71 M.J. 430
C.A.A.F.2013Background
- Garner was found guilty by general court-martial of rape, forcible sodomy, and indecent assault of his biological daughter; possessing child pornography; desertion; and disobeying a no-contact order.
- Confinement and other punishments were adjudged: reduction to E-1, forfeiture of all pay and allowances, life confinement, and a dishonorable discharge.
- CCA affirmed the findings and sentence; the Army case citation is United States v. Garner, No. ARMY 20080401.
- The military judge initially instructed on punishments and reconsideration procedures; a sentence worksheet ambiguity led to continued deliberations and a later convening of an Article 39(a) hearing.
- Garner challenged (I) the failure to give a reconsideration instruction, and (II) failure to allege the terminal element in Specification 1 of Charge III.
- This court affirmed except for Specification 1 of Charge III and the sentence, and remanded for further consideration consistent with Fosler and Humphries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reconsideration instruction error | Garner asserts the judge erred by not sua sponte instructing reconsideration. | Government contends ambiguity meant mere clarification under 1009(c), not reconsideration, and 1009(e) did not apply. | Error found but harmless; affirmed as to Issue I. |
| Terminal element and Specification 1 of Charge II/III | Garner argued specification lacked terminal element; Fosler/Humphries guide remand for prejudice analysis. | Government argued need for remand to evaluate plain error under Humphries/Fosler; ambiguities affected notation but not elements. | Remanded for further consideration consistent with Fosler and Humphries. |
Key Cases Cited
- Ober, 66 M.J. 393 (C.A.A.F. 2008) (district court’s instruction duties in sentencing reviewed de novo)
- Garner, 71 M.J. 430 (C.A.A.F. 2013) (reconsideration procedures and potential plain error in sentencing)
- Fosler, 70 M.J. 225 (C.A.A.F. 2011) (clarifies Article 134 offense elements and remand considerations)
- Humphries, 71 M.J. 209 (C.A.A.F. 2012) (guidance on plain error and remand in 1009 contexts)
- Perkinson, 16 M.J. 400 (C.M.A. 1983) (discussion of reconsideration and sentencing procedures)
- King, 13 M.J. 838 (A.C.M.R. 1982) (early treatment of reconsideration procedures)
- Jones, 3 M.J. 348 (C.M.A. 1977) (reconsideration concepts in earlier MCM era)
- Robinson, 4 USCMA 12 (C.M.R. 1954) (historical context of reconsideration rules)