellant agreed that's what he did, and neither the defense counsel nor the trial counsel pointed out any error.
• Referring to the stipulation, the military judge asked the Appellant if he agreed (which he did) that the unloaded weapon was a dangerous weapon.
• AFCCA determined that the plea was improvident, but the mistake did not affect the sentence, because the facts did not support the aggravated offense and the military judge knew that and probably didn't consider that. Which seems to cut against the idea that what's said in providency can be considered in sentencing.
• There being no objections, CAAF first rehearses the prejudice standards for the error. CAAF decides not to enter the debate on whether the error here was constitutional or nonconstitutional--which would affect the government burden on the prejudice. Rather, the held "that the military judge’s misapprehension materially prejudiced Appellant’s substantial rights."

We reject as clearly erroneous the AFCCA’s finding that “[t]he record does not indicate that the military judge considered extra aggravating factors during sentencing.” According to the AFCCA, the military judge knew that the weapon used by Appellant was not a dangerous weapon because it was unloaded, and thus the military judge knew that it could not inflict death or grievous bodily harm. Even though the military judge understood that the firearm was unloaded, his questions to Appellant indicate that he still believed it was a dangerous weapon. Additionally, the military judge improperly advised Appellant that he “must have intended to do the bodily harm.” (Emphasis added.) Then the military judge elicited Appellant’s agreement that his actions met this higher intent standard than what is required for the offer-type simple assault charged. In requiring Appellant to testify that he used a dangerous weapon and intended to do bodily harm, the military judge amplified both the means and the intent beyond what was required for the offense alleged in Specification.

CAAF then takes on the standard that a military judge is presumed to know and follow the law meme.

Here, there is clear evidence from the military judge’s errors regarding Specification 2 of Charge II that he did not know the applicable law, and thus any presumption that he knew and followed the law is lost.

Query: Does Judge Johnson's comment about the military judge apply equally to the trial and defense counsel, who might have sorted this out ahead of time during the plea negotiations, and when either counsel could have objected rather than let it happen? AFCCA does note that the trial counsel did not use any of the "aggravating" circumstances in arguing for the sentence, but perhaps trial counsel had a duty to do justice by clarifying the charge with the military judge, just as the defense counsel had a duty to intercede.

In reading AFCCA's 2023 decision, you will see that the error addressed by CAAF was specified by AFCCA.

​On appeal, Appellant raises two assignments of error, claiming: (1) Appellant’s trial defense counsel were ineffective “for at least six reasons,” specifically when they: (i) failed to request a sanity board under Rule for Courts-Martial (R.C.M.) 706, (ii) failed to adequately investigate Appellant’s traumatic brain injury (TBI) for mitigation, (iii) failed to adequately investigate the impact of Appellant’s alcoholism on the charged offenses, (iv) failed to object to improper evidence and argument presented by trial counsel during presentencing, (v) presented a short sentencing argument that did not effectively lay out a case for leniency at sentencing, and (vi) advised Appellant to waive clemency on an incorrect legal basis; and (2) the military judge’s failure to conduct further inquiry into Appellant’s TBI made his pleas of guilty improvident. 

The Appellant was sentenced in June 2021, and it is now three years later. One suspects he has served time up to the MRD for his sentence of fourteen months of confinement. He will have to be recalled from appellate leave, thus disrupting any efforts to get his life sorted in the civilian world (unless . . . ).